dissenting:
I respectfully dissent.
In my view, the majority opinion ignores the well-established law of arrest and the procedures which have been designed to guarantee that a confession is genuinely voluntary and not the product of a will overborne.
A vast body of precedent exists which defines the rights of a citizen, as well as the duties of police officers, in enforcing the law. Lasson, The History and Development of the Fourth Amendment (1957); Landynski, Search and Seizure and the Supreme Court (1966); Ringel, Searches and Seizures, Arrests and Confessions (1972).
Relying primarily upon Terry v. Ohio, 392 U.S. 1,88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), as implemented in Colorado under Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), the majority holds that an individual may be physically detained in police custody in those instances where the police harbor a reasonable suspicion that criminal activity may be *411involved, even in the absence of probable cause. Such a conclusion is contrary to every decision of the United States Supreme Court which has examined the scope of Fourth Amendment protection, including Terry v. Ohio, supra. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921,32 L.Ed.2d 612 (1972); Morales v. New York, 396 U.S. 102, 90 S.Ct. 291, 24 L.Ed.2d 299 (1969); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Sibron v. New York and Peters v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964);Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168,4 L.Ed.2d 134 (1959);Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966);Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 881 (1964); Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Chapman v. United States, 365 U.S.
*412610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3
L.Ed.2d 327 (1959); Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958);Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); United
States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); McDonald v. United States, 335 U.S.
451, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Go-Bart Importing Co. v. United States, 282 U.S. 344, 51
S.Ct. 153, 75 L.Ed. 374 (1931); Carroll v. United States, 267 U.S. 132,45 S.Ct. 280, 69 L.Ed. 543 (1925); Amos v. United
States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920).
Under the reasoning of the majority opinion, constitutional rights may be ignored under the guise of what is loosely referred to as a “field investigation.” Although I concurred in Stone v. People, 174 Colo. 504, 485 P.2d 495 (1971), with the hope that the right to interrogate for a limited purpose, which we created in that decision, would not be abused, but later I was forced to suggest that we went too far when we established the Stone area. People v. Gurule, 175 Colo. 512, 488 P.2d 889 (1971).1
*413The disposition of this case hinges not only on Federal, but also on Colorado constitutional provisions relating to arrest. U.S. Const, amend. IV; Colo. Const., art. II, § 25. Serious questions involving the constitutional right of the assistance of counsel and to protection against compelled self-incrimination are also involved, but have not been addressed because of the state of the record which is before us. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Lynumn v. Illinois, supra.
When the facts revealed by the record are closely examined, the applicability of binding precedent of the Supreme Court of the United States becomes obvious. The facts, in my mind, establish that the defendant was unlawfully arrested, and that the product of that arrest was an involuntary confession.2
I.
Facts
A mother and her infant child went to visit the child’s father at the Colorado State Penitentiary and were accompanied by a neighbor. Before entering the penitentiary, they used the women’s public restroom in the park adjacent to the *414prison. The neighbor went in first and after she came out, the mother and child went in. The neighbor made a backward glance toward the restroom and that single act aroused the suspicion of a penitentiary guard. The guard ordered that a search be made of the restroom and marijuana was found in a waste basket. There is nothing in the record that establishes how many other people used the restroom before the trio entered and the search was conducted. At the time of the shakedown search, the defendant, her infant son, and the neighbor were inside of the penitentiary waiting to see the child’s father.
After the marijuana was found, a sheriff’s officer assigned to the penitentiary placed both women under arrest. Thereafter, they were taken upstairs to an interrogation room and locked inside. They were read an advisement of rights form and interrogation commenced. The marijuana which was found in the restroom was brought in, and both the defendant and her neighbor were asked what they knew about it. Both women denied any knowledge of the marijuana. After additional interrogation, the defendant said that her neighbor was innocent and knew nothing about the marijuana. The neighbor was then allowed to leave the room. The defendant requested leniency and ultimately confessed to the crimes charged.
It is not disputed that the confession which the defendant sought to suppress at the trial is the key to the prosecution’s case. No evidence is contained in the record which would establish probable cause to arrest not to mention proof beyond a reasonable doubt which is required to convict, apart from the confession.
II.
