dissenting.
I respectfully dissent.
The record reveals that there was no evidence to show a suspicious circumstance, that appfellant was intoxicated, under the influence of drugs, belligerent, that he resisted the detention and interrogation by the officer or that he made an attempt to escape.
Further, the detention, search and arrest of appellant without a warrant was not authorized by article 14.01 Tex.Code Crim. Pro.Ann. (Vernon 1967) because a felony or an offense against the public peace was not committed in the presence or within view of the police officer. Nor was the search and arrest authorized by article 14.03 Tex.Code Crim.Pro.Ann. (Vernon Supp.1981). Appellant was not found in a suspicious place and under circumstances which would reasonably show that he was guilty of a felony or breach of the peace, or that he threatened, or was about to commit some offense against the laws. Likewise, article 14.03 Tex.Code Crim.Pro.Ann. (Vernon 1966) does not apply because it was not shown by satisfactory proof to police officer, by representation of a credible person, that a felony had been committed, that appellant was about to escape and that the police officer had no time to procure a warrant.
The State contends that the detention, search and arrest of appellant was lawful under the “stop and frisk” ruling of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry, the police officer observed suspicious activity, and believing a robbery was possible, stopped appellant for investigation and interrogation, and patted him down for weapons — he did not reach inside the man’s coat or pockets, but patted him down from the outside only. The Supreme Court held that an officer having reasonable grounds to suspect that a crime was about to be committed may lawfully make such a stop. My interpretation of Terry, however, requires findings that (1) a suspicious person presents a danger to the officer or others; (2) the officer observes unusual conduct; (3) the officer has reason to anticipate criminal activity; and (4) the officer has reason to believe the person is armed and presently dangerous. If after interrogation there is nothing to dispel his reasonable fear for his own safety or the safety of others, only then will the officer be authorized to stop and frisk. In such circumstances, the officer is limited to a search of the outer clothing.
The State cites Baity v. State, 455 S.W.2d 305 (Tex.Cr.App.1970), which is not applicable since the detention in that case was at 4:00 a.m., the appellant was found in suspicious circumstances and the officer personally knew appellant’s prior criminal record. In Crawford v. State, 544 S.W.2d 163 (Tex.Cr.App.1976), appellant was suspected of felony theft and she grabbed her purse and only after a brief struggle did the officer search and find the pistol. In Mann v. State, 525 S.W.2d 174 (Tex.Cr.App.1975), there were suspicious circumstances to support the informant’s tip, and the appellants voluntarily gave evidence to police. In Ablon v. State, 537 S.W.2d 267 (Tex.Cr.App.1976), the appellant was found in a high *700crime area under suspicious circumstances and the officer for his own safety made a pat down search. The majority relies on Martinez v. State, 500 S.W.2d 151 (Tex.Cr.App.1973), which is also distinguishable. When the appellant in Martinez was questioned by an officer, he clamped his arm down against his left side, turning his back on the officer. This was the extra circumstance giving the officer reasonable suspicion that was not present in the case at bar.
In the instant case, one factor is missing, that extra circumstance to support the unidentified informer’s tip and to justify the detention and search of appellant’s person without a warrant. The test is whether at the moment the officers detained appellant, the facts and circumstances within the officers’ knowledge and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed or was committing an offense. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).
The State has the burden of proving the legality of a warrantless arrest or search. See Collidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Hooper v. State, 533 S.W.2d 762 (Tex.Cr.App.1976). The State failed to develop their case as to the officers’ apprehension, if any, as to their safety or the safety of others. Appellant was detained and removed outside of the dancehall for interrogation and still there was no unusual activity, no resistance by appellant and certainly no circumstance that would give the officers reasonable concern for their safety or a belief that a crime was about to be committed. The United States Supreme Court held in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), that taking a suspect in custody for purposes of interrogation is in important respects indistinguishable from a traditional arrest. The Terry type intrusion of stopping and frisking was far less serious than this one, which involved no potential threat. “The Terry doctrine of ‘reasonable suspicion’ will not be extended to anything less than probable cause to detain or arrest.” Dunaway v. New York, supra.
Additionally, the State failed to inquire as to practical circumstances which precluded the officer from obtaining a warrant of arrest or search warrant. “In order for a warrantless arrest or search to be justified, the State must show the existence of probable cause at the time the arrest or search was made and the existence of circumstances which made the procuring of a warrant impracticable,” Brown v. State, 481 S.W.2d 106 (Tex.Cr.App.1972). Further, where probable cause is lacking, the challenged search will not be upheld merely because the exigencies of the situation precluded the obtaining of a warrant. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1967); Brown v. State, supra, 481 S.W.2d at 109.
Accordingly, I believe the court erroneously denied appellant’s motion to suppress.