(dissenting)—In my view, the officers exceeded the scope of the questioning permitted on an investigatory stop. For that reason, I am constrained to dissent.
It is well established that in appropriate circumstances the Fourth Amendment permits a law enforcement officer to stop a suspect on facts that do not constitute probable cause if the officer's observations reasonably lead him to believe that the suspect is committing or is about to commit a crime. Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968); State v. Lesnick, 84 Wn.2d 940, 530 P.2d 243 (1975). However, the scope of the officer's stop and inquiry is limited. He may only ask the detainee to identify himself and explain the suspicious circumstances. State v. Gluck, 83 Wn.2d 424, 426, 518 P.2d 703 (1974); State v. Moreno, 21 Wn. App. 430, 434, 585 P.2d 481 (1978), review denied, 91 Wn.2d 1014 (1979). Once the officer proceeds to ask a detainee specific questions designed to elicit incriminating statements, he is adjudged to have *119made an arrest. At that point, the officer must have probable cause to arrest and have advised the suspect of his Miranda rights. State v. Moreno, supra.
This does not mean that during an investigatory stop an officer cannot ask questions beyond the initial ones concerning identity and an explanation of the suspicious circumstances. The answers to these initial questions may give rise to other suspicious circumstances that require further explanation. Eventually, the questioning may lead to probable cause for the individual's arrest as in State v. Sinclair, 11 Wn. App. 523, 523 P.2d 1209 (1974). At that point, the Miranda warnings must be given.
Here, the State conceded both in the trial court and in this court that the officers did not have probable cause to arrest Mr. Sykes at the time they stopped his vehicle. Instead, it contends the officers were engaged in an investigative stop. I have no quarrel with the propriety of the officers' stop; surely, the information given by the informant, corroborated by the conduct of Mr. Sykes, justified the stop. The error arises from the manner in which the investigation was conducted.
Immediately after the officers stopped the vehicle, they gave Mr. Sykes Miranda warnings and proceeded to elicit answers to questions which required Mr. Sykes to either admit or deny his guilt. They never inquired as to his identity, or asked him why he was on the school grounds, or what was in the green box. Rather, after first giving Mr. Sykes the Miranda warnings, they immediately asked him if he possessed the marijuana. When they obtained that admission, the officers secured Mr. Sykes' permission to search the vehicle. The trial court found Mr. Sykes had been arrested without probable cause, rejected the investigatory stop theory and suppressed the evidence. In doing so, the trial court, in my opinion, was correct.
The majority in its opinion engages in "bootstrapping." They allow the police to make an investigatory stop based upon certain suspicions that the State agrees do not give rise to probable cause for an arrest. Then, they proceed to *120use those very same suspicions to justify going beyond the accepted bounds of questioning permitted by an investigatory stop. The police did not use the investigatory stop to obtain information which caused them to become more suspicious; rather, they utilized the investigatory stop as a pretext for asking incriminating questions that would only be allowed following an arrest. The logical inconsistency of this position is seen in that the police obtain all the benefits of custodial arrest—the power of authority, the fear of incarceration, and the whole panoply of psychological persuasion which is inherent in what amounts to a custodial arrest, without meeting any of the prerequisites.
In my opinion, the police must either arrest a suspect, that action to be reviewed by the standards of probable cause applicable in such situations,3 or they must strictly limit the scope of the investigatory stop to that allowed under State v. Gluck, supra; and State v. Moreno, supra. That the scope of investigation permitted upon an investigatory stop is limited was reaffirmed in State v. Thompson, 93 Wn.2d 838, 613 P.2d 525 (1980); and State v. Larson, 93 Wn.2d 638, 611 P.2d 771 (1980).
Further, the majority seems to indicate that the giving of Miranda warnings renders Mr. Sykes' confession of guilt admissible and his consent to the search of his car renders the marijuana admissible. I disagree.