Probable Cause for the Arrest
The statutory authority which allows Colorado law enforcement officers to make felony arrests without a warrant is restricted to offenses which are committed “in their presence,” or “where a criminal offense has in fact been committed, and he [the police officer] has reasonable ground to believe that the person to be arrested has committed it.” *415C.R.S. 1963, 39-2-20. On a number of occasions, this court has equated “reasonable grounds to believe” with probable cause. Marquez v. People, 168 Colo. 219, 450 P.2d 349 (1969); Johnson v. Enlow, 132 Colo. 101, 286 P.2d 630 (1955). The Colorado statute reflects the standard imposed upon all states by the Fourth Amendment to the United States Constitution which commands that no warrants for an arrest or a search shall issue except “upon probable cause supported by oath or affirmation . . . particularly describing the place to be searched, and the persons or things to be seized.” Accord, Colo. Const., art. II, § 25. It is axiomatic that when an impartial judge cannot issue an arrest warrant without the requisite probable cause, a policeman in the course of a “field investigation” may not exercise greater power and arrest without first having reasonable grounds to believe that the suspect has committed a specific crime. Wong Sun v. United States, supra; People v. Moreno, 176 Colo. 488,491 P.2d 575 (1971).
History discloses that at the time the Fourth Amendment became a part of the Constitution, American courts were already striving to define probable cause. Early decisions held that common rumor or report, suspicion, or even “strong reason to suspect” would not suffice to satisfy the burden of establishing probable cause. Conner v. Commonwealth, 3 Binn. (Pa.) 38 (1810). Probable cause, as a limitation on the right to make an arrest is now firmly entrenched in American criminal justice and is a pillar of our right to privacy and freedom from unlawful restraints. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1972); Lankford v. Geltson, 364 F.2d 197 (4th Cir. 1966); Dellinger, Of Rights and Remedies: The Constitution As a Sword, 85 Harv. L. Rev. 1532 (1972). If I am to give any meaning to the history behind our constitutional safeguards, I cannot condone an arrest on mere suspicion and still recognize the existence of the Fourth Amendment. The amount of evidence required to establish probable cause does not rise to the level of evidence required to establish guilt. Brinegar v. United States, supra; *416Draper v. United States, supra. However, good faith on the part of the arresting officer will not suffice or serve as a substitute for probable cause. Henry v. United States, supra. Probable cause exists if the facts and circumstances known to the officer warrant a reasonable, prudent man in believing that the offense has been committed and that the suspect is responsible. Stacey v. Emery, 97 U.S. 642, 24 L.Ed. 1035 (1878).
Under the facts presented in this case, the only knowledge which the prison official possessed at the time the defendant was detained was that (1) the defendant entered, and a short time later left, a ladies’ restroom in a public park near the penitentiary, and (2) marijuana was later found in the restroom. The majority opinion concedes that the police did not have probable cause when the defendant was arrested or detained and taken into the interrogation room. Not only do the facts fail to establish probable cause, but I doubt that a reasonable, prudent man (or a police officer) would consider that the defendant’s acts were even suspicious.
As I view the Fourth Amendment, the defendant was arrested at the very moment that she was deprived of her liberty and movement and taken into another room by the prison official. Henry v. United States, supra. Evidence which is subsequently discovered or incriminating statements which are subsequently made cannot relate back and justify an arrest which is unlawful when made. Johnson v. United States, supra; Henry v. United States, supra; Wong Sun v. United States, supra; People v. Moreno, supra.
For the reasons I have stated, the defendant’s arrest was not, in my opinion, supported by probable cause and requires that the defendant’s confession be suppressed. People v. Moreno, supra; Collins v. Beto, 348 F.2d 823 (5th Cir. 1965); Wong Sun v. United States, supra; Henry v. United States, supra.
III.
The Stop and Frisk Exception
One of the most basic constitutional rules is that “searches conducted outside the judicial process, without prior *417approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment.” Coolidge v. New Hampshire, supra. This fundamental rule is subject to only a few specifically-established and well-delineated exceptions. These exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption” that the exigent circumstances forced the police to act without a warrant. The burden rests upon those seeking the exemption to show the need for it.
