¶1(dissenting).
¶2This decision was filed on September 27, 1972, without being submitted to me for consideration prior to its being filed. Insofar as the original decision, filed June 30, 1971, was written by me and reversed the conviction, I am compelled to file this dissent separately.
¶3What the majority opinion leaves out of the factual statement of this case was the basis for the earlier reversal. In that decision Judge Nix concurred and Presiding Judge Bussey did not participate.
¶4On cross-examination, Officer Maxwell was asked by defense counsel, “What was your reason for getting out and going about the automobile?” The officer answered, “I was curious as to what they were doing at that particular time of the night.” [11:55 P.M] (Emphasis added.) The officer was subsequently asked, “In your presence then, before you got out and made your investigation, there hadn’t been any law violated up until that time is that right?” The officer answered “No, sir.”
¶5This Court stated in Ellsworth v. State, Okl.Cr., 295 P.2d 296, 298 (1956), the following :
“The search must be justified by the steps that preceded it. Edwards v. State, 83 Okl.Cr. 340, 177 P.2d 143, 147. The partially filled bottle of gin played no part in the arrest, it was discovered after the unlawful arrest based on suspicion. Hence, the search and seizure was not incident to a lawful arrest, or upon probable cause of the commission of a felony, but upon mere suspicion and is a violation of the Bill of Rights, Art. 2, § 30, Oklahoma Constitution. Hoppes v. State, 70 Okl.Cr., 179, 105 P.2d 433; Johnson v. State, 92 Okl.Cr. 63, 220 P.2d 469.”
¶6This Court also provided in the fifth paragraph to the Syllabus to Jones v. State, 82 Okl.Cr. 91, 166 P.2d 443 (1946):
“Where an officer, after lawfully stopping or restraining a person, becomes aware that an offense is being committed or is about to be committed in the officer’s presence, he may lawfully arrest the offender without a warrant, but where the officer becomes aware of the facts constituting the offense after making an unlawful arrest, the arrest cannot be justified as being for an offense committed in the officer's ‘presence’.” (Emphasis added.) See also: Holland v. State, 93 Okl.Cr. 180, 226 P.2d 448 (1951)
¶7The facts in Trujillo v. United States, supra, referred to by the majority, are distinguishable to the instant case. “Two Albuquerque, New Mexico, police officers, had received information from sources which they knew to be reliable that he [Trujillo] was selling heroin in the Barelas area of Albuquerque.” However, in the instant case, the officer “was curious as to what they were doing at that particular time of the night.”
¶8In Ellison v. State, supra, from that record one is left to conclude that the offi*887cers drove their police car into the driveway in order to turn the vehicle around, when Ellison was observed to drop the packet of contraband. There was nothing in the record to indicate that THEY WERE SUSPICIOUS, with reference to the defendant’s being where he was. In the instant case the record is specifically clear that the officers stopped because they were suspicious.
¶9As I view the record, the conviction was premised on suspicion; and the officers lacked sufficient probable cause to arrest defendant; and therefore, lacking probable cause there was no justification for the police to invade defendant’s right of privacy, which prompted the alleged “dropping incident.” Therefore, I respectfully dissent to this decision.