When the police exceeded the bounds of an investigatory stop and without probable cause arrested Mr. Sykes, his admission and consent to the search were tainted and inadmissible. Analogously, the court addressed this question in Brown v. Illinois, 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). In Brown, the defendant was arrested at *121his home without probable cause and under circumstances that indicated the arrest was for the purpose of questioning the defendant about a murder. There, the police officers gave defendant his Miranda warnings, then immediately took him to the station house where, after questioning, he confessed to the murder. The court, 422 U.S. at 591-92, 95 S. Ct. at 2256, framed the issue as:
[W]hether the statements were to be excluded as the fruit of the illegal arrest, or were admissible because the giving of the Miranda warnings sufficiently attenuated the taint of the arrest. See Wong Sun v. United States, 371 U. S. 471 [9 L. Ed. 2d 441, 83 S. Ct. 407] (1963).
The Brown court examined the rationale of the Wong Sun decision, which held that a defendant's statements made after his illegal arrest were inadmissible because the statements were not "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486, 9 L. Ed. 2d 441, 83 S. Ct. 407, 416-17 (1963). That is, the evidence was arrived at by exploitation of the initial illegality instead of by means sufficiently distinguishable to break the causal chain between the illegal arrest and the subsequent obtaining of evidence. According to Brown, Wong Sun mandates consideration of whether evidence which is apparently freely given is admissible in light of the distinct policies and interests of the Fourth Amendment. Brown v. Illinois, supra at 602.
The Brown court held that Miranda warnings, by themselves, could not attenuate the taint of illegal arrest. Otherwise, the court reasoned, the State could avoid the exclusionary effect of a violation of the Fourth Amendment by simply giving the defendant his rights. The rationale of this conclusion was expressed at pages 602-03:
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 U. S. 721, 726-727 [22 L. Ed. 2d 676, 89 S. Ct. 1394, 1397] *122(1969). Arrests made without warrant or without probable cause, for questioning or "investigation," would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a "cure-all," and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to "a form of words." See Mapp v. Ohio, 367 U. S. at 648 [6 L. Ed. 2d 1081, 81 S. Ct. 1684, 1687 (1961)].
(Footnotes omitted.) The question of whether the facts are sufficient to remove the taint of the illegal arrest must be answered by the facts of each case. The temporal proximity of the arrest, admission and search, the presence of intervening circumstances, and the purpose and flagrancy of the police conduct are relevant in making this determination. Brown v. Illinois, supra at 603. The burden of proving that the evidence was not tainted by the illegal arrest is upon the State. See also Morgan v. Estelle, 588 F.2d 934 (5th Cir. 1979); United States v. Popejoy, 578 F.2d 1346 (10th Cir. 1978); United States v. Barber, 557 F.2d 628 (8th Cir. 1977).
Here, the State concedes that the officers did not have probable cause to arrest Mr. Sykes. The questions asked by the officers went beyond the scope of questions allowed in an investigatory stop. The trial court properly held the officers made an illegal arrest. Mr. Sykes' admission and consent to search his automobile were obtained almost immediately after the stop. In these circumstances, I would hold that the admission and consent to search were obtained as a direct result of the illegal arrest, instead of by means sufficiently distinguishable to break the chain between the illegal arrest and the subsequent search under the Fourth Amendment.4
*123For the foregoing reasons I would affirm the trial court's order of suppression and for that reason dissent from the majority opinion.
The officer must have probable cause to believe that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). "Probable cause exists where the facts and circumstances within the arresting officer's knowledge and of which he has reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in a belief that an offense has been or is being committed." State v. Gluck, supra at 426-27.
The majority refers to State v. Shoemaker, 85 Wn.2d 207, 533 P.2d 123 (1975), decided prior to Brown v. Illinois, supra. Shoemaker was not cited or relied upon in the trial court nor in this court by either party. The trial court may *123be affirmed on any theory on appeal, but it may not be reversed on a theory not first presented to it.