¶1concurring. I concur with the majority opinion and would like to make further observations and comments.
¶2In this case Charles Allen testified (p. 20): ". . . and so after shining the light on the inside of the car, and he said the pipe was on the driver’s side which it was not, it was on the passenger’s side, on the right side, and it was sticking out under the seat there where you could see it in clear view. . .”
¶3In MacDougald the same witness testified (p. 6): "Q. Did *505you look in that car? A. Yes. Q. Did you see something in there? A. Well, on the right side, on the passenger side in the front seat up under the seat there was a bottle containing — and well, what they use as a smoke pipe under the right seat on the passenger side up under the seat there and there was a bottle containing some kind of liquid fluid. Q. Is this the type of pipe commonly called the type used for smoking marijuana? A. Yes. . . Q. Did you then search this car? A. Well, I didn’t search the car right then. I got the bottle out because I didn’t have to search.”
¶4Both cases hinge, on this testimony, because unless the sight of a "hash pipe” constituted the commission of a crime in the presence of the officers the arrest without a warrant was illegal and neither pulling the plastic envelope from Davidson’s pocket or searching MacDougald’s boot was legal as being (a) made in connection with a valid arrest under warrant or (b) with a crime committed in the officer’s presence although without a warrant. The decision in MacDougald, being the testimony of the same witness as to the same transaction on an identical motion to suppress, constitutes a holding that no crime was being committed in the officers’ presence at the time the automobile was searched. Therefore, seizing the envelope from Davidson’s pocket is equally as illegal as seizing the envelope in MacDougald’s boot. In view of the holding in MacDougald we have no option but to reverse.
¶5It is also my opinion that a reversal is proper. The question was dealt with at length in Anderson v. State, 123 Ga. App. 57 (179 SE2d 286) quoting from Charles Reich’s article "Police Questioning of Law Abiding Citizens” and from Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543, 39 ALR 790), holding justifiable the search of an automobile where the officer has probable cause to believe that what he sees within it without a search is property the possession of which is itself a crime. "The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.” Id., p. 61. Possession of a "hash *506pipe” is not illegal and will not justify an otherwise illegal search (although it may well constitute probable cause for believing the owner possesses marijuana to smoke in it) unless we substitute for the requirement that a crime is being committed in the officer’s presence (Code § 27-207) the lesser requirement that the officer show probable cause for an inference that the suspect has committed or is commiting a crime. This does in fact appear to be the holding in Peters v. State, 114 Ga. App. 595 (152 SE2d 647) which, quoting from Beck v. Ohio, 379 U. S. 89 (85 SC 223, 13 LE2d 142), states that the constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had "trustworthy information . . . sufficient to warrant a prudent man in believing that the defendant had committed ... an offense.” This is the test for probable cause sufficient to cause a warrant to issue. It is not the test in Georgia for an arrest without a warrant; otherwise, there would be no difference for arrest with and without a warrant and it would not be necessary to obtain one. Both Petersand Beck were reversed because constitutional standards were not met — in the Beck case the ruling was simply that regardless of what it takes legally to validate an arrest without a warrant, it certainly takes as great a showing of probable cause as to obtain a warrant. The Beck case is of course correct in holding (and this was the only essential holding in that case) that if the evidence would not justify the issuance of a warrant it can never justify arrest without one. The factual difference in the Petersand the Beck cases lies in the difference between the statute laws of Georgia and Ohio. As held in United States v. Pierce, 124 FSupp. 264 (3) (US DC, N. D. Ohio): "State law determines the validity of arrests without warrant.” See United States v. Di Re, 332 U. S. 581 (68 SC 222, 92 LE 210). The revised Code of Ohio, § 2935.04 allows arrest without a warrant when there is reasonable ground to believe a felony has been committed. Our Code on the other hand only allows such arrest if the offense is being committed in the presence of an officer *507(§27-207), or by either an officer or private person "upon reasonable and probable grounds of suspicion” — that is, on probable cause — if (1) the offense is a felony and (2) the offender is attempting to escape. § 27-111.
¶6Therefore, since no escape was being attempted and no crime was being committed in the presence of the officers, and all that they had to go on was the fact that they saw an object "under the seat” which looked like a "hash pipe” and therefore authorized the inference that whoever possessed it might also possess marijuana to smoke in it, extracting a packet from this defendant’s pocket was equally as illegal as extracting a similar packet from MacDougald’s boot. An illegal search can never be justified by the fruits of the search, and evidence illegally obtained may not be admitted against the defendant.
¶7I further urge that Peters v. State be modified insofar as it appears to hold that search without a warrant can be based on an arrest merely on the inference that a crime has been committed.
¶8I am authorized to state that Judge Clark concurs in what is said above.