¶1(dissenting) — I respectfully dissent. The facts stated by the majority are incomplete and controlling *714authority is disregarded by reliance upon an immaterial distinction. The guaranties embodied in the Fourth Amendment implicated here are essential not only to our ordered sense of liberty, but also to the very foundations of free government. Those fundamental principles insure human dignity by means of restraints of governmental invasion of privacy.
¶2Detective Edward Roesler obtained a search warrant for the premises at 6539 Third Avenue Northwest in Seattle. The warrant named no persons, but in his affidavit, Detective Roesler referred to "a male known as Clifford . . . who resides at the above address." Detective Richard Buckland, Jr., had not read the warrant or the supporting affidavit; he knew only that they were looking for narcotics.
¶3When the officers arrived at the residence, Detectives Roesler and Baylor, and Sergeant Scheuffele, the sergeant in charge, entered while Detective Buckland remained outside momentarily to make sure no one left through the back door. Upon the officers' entry there were in the living room a young woman, a small infant, Clifton Broadnax and the defendant. Detective Roesler instructed Broadnax and Thompson each to put their hands up.
¶4After about 30 seconds outside the rear of the building, Detective Buckland entered. He saw Sergeant Scheuffele, the infant, the woman, Broadnax and Thompson; Broadnax and Thompson were standing with their hands on their heads. Detective Buckland asked "Would you like him [Thompson] to be searched?" and the sergeant gave an affirmative response. Detective Buckland began the search of the defendant.
¶5Sergeant Scheuffele testified: "Buckland asked me if Thompson had been searched and I took that to mean frisked and I answered that he hadn't because he hadn't." Detective Buckland was assuming that Thompson was already under arrest. He testified on cross-examination:
Q . . . Now, when you searched Mr. Thompson . . ., to your knowledge no narcotics had been found. Is that correct?
*715A That's correct. Well, excuse me. If I may back up on that. I presumed something was found because when I entered I presumed that the defendant was under arrest.
Q And then later on you found no one was under arrest. Is that correct?
A That's correct.
¶6Neither Sergeant Scheuffele nor Detective Buckland testified or stated that there were any fears that Thompson might have weapons. Sergeant Scheuffele who was present in the room before and during the search twice testified that he saw no reason to do a patdown "as long as we could see their hands."
¶7The State and the majority seek to justify the seizure of the evidence by turning a search of a person into a "pat-down frisk" permissible under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), which resulted in probable cause to arrest. Even if we treat the search as a patdown frisk there was no justification for the frisk. Even if the frisk could be justified, seizure of the contraband was beyond the scope of the frisk. Further, there was no probable cause to arrest.
¶8Propriety of Frisk
¶9While this case was pending before this court, the United States Supreme Court issued its opinion in Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). Ybarra was a patron of a public tavern; during the execution of a warrant authorizing a search of the premises and the bartender, Ybarra was subjected to a pat-down frisk by an officer who felt a "cigarette pack with objects in it" in Ybarra's pants pocket. He did not remove this pack but moved on to pat down other customers. Later he returned and removed the cigarette pack from Ybarra's pocket. Inside the pack he found six tinfoil packets of heroin. As here, the State argued that the "pat down yielded probable cause to believe that Ybarra was carrying narcotics and that this probable cause constitutionally supported the second search. ..." Ybarra, at 92. The court, not reaching *716that precise question, held that the patdown was unjustified. In language directly applicable to this case, the court said:
Nothing in Terrycan be understood to allow a generalized "cursory search for weapons" or, indeed, any search whatever for anything but weapons. The "narrow scope" of the Terryexception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.
¶10Ybarra, at 93-94. The court went on:
The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a pat down of a person for weapons.
¶11Ybarra, at 92-93. See also State v. Allen, 93 Wn.2d 170, 606 P.2d 1235 (1980).