Coolidge v. New Hampshire, supra, Terry v. Ohio, supra, and its companion cases, Sibron v. New York, supra, and Peters v. New York, supra, were the first decisions in which the constitutional difficulties of police “stop and frisk” investigatory practices, conducted without the existence of probable cause, were examined. See Morales v. New York, supra. The trilogy of cases held that under certain stringently and specifically limited circumstances, persons suspected of criminal activity may be stopped, frisked for weapons and momentarily interrogated by police officers, even though there is less than probable cause to arrest. See Stone v. People, supra.
“Terry . . . was intended to free a police officer from the rigidity of a rule that would prevent his doing anything to a [person] reasonably suspected of being about to commit or just having committed a crime of violence, no matter how grave the problem or impelling the need for swift action, unless the officer had what a court would later determine to be probable cause for arrest. It was meant for the serious cases of imminent danger or of harm recently perpetrated to persons, not the conventional ones of possessory offenses.” Terry v. Ohio, supra. [Emphasis added.]
The Terry decision did not hold that whenever a police officer has a hunch or suspicion that a person is engaging in any type of criminal activity, he may stop, detain, and interrogate the suspect. Rather, it held that if police officers chose to stop and frisk or interrogate a citizen, they must have specific facts from which it can reasonably be inferred that the suspect is, has been, or is very soon to be engaged in *418the commission of a crime and is armed and dangerous. See Adams v. Williams, supra. The opinion in Terry recognized that on-the-street law enforcement encounters may require an officer to act at times on the basis of strong evidence, short of probable cause, which indicates that criminal activity has taken place and that the criminal suspect is armed and dangerous. The court’s opinion was unequivocally clear, however, that the outcome of the decision was not intended to be a retreat from the prior pronouncements of the court that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure. In recognizing the realities of difficult situations which policemen on occasion face, the Supreme Court fashioned a rule which struck an equitable balance between the rights of the individual and the physical safety of our law enforcement personnel.
The majority’s reasoning in this case ignores the indisputable fact that the Supreme Court of the United States, in Terry v. Ohio, supra, begrudgingly accepted the necessity for creating an exception to the warrant requirements of the Fourth Amendment to the United States Constitution, and treats this case as if warrantless intrusions into an individual’s constitutionally protected security were the rule, rather than the “narrowly drawn” exception. The majority decision abandons the carefully struck balance embodied in Terry between a citizen’s right to be secure from police intrusions and the government’s responsibility for effective law enforcement.
Accordingly, I would order that the defendant’s confession be suppressed and her conviction reversed.
The standard for arrest and detention laid down in the majority opinion grants to the police much greater discretionary power than has yet been recommended by any major research group which has examined the subject. See ALI Model Code of Pre-Arraignment Procedure, § 110.2(l)(a) (Official Draft No. 1, 1972) and Uniform Arrest Act, § 2(1); and See generally, Warner, The Uniform Arrest Act, 28 Va. L. Rev. 315 (1942); Arizona Appellate Decisions; Proper Grounds for Investigatory Stops: A Test, 15 Ariz. L. Rev. 708 (1973). Moreover, the standard enunciated in this decision goes beyond what the Colorado legislature has stated to be the minimum standard for arrest and detention. See C.R.S. 1963, 39-2-20. The legislature has not overlooked the difficult situations which police confront on occasion. *413In fact, they have provided specific statutorily sanctioned procedures for detention and interrogation in the absence of probable cause. C.R.S. 1963, 39-2-3. See also, C.R.S. 1963, 39-3-103, Laws 1972, p. 198.
The majority, by validating the police officers’ conduct in this case and their failure to comply with C.R.S. 1963, 39-2-3, have ignored the clear intent of the legislature and, in effect, have judicially amended C.R.S. 1963, 39-2-20 in such a way as to drastically lower the minimum standard for arrest and detention.
See LaFave and Remington, Controlling the Police: The Judge’s Role in Making and Reviewing Law Enforcement Decisions, 63 Mich. L. Rev. 987 (1963); Note, Police Practices and the Threatened Destruction of Evidence, 84 Harv. L. Rev. 1465 (1971); Cook, Probable Cause to Arrest, 24 Vand. L. Rev. 317 (1971); Evolution of the Police Officer’s Right to Arrest Without a Warrant in Colorado, 43 Den. L. J. 366 (1966).