(dissenting).
The testimony in the instant case so reads with subterfuge that I could not in good conscience support the majority opinion. That the testimony is contradictory I thoroughly agree and the previous decision of this court would in my opinion substantiate a decision either way. However, I firmly believe that Judge Powell’s remarks in Brinegar v. State, 97 Okl.Cr. 299, 262 P.2d 464, 473, should prevail in all instances. In that case he said:
“This court has never sustained a search where the evidence as reflected by the record convinced it that the arrest was a subterfuge for a search.”
I am of the opinion that a thorough review of the record supports the testimony of the defendant. His testimony reflects that at approximately 4:30 or 5 o’clock in the morning, he stopped in the town of Afton, and aired up his tires, and at that time he noticed a two-toned green Studebaker automobile, with a big, long aerial in the back seat, parked in the back of the building, and that thereafter, he proceeded East, on Highway 66, at which time he noted the above described automobile following with its lights turned off.
The testimony of Officer Lawson revealed that this description fits that of the car driven by Deputy Sheriff Myers who lived in Afton. Defendant and the companion car proceeded on their trip and were returning about 8:00 that morning, when, at the intersection of Highways 66 and 60, Officers Lawson and Peck began pursuit. Officer Lawson testified he observed the two cars, one preceding the other, as follows:
“A. There was a light looking car in front of him and it came to a stop.
“Q. You say there was another car preceding him, a light looking car, did it pass you? A. Yes.
“Q. Your car was headed east and the cars coming from 60 were headed west? A. Yes.
*487“Q. Now the car that preceded the car the defendant was driving you say went across and passed you? A. Yes.
“Q. It’s a narrow road? A. Yes, sir.
“Q. Did you try to stop the first car? A. No, sir.
“Q. You didn’t? A. No.
“Q. You didn’t pay any attention to it? A. Not so much, no.
“Q. When the next vehicle came across you say it slowed but didn’t stop at the stop sign and that the car passed you going west? A. Yes, sir, that’s right.
“Q. You were driving your vehicle ? A. Right.
“Q. Mr. Peck was a passenger with you? A. Right.
“Q. When the car that the defendant was driving passed you what did you do? A. Well, we glanced over at him, didn’t like his looks and we decided to take a look at him and he took off.
“Q. You didn’t like his looks and you turned around? A. To see what was the matter that he took off so fast.
“Q. Alright. That was the reason you didn’t turn on your siren? A. When? After we turned around?
“Q. Yes. A. I certainly did because he was done breaking the speed limit.
“Q. He zmsn’t breaking the speed limit when you started after him? A. No.”
Officer Lawson testified he called Officer Peck out of bed at 4:00 a. m. and told Peck to meet him at the intersection of 60 and 66 which he did. Upon being asked if he had talked to Officer Myers (the officer from Afton) earlier that morning, he replied, “I think we met him once down at the Eagle.” Then he was asked whether Mr. Myers advised him of the two cars he followed and observed there early in the morning and Officer Lawson replied, “I don’t recall.” However, Officer Lawson admitted being in communication with the officer from Afton on the radio the morning of and prior to intercepting the defendant. Mr. Meyers, the officer, who drove a Studebaker -as described by the defendant as the car observing him in Afton, was listed as a witness but did not appear.
Defendant testified that after the officers began their pursuit he took off at a high rate of speed because he didn’t know whether they were hijackers or officers. He said he stopped after hearing several gun shots. The officers admitted shooting 4 times, but said they were not aiming at the defendant. The defendant also stated that he told the officers he started to come back another way and-the officer said, “It wouldn’t have made any difference which way he came, they would have got him anyway.” Defendant further testified that Officer Peck said he was glad that we finally got there; they had been watching about two hours and he was supposed to have gone off duty' about 8 or 8:30, and mentioned something about missing his breakfast. Defendant stated he had not violated any traffic laws at the time the officers began their pursuit.
The record cannot be carefully reviewed without forming the definite opinion that the defendant’s story relative to being observed by Officer Myers while airing up his tires in Afton was true; .that Myers communicated this information to the other deputies who set up a trap to catch the defendant on his return trip; that they waited for his arrival approximately 4 hours; that they were stationed at the intersection of 60 and 66 for the purpose of catching defendant with a load of whiskey. Though this is denied by the arresting officers, the circumstances could lead to no other conclusion.