¶12In the present case there is express testimony that the officers had no such reasonable belief or suspicion. Hence a frisk of Thompson cannot be sustained in light of Ybarra. The majority first quotes material from Ybarrairrelevant to the propriety of the frisk, then expeditiously ignores the presence of others on the premises than Broadnax and Thompson, in an apparent effort to shore up the mistaken notion that a frisk is more justifiable when there are only two adults on a private premises than when there are many on a public premises. Aside from being based on wrong facts, this reasoning is fallacious, since as Ybarraexpressly reaffirmed, a frisk must be based on reasonable subjective fear by the officers. In Ybarrathe frisk was impermissible when based solely on Ybarra's presence in the tavern. It must follow that a frisk of Thompson here is unjustified when based solely on his presence in a private residence while it is being searched pursuant to a search warrant. The United States Supreme Court's interpretation of the Fourth Amendment is binding upon this court by force of the supremacy clause. Martin v. Hunter's Lessee, 14 U.S. (1 *717Wheat.) 304, 340-41, 4 L. Ed. 97 (1816); Cooper v. Aaron, 358 U.S. 1, 17-19, 3 L. Ed. 2d 5, 78 S. Ct. 1401 (1958); Scruggs v. Rhay, 70 Wn.2d 755, 760, 425 P.2d 364 (1967).
¶13Even if the patdown were justifiable, which it is not, such patdown must be limited in scope to a determination whether the suspect is armed. As our Supreme Court recently held:
Assuming the legality of the frisk, the discovery of an unidentified "bulge" in the course of the patdown would entitle the officer to assure himself that it was not a weapon. After satisfying himself the "bulge" was not a weapon, the officer had no valid reason to further invade Allen's right to be free of. police intrusion absent reasonable cause to arrest. See United States v. Thompson, 597 F.2d 187 (9th Cir. 1979).
. . . [Ojnce it is ascertained that no weapon is involved, the government's limited authority to invade the individual's right to be free of police intrusion is spent. Terry v. Ohio, supra.
¶14State v. Allen, supra at 172-73.
¶15The mandate of Ybarraand the recognition of its holdings by our Supreme Court in State v. Allen, supra,is clear: a patdown must be based on a reasonable apprehension for the safety of the officers, and when no weapons are apparent further intrusions are constitutionally impermissible absent probable cause to arrest.
¶16Probable Cause
¶17Again assuming that the patdown or frisk of Thompson for weapons could be considered permissible, the subsequent search of Thompson's left shirt pocket cannot be justified by a probable cause analysis. The majority state that the seizure of the balloon was justified because the officer had recognized the bulge as a balloon containing narcotics. They rely upon cases holding that probable cause to arrest may be based upon the detection of the odor of marijuana. State v. Hammond, 24 Wn. App. 596, 603 P.2d 377 (1979); State v. Huckaby, 15 Wn. App. 280, 549 P.2d 35*718(1976); State v. Compton, 13 Wn. App. 863, 538 P.2d 861 (1975). The majority then conclude:
Logically, there is no difference in power of recognition between use of the tactile rather than the visual sense. An object may be perceived by touch equally as well as by sight.
¶18I have no problem with the well recognized rule that an odor can be sufficiently distinctive to establish probable cause to search and arrest. Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367 (1948). Furthermore, the tactile sense can also be sufficiently distinctive to warrant, for example, a search for weapons. Terry v. Ohio, supra; State v. Brooks, 3 Wn. App. 769, 479 P.2d 544 (1970). Neither reason nor authority, however, supports the proposition that prior experience with balloons containing heroin is sufficient to warrant a reasonable belief that " [a] small bulge that . . . gives" contains controlled substances. Certainly the extraction of the pack of cigarettes from Ybarra's pocket similarly could not be justified by such "reasonable belief." The officer's observation is ambiguous and totally lacks the distinctive character of the smell of marijuana or the hardness of a weapon.
¶19After today's opinion every patdown for weapons will give rise to probable cause for arrest unless the subject's pockets are empty. This tragic result is destructive of the fundamental guaranties of the Fourth Amendment.
¶20Basic Principles
¶21There are occasions when reverification of our basic tenets is needed. The framers of our state constitution felt similarly when they wrote " [a] frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." Const, art. 1, § 32. When values so basic as those of the Fourth Amendment are being honored only in their breach, it is past the time to consider fundamental principles.
¶22*719The principle at stake in any Fourth Amendment case is limitation of governmental conduct by rule of law. All governmental authority, whether exercised by legislators, judges, or members of the executive branch must be so limited. The converse of such limitation is unbridled, and too often roughshod, discretion. An early apologist for the rule of law stated:
Government (to define it de jure, or according to ancient prudence) is an art whereby a civil society of men is instituted and preserved upon the foundation of common right or interest; or (to follow Aristotle and Livy) it is the empire of laws, and not of men.
