dissenting:
I respectfully dissent. The majority opinion breaks with precedent and upholds a search on the basis of suspicion, supported only by speculation, that every person that enters an area which has been made the subject of a search warrant has committed a crime and is subject to search. See People v. Feltch, 174 Colo. 383, 483 P.2d 1335 (1971).
The majority opinion omits a critical part of the officer’s testimony. The officer testified that the defendant tried to leave. This áction provided part of the basis for the officer’s suspicion. The officer, however, did not allow the defendant to leave, but, instead, told him he would be searched. Then the officer told the defendant to turn around and take his hand out of his pocket. The officer did not suspect or have reason to believe the the defendant possessed a weapon. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), permits a limited search for weapons when the frisk is based upon a justified belief that the individual is armed and presently dangerous. See Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). See also, Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). People v. Nefzger, 173 Colo. 199, 476 P.2d 995 (1970), has been expanded far beyond the facts which supported the decision. In Nefzger, the detective testified that he searched the defendant for a gun which the detective suspected the defendant might be reaching for at the time. The facts in this case do not fit the pattern of Nefzger. Even a weapon search is more than a petty indignity. In Terry v. Ohio, supra, the Court said:
“Even a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience.”
I see no sound distinction between this case and Sibron v. *333Ñew York, supra, which held a search and a subsequent seizure constitutionally impermissible. In Sibron, the officer had seen the defendant talking with narcotics addicts. The officer approached Sibron and said: “You know what I am after.” When Sibron then put his hand in his pocket, the officer reached in the pocket also and seized heroin. The Supreme Court held the search unlawful, both because its object was narcotics, rather than a weapon, and because the search was not limited in its scope to a frisk or pat down.
The facts in this case are strikingly similar to those of United States v. Meulener, 351 F.Supp. 1284 (D.C.D. Calif. 1972). In Meulener, the defendant was stopped by a marshal as the defendant was about to board a plane. The marshal ordered him to open his suitcase, and the defendant complied. Narcotics were discovered in the suitcase. The district court held the seizure invalid because the defendant opened his suitcase only after being ordered to do so in a coercive atmosphere and because the defendant was not allowed to leave rather than submit to search. In the instant case, the defendant was trying to leave, but the officer prevented him, told him he would be searched, and ordered him to remove his hand from his pocket. The grave danger of hijacking did not justify the search in Meulener, supra. In our case, the search is equally abhorrent to constitutional principles.
The second part of the majority opinion is also unacceptable. The trial court found that the syringe and drugs were discovered as the result of a search which the trial court believed to be proper as incident to an arrest. The officer testified that he did not conduct a pat-down frisk. He told the defendant to turn around and take his hands out of his pockets, and then the officer reached, in the defendant’s pocket and removed a small package of drugs. The officer testified that he did not think the defendant had a weapon, but that he thought there might be narcotics in the defendant’s pocket. The officer testified that the search was conducted before he placed the defendant under arrest. The opinion’s recipe for justifying the seizure, coupled with the *334remand they direct, grants the prosecution two bites at the apple. The remand is an invitation to perjury and prosecution-tailored factfinding. After the straight-forward testimony of the searching officer, which established that a search, rather than a frisk, took place, and after the trial court’s finding that the contraband was discovered as the result of a search, no remand should be ordered.
The majority opinion concedes that a full-blown search was not justified. Therefore, the judgment of the lower court should be reversed and the search and seizure declared invalid.