¶1(concurring).
¶2I agree with my brethren in the results they reach in affirming this conviction. I agree in all respects with their rejection of the contention that the search was unreasonable. However, I must respectfully differ with the reasoning which leads to this conclusion. I feel that when the officer received information from the dispatcher about the faulty registration he then had the right to have the car stopped and make inquiry. See Adams, Warden v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, decided June 12, 1972; State v. Manning, Tenn., 490 S.W.2d 512, 514; High v. State, 188 Tenn. 166, 168, 217 S.W.2d 774, 775. While the first two cited authorities involve cases in which inquiry was made into the suspected commission of felonies, the Tennessee Supreme Court in the Highcase, supra, decided that police officers could and should, in some cases, make inquiry into the suspected commission of misdemeanors.
¶3I am further not satisfied that this arrest was contrary to T.C.A. § 40-803(1). In the light of modern day law enforcement, reliance, as here by the officer, on the dispatcher information that the registration was faulty, may have been of such sufficiency so as to apprise the officer that a misdemeanor was being committed in his presence. In fact, if the registration was unlawful then it was a misdemeanor being committed in his presence. See T.C.A. § 59-516. I think that the officer’s action in stopping the automobile was with authority, or with at least color of authority as cited, to render his action a reasonable one as opposed to an arbitrary harassment.
¶4It is for this reason alone that I concur in the result reached by the majority. Since I find that the arrest or stopping was valid, I have, no inhibitions in determining that the evidence in question was admissible. However, I must differ in the reasoning employed by the majority in reaching its conclusion. As I understand it, the majority holds that even though the arrest was invalid, the heroin which would not have been seized but for the bad arrest, is in no way tainted thereby. I find it contrary to law to allow evidence to go before a jury which was obtained as a direct result of an unlawful arrest. See Hughes v. State, 145 Tenn. 544, 238 S.W. 588.
¶5To further illustrate my point let me say that I am firmly of the opinion that our citizenry has the unalienable right to traverse our streets and highways free from arbitrary intrusions by government agents. It is completely contrary to my beliefs to say that we have a constitutional right from unreasonable searches and seizures and then to say that this only applies to the home, car, etc. The plain wording of the Fourth Amendment belies this construction: “. . . to be secure in their *199persons, houses, etc. . . . ” It therefore is contrary to my logic to state that as a free citizen I cannot be secure in my person from arrest in view of the plain language contained in Article I, Section 7 of the Constitution of Tennessee and the Fourth Amendment to the Constitution of the United States. In Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746, the following language may be found, construing the Fourth and Fifth Amendments of the United States Constitution :
“. . . they apply to all invasions on the part of the government and its employes of the sanctity of a man’s home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment.” (Emphasis added.)
… *
“. . . but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their'efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” (Emphasis added.)
¶6In reiteration, it is clear then that as a citizen, and in the absence of forfeiture of my guarantees by me through the commission of an unlawful act, I should enjoy the freedom to be able to traverse by foot or otherwise the countryside free from intrusions without cause by government agents. I have, as I construe the constitutions of the United States and of Tennessee, as much right to be free from undue governmental interference on the open road as I do to sit, unmolested, by the fireplace in my home, reading the evening newspaper. I am therefore compelled to the conclusion that I do have a constitutional right to be free from an unlawful arrest under the amendments. See Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676. It is completely against logic, that, in a country born out of oppression, it can be said that these constitutional guarantees apply only to a search and things seized as a result of that search and yet, in the same breath, have it said that the government is not to be hobbled in its efforts to tread upon the personal security of the people. We must always keep a proper balance between the two, society and its rights as opposed to the individual and his rights. As stated in Hughes v. State, supra, at p. 573 of 145 Tenn., at p. 596 of 238 S.W.:
“ ‘Two great and vital principles of government are to be kept steadily in view, in pronouncing on conduct, such as is brought to view in this record — the liberty of a citizen, and the peace and repose of society. Civil liberty is natural liberty, shorn of the excesses which invade and trench on the equal liberty of others. No one can claim the right to violate the law, and precautionary force is justified, to prevent a greater impending evil. Such force, however, is in its nature remedial, and can be carried no further than is reasonably necessary to prevent the threatened wrong. Prevention is less hurtful than redress, and, when prudently exercised, is not only justified, but is commended of the law. No man can rightfully complain of any encroachment upon personal liberty, which he himself by his lawlessness or violence has rendered necessary for the safety and protection of others. It is liberty as defined *200by law, not unbridled license, our free Constitution guarantees to every man— the humblest, equally with the most exalted.’ Hayes v. Mitchell, 69 Ala. [452], 454.” (Emphasis added.)
¶7If, as the majority holds, the arrest was bad, even though there was no search as such, then it tainted the recovery of the heroin, rendering it inadmissible as evidence. However, as related I am satisfied that the officers’ stopping of the car was not conducted in an arbitrary manner or for harassment purposes. It was the legality of the arrest or reasonable stopping for inquiry, see High v. State, supra, which accounts for the untainted character of the evidence in question. In my opinion, as stated in Hughes v. State, supra, arrest good, search good.
¶8Finally, many times I have concurred or quoted the broad principle enunciated in State v. Manning, Tenn., 490 S.W.2d 512, concerning defendant’s ability to testify during trial as to evidence which he sought to exclude from the jury in a motion to suppress. Our law stands for the proposition that should the defendant make any statements on the stand concerning such evidence, he thereby cures the search question, raised in the motion to suppress, and waives his right to appeal on the question. In the instant case, the trial judge overruled the defendant’s motion that the heroin should be held inadmissible as the fruit of an invalid arrest. Since he later took the stand and testified that he had no knowledge of the presence of heroin in the car, it is said that he has waived his right to question the search. As a member of an intermediate court I am bound by the decision of our Supreme Court. However, with the utmost respect for their wisdom I respectfully disagree with the search principle expounded in State v. Manning, supra. I think that a person has the right to assert the issue of the constitutionality of a search under the Fourth Amendment and, that if the ruling is against his claim, to except to that ruling. One should not then be placed on the horns of a dilemma by a principle which stands for the proposition that if one does testify he will lose his right to question the search on appeal. In other words, to support this principle to me clearly puts a chilling effect on one’s constitutional guarantees. In closing, if a search question is raised, and it is determined against the party so raising it, he should not lose the right to challenge that question in the appellate court merely because he chose to testify on the trial level.
¶9With these expressions, as related at the outset, I concur in affirming this judgment because, as stated, I feel: (1) that the car was not arbitrarily stopped; and (2) that the throwing of the heroin therefrom was not a search, as such.