The failure of the State to call officers from Afton who -had been endorsed as witnesses lends credit to defendant’s story. Regardless of the conflict in testimony the facts are summed up in Officer Lawson’s testimony that, “Well, we glanced over at him, didn’t like his looks and we decided to take a look at him and he took off.” Your *488writer Has been unable to justify'the above statement as legal grounds for an arrest, a search or seizure. It would be just as sound to say, “We pursued the defendant because his hair was black or his eyes were blue and we didn’t like either.” No criticism is meant to be herein directed at the many previous holdings of this court to the effect that: Whether search and seizure from an automobile is reasonable is in its final analysis, to be determined as judicial question, in view of all the circumstances under which it is made, and such being so, this court will not reverse the trial court’s finding upon a question of fact where there is a conflict of evidence, and there is competent evidence reasonably tending to support the "trial court’s finding. However, it would be meandering far from the fundamentals to make valid a search and seizure where subterfuge is obvious upon the face of the record. The exception to the fundamental prohibition against unreasonable search must never overcome the rule. This court has in numerous cases expressed a desire to carefully guard against subterfuge being the tool by which officers may ignore the necessity of a warrant or to cover up their determination to search defendant’s car without complying with our laws as they pertain to search and seizure. Cases upholding this expression are numerous— see Barnett v. State, 94 Okl.Cr. 293, 235 P.2d 555; Johnson v. State, 92 Okl.Cr. 63, 220 P.2d 469.
The officers make such to-do about the defendant driving at a high rate of speed after they began pursuit. Officer Peck testified defendant reached a speed of 90 miles or better and when he overtook the defendant he informed him he was under arrest for speeding and driving reckless. It is well to bear in mind that Officer Lawson testified that the defendant was not violating the speed limit at the time they turned around and took after the defendant. The testimony reveals that the officer immediately turned on their red light, used their siren, and fired 4 shots. In view of these facts I feel that the search began when the officers performed these overt acts in stopping the defendant and this contention has heretofore been upheld in a very able decision by Judge Powell in the case of Saltsman v. State, 95 Okl.Cr. 228, 243 P.2d 737, where it was said:
“Search of a motor vehicle begins when officers move in to overhaul the driver, not necessarily when they commence to follow the suspected driver, but at the time they perform some overt act in attempting to stop him, such as sounding the siren and turning a spot light on the suspect or forcing him to the curb, or any act having for its purpose the obtaining of authority over the driver.”
Therefore, this court in order to be consistent, would;be compelled to hold that the search had begun when the officer turned around and turned on the red light and siren. It has long been the opinion of this court that where the search was invalid in its inception it cannot be made valid by the discovery of contraband or by what it subsequently brings to light. The search revealed that the defendant was loaded with whiskey, but this court should not let down the barriers against unlawful search and seizure if the law is not complied with in every instance. The protection afforded under the Constitutions of the State and Nation is applicable to the guilty and the innocent alike. If we should let down these barriers to apprehend the guilty, they could no longer serve to protect the innocent. This court clearly established this rule in Asbrook v. State, 92 Okl. 287, 219 P. 347, 439, wherein it is stated:
“The absolute security against unlawful search or seizure exists without reference to guilt or innocence of the person whose property or premises is searched. The mere fact that he is guilty, or that there may be reasonable grounds to believe that he is guilty of the charge preferred against him by the officer of which he is suspected will afford no excuse or justification for an unlawful search or seizure.”
Sec. 30, Art. § 2 of the Constitution of this State forbids unreasonable search and *489seizure, without a warrant. It has been said that the security afforded by this provision against unlawful search and seizure is the right guaranteed to the citizens even for the discovery of the citizens’ sins. This right we must preserve, unless we may with impunity, disregard our oath to support and enforce the Constitution. The laws of this state are indeed clear as set forth in Tit. 22 O.S. 1951 § 196. It is provided:
“A peace officer may, without a warrant, arrest a person:
“1. For a public offense committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in his presence.
“3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.”
The officers in the instant case attempted to justify the search and seizure by testimony of Officer Peck as follows:
“Q. Where did you see the defendant at that time and what was he doing at that time? A. The defendant crossed the highway headed west.
“Q. And passed you? A. Yes, sir.
“Q. Had he stopped at the stop sign on 66 before he crossed? A. He slowed but never come to a complete stop.”
The defendant denied this and stated he stopped at the stop sign and took off at a normal speed. This appears to be uncanny in that the officers would linger in the vicinity of the intersection for approximately 4 hours and when defendant arrives he slows down but does not stop, and thereby justifies the officers in beginning immediate pursuit with red lights shining, sirens blowing and guns blazing. I cannot conceive an officer firing 4 shots in an effort to stop a vehicle that had slowed down but did not completely stop at an intersection unless they had previous knowledge of the cars’ contents or a strong suspicion thereof. It is well to bear in mind that defendant was not charged with running a stop sign but with speeding. Attorneys for defense made strenuous efforts to get at the facts and in several instances were handicapped by the ruling of the trial court. A different light may have shown up on the matter had witness been required to answer the following questions by counsel for the defendant:
“A. I was not looking for any particular car.
“Q. You had no information at all when you were working on that morning with respect to any whiskey that he be hauling through?
“Mr. Gee: Obj ection as leading and suggestive.
“The Court: Sustained.”
“Q. In the course of your employment did you have any conversation with anybody in your office or anyone else connected with the law enforcement in Afton respecting two cars described similar to the one that was leading and the one you saw?
“Mr. Gee: Objection as incompetent, irrelevant and immaterial.
“The Court: Sustained.
“Mr. Page: Exception.
“Q. Mr. Peck, are you telling this Court under oath that you were not looking for whiskey in that car when you started in pursuit?
