dissenting. This case presents a single issue: whether the police officer had “probable cause” to arrest the defendant, and,' in turn, to search her handbag.
In State v. Woodards (1966), 6 Ohio St. 2d 14, 20, 215 N. E. 2d 568, this court stated the familiar law under the federal and state Constitutions that “ [a]n arrest • • * must be based upon reasonable cause or probable cause” (citations omitted). Ordinarily, a valid arrest of a person must be pursuant to a warrant. An authorized law enforcement officer is permitted to make an arrest without warrant, but only where probable cause justifying the arrest exists, on the basis of factual and practical considerations upon which reasonable and prudent persons act. The evidentiary foundations for an arrest without warrant *78eannot.be any less strict than the basis for an arrest with a warrant. Wong Sun v. United States (1963), 371 U. S. 471, 479. If an arrest is not based upon probable canse, it is-.unlawful, and-any evidence seized incident to the arrest will.be inadmissible at trial. The litmus test is whether the questioned evidence .has .been. seized. as a result of .a constitutionally forbidden, arrest, or whether .the actions of the arrested person are deemed to furnish probable cause .sufficient to .purge the. taint upon .warrantless arrests. ■ ■ - .. :
.<■ ,It -is .-undisputed law that . in. order to establish probable, cause to justify an arrest; tho officer must have a genuine and bona fide belief that the subject was violating the law, and-.there must be reasonable .grounds for that belief. Good faith on the part of the officer, standing alone,- falls short of the constitutional requirement. See Henry v. United States (1959), 361 U.S. 98.
In this case, the officers were present at the premises because-a report had been made to the police department that shots were heard which emanated from this location, though-nothing in.the record made on the motion to suppress indicates that the defendant herself was engaged in usings the guns, found in her handbag:in any manner. Upon entering the premises, the police officer found an elderly female coming out of a window from the apartment. The officer discovered - that - this -lady -.had in -her possession numbers- or policy slips. Once inside the ^apartment, the officers.-observed certain paraphernalia .used-dn-writing and computing policy • slips.The.-officers heard the-‘commode in the bathroom being flushed,- and.one officer entered the bathroom;-He saw the defendant sifting-on The toilet, and her purse-on the floor beside her, The- officer directed her to leave the bathroom and give him her purse. She left the bathroom and, after continued insistence, relinquished her purse. The officer claims . that he placed the defendant under arrest for being in- a policy house before he opened her purse. However, the defendant claims she was not arrested until after her purse was searched. Under these eir*79cumstances, the issue of when the defendant was arrested is not a crucial one. Accepting the officer’s statement of the time of arrest, there was at that time only suspicion, and not a scintilla of evidence, that the defendant was engaged in activity in violation of the law. Incessant flushing of a toilet cannot be inferred as somehow incriminatory of possessing policy slips, or of some other offense, though it might be sufficiently suspicious to warrant police investigation, especially where possession of drugs is suspected.
Tn this case, these circumstances only raised suspicion, but did not provide evidence of probable cause. Indeed,' there is some question of what law the defendant “probably” violated. The state cites no applicable municipal gambling ordinance, and in fact in neither the Court of Appeals nor in this court has the prosecution indicated the particular violations for which probable cause is to be found. R. C. 2915.02 forbids engaging in bookmaking, or gambling, or knowingly facilitating gambling.1 But the mere *80fact that the defendant was in the apartment is not -of itself evidence that she was gambling, operating the gambling house, or otherwise facilitating gambling operation. Her presence was suspicious, but again, suspicion alone does not furnish probable cause.
Similarly, R. C. 2915.032 forbids the operation of a gambling house, but at the time the officer arrested the defendant, he had no reason to believe that the defendant owned or leased the apartment.
The testimony of the arresting officer is to the effect that he believed that mere presence in a policy house was an offense. We need not question the officer’s good faith, but there is no state law to that effect, and no municipal ordinance is cited to us. The defendant’s presence in an apartment where gambling paraphernalia were observed was the only basis for the arrest. That circumstance was suspicious to be sure, but it did not provide probable cause that the defendant had violated any law. Compare, for example, Sibron v. New York (1968), 392 U. S. 40, and Henry v. United States, supra (361 U. S. 98).
From the facts of this case and the applicable federal and state law, I can find no justification.for the arrest of this defendant without a warrant. It is my view that the judgment of the Court of Appeals should be affirmed.
R. C. 2915.02 provides:
“(A) No person shall:
“(1) Engage, in bookmaking, or knowingly engage in conduct which facilitates bookmaking;
“(2) Establish, promote, or operate, or knowingly engage in conduct which facilitates any scheme or game of chance conducted for profit;
“(3) Knowingly procure, transmit, exchange, or engage in conduct which facilitates the procurement, transmission, or exchange of, information for use in establishing odds or determining winners in connection with bookmaking or with any scheme or game of chance conducted for profit;
“(4) Engage in betting or in playing any scheme or game of chance as a substantial source of income or livelihood;
“(5) With purpose to violate division (A)(1), (2), (3), or (4) of this section, acquire, possess, control, or operate any gambling device.
“(B) For purposes of division . (A) (1) of this section, a person facilitates bookmaking if he in any way knowingly aids an illegal bookmaking operation, including without limitation placing a bet with a person engaged in or facilitating ..illegal bookmaking. For purposes of division (A) (2) of this section, a person facilitates a scheme or game of chance conducted for profit if he in. any way knowingly aids the conduct or operation of any such scheme or- game, including without limitation playing any such scheme or game.
*80“(C) This section does not prohibit conduct in connection' with gambling expressly permitted by law,
“(D) Whoever ■ violates this section is guilty of gambling, a misdemeanor of the first degree. If the offender has previously been convicted of any gambling offense, gambling is a felony of the fourth degree.”
R. C.‘2915.02 provides, in p'ertinent part:
“(A) No person, being the owner or lessee, or having custody, control, or supervision of premises, shall:
“(1) Use or occupy such premises for gambling in violation of Section 2915.02 of the Revised Code;
“(2) Recklessly permit such premises to be used or occupied for gambling in violation of Section 2915.02 of the Revised Code.
“(B) Whoever violates this section is guilty of operating a gambling house, a misdemeanor of the first degree. If the offender has previously been convicted of a gambling offense, operating a gambling house is a felony of the fourth degree.”