¶1(dissenting). What the majority says with respect to the arrests and both searches would certainly be applicable if warrants had been issued for the arrest of the two men and they had been arrested and the car in their possession had been searched. The officers had sufficient information upon which a complaint alleging the violation in October, 1948, could properly have been made and upon which a warrant for the arrest of the two big men referred to could properly have been issued. The officers with the information which they had to the effect that the same two men who were suspected of having stolen goods from the Kiefer store in October, 1948, had again been in the store on January 13, 1950, and that they answered the description of the men recalled by Kiefer’s employees to have been in the store at the earlier date would have been justified in arresting the two men had they had a warrant. But I am convinced that without warrants Officers Kohfeldt and Spanbauer did not have sufficient or effective information to warrant taking even the two big men into custody in January, 1950. Much less did they have sufficient or effective information to justify the arrest of the defendant Cox and the search of the automobile in his possession without a warrant. Even now after the trial it appears that there was no reason to suspect that Cox had been a party to the offense committed in October, 1948.
¶2We have recently heard and read much with respect to establishing “guilt by association.” Are we to say that because Cox was found in the company of the two big men on January 13, 1950, with no suspicion that he had been with them in October, 1948, his association with them on the later *173date justifies his arrest and the search of the automobile in his possession? If guilt might in some cases be established by association it certainly would be stretching the doctrine to its very limit to apply it here.
¶3At the time that the contents of the automobile were first observed by the police officers and the defendant was taken into custody no one knew or even suspected that an offense, in which either of the three men might have been involved, had been committed on January 13, 1950. All of the state’s witnesses agree that the activity of the officers on that day was directed toward the apprehension of the two men who were suspected of having stolen goods from the Kiefer store in October, 1948.
¶4With respect to that offense not even a suspicion was attached to Cox.
¶5The officers who made the first observation of the automobile did not testify that they suspected that it contained the goods stolen in October, and, quite naturally, we have not been asked to infer that they had such suspicion.
¶6This examination of the automobile, made by the officers before they arrested the defendant, was an illegal search and did not justify the arrest. Looking through a car window the officers saw some clothes lying over some luggage, and a pair of pants, “the ends of them still had the pinking edge on.” Certainly, that observation, coupled with nothing except a report that two large men were suspected of being in Nee-nah and that they were suspected of having stolen some clothing fourteen or fifteen months before, and lacking any information that any offense had been committed on the day of the arrest with which they or the defendant had been connected, cannot be held to be sufficient to warrant the search, unless the rule of Hoyer v. State, 180 Wis. 407, 193 N. W. 89, is to be entirely ignored.
¶7In that case two deputy sheriffs discovered an automobile which had been wrecked. They could “smell something *174funny,” an odor coming from the car. They searched it and found contraband liquor. Against the protest of the owner the car was taken to the county jail. He was arrested on the following day. The court held that the search was unlawful. In the Hoyer Case the suspicion of the officers was aroused by the smell of liquor; here it was aroused by the presence in defendant’s car of an innocuous pair of pants. It seems to me that the odor of contraband liquor comes nearer being a suspicious circumstance than does the presence in an automobile of a pair of pants “with pinking on.” It follows as in the Hoyer Case, that the search was illegal and did not afford a basis for the subsequent arrest. Allen v. State, 183 Wis. 323, 333, 197 N. W. 808.
¶8There is no other basis for the arrest. It was illegal. Whether it be sought to justify the arrest under the common law or by virtue of any applicable statute the effort fails. First, the officers had no reason to suspect nor did they suspect that an offense had been committed by the three men or either of them on January 13, 1950. Assuming, however, for purposes of argument only, that they had or did, none, if it had been a misdemeanor, was committed in'their presence, Mantei v. State, 210 Wis. 1, 245 N. W. 683, and, if it had been a felony committed without their presence, the arrest was made without proof of probable cause, Bergeron v. Peyton, 106 Wis. 377, 82 N. W. 291, which is entirely lacking in this case.