“Mr. Gee: Objection. It has already been answered and for the further reason it is incompetent, irrelevant and immaterial.
“The Court: Sustained.
“Mr. Page: Exception.
“Q. I will ask you whether or not you suspected there was whiskey in that car at the time you started in pursuit?
“Mr. Gee: Object as being incompetent, irrelevant and immaterial and repetition.
“The Court: Sustained.
*490“Mr. Page: Exception. Your Honor, that is the gist of this whole proceeding.
“The Court: I think he testified to that several times.
“Mr. Page: I didn’t think he testified to that.
“The Court: I sustained the objection.
“Mr. Page: Exception.
“Q. I will ask you if on the morning in question, December 14th, 1956, you were not out patrolling the roads and highways with the specific intention of stopping any cars that you might suspect of hauling whiskey?
“Mr. Gee: Objection as being incompetent, irrelevant and immaterial and repetition. It makes no difference what he was doing out there. He testified why.
“The Court: Sustained.
“Mr. Page: Exception.
“Q. I will ask you whether or not you had observed these cars, these specific cars, within 24 hours prior to the time you made this arrest?
“A. No, I hadn’t observed them.
“Q. Or had no information that anybody else had observed them?
“Mr. Gee: Objection. Incompetent, irrelevant and immaterial. It makes no difference and it would be hearsay if he had.
“The Court: Sustained.”
In this connection your writer is thoroughly familiar with the line of cases passed on by this court establishing a general rule that in order to reserve an available objection to the exclusion of evidence, a proper question must be asked and, on objection thereto, an offer must be made at the time, showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility. The application of this rule while interrogating a hostile witness would constitute an absurdity. How would defense counsel anticipate the answer unless it could be determined by inquiry which in the instant case was denied? It is quite evident from the record that defense counsel did not know the answer but was attempting to learn by strenuous examination of the witness. The only way the answer could have been ascertained was for the court to have permitted the witness to answer. When the objection was sustained, defense counsel would have been dwelling upon mere speculation to have dictated an answer into the record. The question herein referred to could have been answered “Yes” or “No.” The questions propounded on in the record, your writer is of the opinion they were competent and should have been answered. The only reason for the rule mentioned heretofore is to record the substance of the expected answer so this court might determine its admissibility. Where the question could be answered with a single “Yes” or “No,” this court needs no record to determine its admissibility. If the questions were competent the answers would likewise he admissible. Defense counsel was gambling with the fate of his client as the answer could have been favorable or unfavorable to the defendant. There are numerous exceptions to the general rule that the forbidden answer must be dictated into the record to preserve a review. It is stated in 3 C.J. 827, § 737:
“The rule requiring an offer of evidence is, however, subject to some exceptions * * * Nor does the general rule apply to a question asked upon the cross-examination of a witness called by his adversary. And where a question is in itself proper and pertinent, the facts expected to be proved by the witness need not be stated in order to make the ruling rejecting the evidence available on appealSee also 4 C.J.S. Appeal & Error § 291.
Obviously the deciding factor was whether the officers were acting in good faith relative to minor traffic violations or whether they were using that testimony as a subterfuge to justify an otherwise illegal *491search. Therefore, the questions were proper and of tremendous importance and their answers should have been welcomed by the trial judge as being most helpful in deciding the paramount issue of subterfuge. If they had previous information of defendant’s vehicle and were waiting for him to appear, expecting him to be loaded with whiskey and had not obtained a warrant, the trial judge could clearly assume a clear case of subterfuge, if not the defendant’s contention would have been tremendously weakened. This court has heretofore held as recited in the majority opinion that where defendant files a motion to suppress, the burden rests on him to offer evidence in proof of the allegations contained therein. However, your writer is of the opinion that since the defendant is in most instances compelled to rely upon hostile witness, usually developing into a swearing match between the defendant and arresting officers, he should be given broad latitude within the rules of evidence to establish his theory.
By sustaining objection to these material questions, the defendant was handcuffed in his effort to prove his contention of subterfuge.
In view of the previous holdings of this court, to the effect that the trial court’s findings on a motion to suppress, will not be disturbed where there is any competent testimony to support it, the trial judges should be most cautious and approach the solution with thoroughness and finality. In the Brinegar case, supra [97 Okl.Cr. 299, 262 P.2d 477], Judge POWELL quotes with approval from Wallace v. State, 49 Okl.Cr. 281, 294 P. 198, where it was said:
“This court will not uphold an un- • reasonable search where it appears • that one illegally arrested on some subterfuge for the purpose of justifying or attempting to justify a search otherwise unlawful. If the arrest is unlawful, the search is unlawful.”
This, in the opinion of your writer is good law and should have been followed in the case at bar and the motion to suppress consequently sustain Your author is of the opinion the court handicapped the defense in sustaining objections to the questions heretofore prepounded and committed reversible error in so doing. I am of the firm opinion that a rehearing should be granted in said cause, and the majority opinion withdrawn for further consideration.