And government (to define it de facto, or according to modern prudence) is an art whereby some man, or some few men, subject a city or a nation, and rule it according to his or their private interest: which, because the laws in such cases are made according to the interest of a man, or of some few families, may be said to be the empire of men, and not of laws.
¶23J. Harrington, The Commonwealth of Oceana, 1656, collected and methodized and reviewed by John Toland, 1777, quoted by A. Mason, Free Government in the Making 38 (3d ed. 1965). The principle implicit in Harrington's writing is a fundamental element of our constitutional system. John Marshall wrote "[t]he government of the United States has been emphatically termed a government of laws, and not of men." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L. Ed. 60 (1803).
¶24A brief history of the Fourth Amendment, which placed in the judiciary the responsibility to develop neutral principles of law to govern intrusions by agents of the government into private spaces of our people, demonstrates that the framers intended it as one of the chief engines within our constitutional mechanism for the effectuation of this principle. Even the Magna Charta contained a provision, chapter 39, aimed at curing the King's practice of arbitrarily seizing the person or property of freemen. 2 J. Lindgard, History of England 355-56 (1849). In Huckle v. Money, 2 Wils. K.B. 206, 95 Eng. Rep. 768 (1763), Justice Pratt held *720that general warrants were illegal, declaring "[t]o enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour." The cases of Wilkes v. Wood, 19 How. St. Tr. 1153 (1763) and Entick v. Carrington, 19 How. St. Tr. 1029 (1765) moved further toward the requirement for specificity in warrants. Despite these advances in the English law, the American colonies were subjected to writs of assistance, similar to general warrants except of longer duration. One lawyer, James Otis, arguing unsuccessfully against such writs saw them as "the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book," insofar as they placed "the liberty of every man in the hands of every petty officer." 2 The Works of John Adams 523-24 (C. Adams ed. 1850); see also T. Cooley, A Treatise on Constitutional Limitations 301-03 (8th ed. 1927).
¶25Following the revolution several states sought to curb the discretion of searching officers by enacting bills of rights.
¶26Virginia Const, art. 1, § 10 provided:
That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.
¶272 B. Poore, Federal and State Constitutions 1909 (1877). At least six other state declarations or bills of rights followed Virginia by including some provisions regarding search and seizure. N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution 13-14 (1937). While the Constitution was initially ratified without a bill of rights, recognition of popular sentiment impelled President Washington to refer to the need for amendments in his inaugural address. 10 Writings of George Washington 385-86 (W.C. Ford ed. 1891). Within *721this historical framework the Fourth Amendment was adopted. If there be one lesson deducible from this history, it is that the taproot of the Fourth Amendment reaches down to the very foundation upon which our whole system of free government is based.
¶28Against this historical backdrop we can see in clear focus how "'jealously and carefully drawn'" must be any exceptions to the Fourth Amendment's warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 455, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). With the Supreme Court's mention of "exigent circumstances" in Coolidge, a host of exceptions grew up. As I demonstrated at perhaps too great length in State v. Thompson, 24 Wn. App. 321, 327 et seq., 601 P.2d 1284 (1979), the United States Supreme Court is still jealous and careful about exceptions to the Fourth Amendment guaranties. Now Ybarraadds further support to that position.
¶29In summary, observance of the Fourth Amendment is fundamental to our whole system of free government. The ringing words of Oliver Wendell Holmes are as relevant today as they were more than 50 years ago: "for my part I think it a less evil that some criminals should escape than that the Government should play an ignoble part." Justice Holmes, dissenting in Olmstead v. United States, 277 U.S. 438, 470, 72 L. Ed. 944, 48 S. Ct. 564, 66 A.L.R. 376 (1928). I believe this to be true because
In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. ... To declare that in the administration of the criminal law the end justifies the means . . . would bring terrible retribution.
¶30Olmstead v. United States, supra at 485 (Justice Brandéis, dissenting). This admonition is true for the police, the exemplars of lawful authority for the common man, but is a compelling verity for judges, since courts have "neither *722force nor will, but merely judgment." The Federalist No. 78 (A. Hamilton).
¶31I would suppress the evidence and remand for a new trial.
¶32Reconsideration denied June 19, 1980.
¶33Remanded by Supreme Court to Court of Appeals October 10, 1980.