¶9The term “probable cause,” as it is applied to an arrest without warrant and as it is used in the Bergeron Case, may properly be defined as it was in State v. Baltes, 183 Wis. 545, 198 N. W. 282, where the requirement for the issuance of a search warrant was considered. The court there said that, while the term does not require positive proof of the existence of facts upon which a search warrant is issued “The term probable cause has a well-defined meaning in the law, which *175is the existence of such facts and circumstances as would excite an honest belief in a reasonable mind, acting on all the facts and circumstances within the knowledge of the magistrate, that the charge made by the applicant for the warrant is true.” (p. 549.)
¶10Should a less stringent definition be given the term when it is applied to the authority of a police officer to make an arrest without process ?
¶11Sec. 62.09 (13), Stats., which authorizes an arrest without process by a city police officer of a person “found in the city . . . violating any law of the state or ordinance of such city” does not relax any of the rules referred to.
¶12When the arrest was made there was neither fact nor circumstance to excite an honest belief in a reasonable mind that the defendant Cox had at any time committed any offense in the vicinity of Neenah. The fact or circumstance that he had in his car an innocuous pair of pants and other clothing, the pants “with pinking on,” if it had been discovered as the result of a valid search, could not possibly be said to excite the honest belief referred to in the Bakes Case. Nor could the hearsay information received by the arresting officers that the same two big men suspected of larceny committed in October, 1948, were back in Neenah. With respect to the clothing, a person may lawfully possess goods of that kind just as he might lawfully have possessed intoxicating liquor during the period of so-called prohibition. Allen v. State, supra; Testolin v. State, 188 Wis. 275, 205 N. W. 825; Jokosh v. State, 181 Wis. 160, 193 N. W. 976.
¶13“The statute [sec. 62.09 (13)] clearly contemplates that evidence justifying arrest without warrant is evidence that comes to the officer through his sense of sight or other natural senses of a breach of the peace, before the arrest and search. He may not arrest for a misdemeanor on hearing or suspicion.” Allen v. State, supra, (p.335). See also Mantei v. State, supra.
¶14*176We have held that a search warrant cannot be issued upon a statement under oath based upon information and belief unless there is competent evidence of the facts underlying the belief and those facts are sufficient to support a finding of probable cause. Glodowski v. State, 196 Wis. 265, 220 N. W. 227. I have already pointed out that in my opinion there are not facts here sufficient to support a finding of probable cause. It does not seem to me to be logical to contend that an arrest can be justified if it is based only upon what an officer may have heard from others. Is the contention that an arrest may be made solely upon hearsay information that an offense had been committed fourteen months earlier less fallacious?
¶15Since the arrest was unlawful and the first search was unwarranted, the second search — that made after the arrest and as an incident to it — cannot be justified. 4 Am. Jur., Arrest, p. 48, sec. 68; Allen v. State, supra, (p. 333) :
“Policemen are not to try the accused. If they see him in the act of committing an offense they may arrest him without a warrant. But if the accused is searched without warrant as a basis of arrest, or if arrested without warrant as a basis of search, in order to ascertain that the accused is committing an offense, the proceedings are void from the beginning.”
¶16It is said that to clothe an offender with such protection would permit the escape or relief from punishment of many violators. I do not understand that the detection of crime and the punishment of an offender is of greater moment than the preservation of constitutional rights. In considering the importance of the rights guaranteed by the constitution, particularly that which is involved here, we may not overlook what was said by Mr. Justice Eschweiler in Hoyer v. State, supra, (p. 417) :
“We see no reason in logic, justice, or in that innate sense of fair play which lies at the foundation of such guaranties, why a court of justice, rejecting as abhorrent the idea of the *177use of evidence extorted by violation of a defendant’s right to be secure in person and exempt from self-incrimination though it may result in murder going unwhipt of justice, should yet approve of the use, in the same court of justice, by state officers, of that which has been obtained by other state officers through, and by, a plain violation of constitutional guaranties of equal standing and value, though thereby possibly a violation of . . . law may go unpunished.”
¶17It is obvious that without the evidence acquired by means of the illegal search there could have been no conviction of the defendant. The judgment should be reversed.
¶18I am authorized to state that Mr. Justice Hughes concurs in this dissent.