OPINION
ODOM, Judge.This is an appeal from a conviction for possession of less than two ounces of marihuana. Punishment was assessed at a $100.00 fine and five days in jail, and appellant was placed on probation for twelve months.
On the evening of February 5, 1977, appellant and two female companions were in an area behind the Everett Hardware Store in Austin at 9:40 p. m., lying in leaves, when they were approached by a city police officer investigating noises he heard from that area. The officer asked the group what they were doing there and one of the girls answered, “Nothing.” They were all ordered against the wall of the building so they could be frisked. Appellant was then asked what he was doing there, and he said he was drinking beer. When asked if he *192had ever been arrested before, he said yes he had, for burglary. All three were then placed under arrest for loitering under Austin City Ordinance 23-9. After they were arrested and placed in the police car, a baggie of marihuana was taken from appellant’s right sock.
In his first ground of error appellant challenges the denial of his motion to suppress, contending the contraband was recovered as a result of an unlawful arrest under an unconstitutional municipal ordinance. The ordinance under challenge provides:
“It shall be unlawful for any person within the city to be in the nighttime in or about public or private buildings or premises, where he has no right or permission to be, under suspicious circumstances, and without being able to give a satisfactory account of the same.”
This ordinance in substantially thfe same form was approved over challenges to its constitutionality in Sims v. State, 391 S.W.2d 63 (Tex.Cr.App.). In that opinion, however, we neglected to consider the vagueness of the element of this offense of “without being able to give a satisfactory account of the same.” This standard, we find, is patently unconstitutional on its face, because it is “in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application ....” Baker v. State, 478 S.W.2d 445, 449 (Tex.Cr.App.) quoting Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).
There is no statutory designation of what would constitute a “satisfactory account.” In practice, such a standard delegates unguided and unrestrained discretion to the arresting officer to decide what answers given by a potential arrestee are “satisfactory account[s]” and which are not. The result is that the ordinance not only “[l]ack[s] intelligible standards to guide those charged with its enforcement” (Baker v. State, supra), but in fact affirmatively assigns to the arresting officer the legislative responsibility to give content and meaning to the ordinance by defining one of its elements with the “fill in the blank” standard that makes the scope of offending conduct a product of the officer’s subjective determination of whether he finds the detainee’s account of the circumstances in which he is found, to be, in the officer’s judgment, satisfactory.1
Having found the ordinance under which appellant was arrested to be patently unconstitutional on its face, we must determine whether the contraband seized pursuant to that arrest should have been suppressed by the trial court.
In the recent decision in Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343, the Court announced a rule permitting the introduction of evidence seized pursuant to an arrest under a law then in force, even though it is subsequently declared unconstitutional. The Court, however, did recognize “the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws.” What law could be more grossly and flagrantly unconstitutional than one that leaves to the arresting officer the task of giving content to one element of the offense, and of deciding the scope of the ordinance’s prohibition, according to his own judgment of what constitutes a “satisfactory account” by the potential defendant? We hold the ordinance under which appellant was arrested exhibits a vagueness obvious to “any person of reasonable prudence,” and the evidence should have been suppressed.
*193Alternatively, we note that in Baker v. State, supra, a knife seized incident to an arrest under an unconstitutional vagrancy statute was ordered suppressed in a prosecution for unlawfully carrying a switchblade knife. We reaffirm the soundness of the Baker rule as a matter of state law, independently of the standard announced in DeFillippo, supra, and hold that the evidence seized incident to an arrest under an unconstitutional law is excludable under Texas law. See, Art. 1, Sec. 19, Texas Constitution; Art. 38.23, V.A.C.C.P.
Because the trial court erred in denying appellant’s motion to suppress, the ground of error is sustained.
The judgment is reversed and the cause remanded.
ONION, P. J., and DOUGLAS, TOM G. DAVIS and DALLY, JJ., dissent.Before the court en banc.
. The ordinance is not susceptible of a narrowing construction by severing the invalid language, as was done in Delorme v. State, 488 S.W.2d 808 (Tex.Cr.App.). “[I]f one element of a single offense is found constitutionally defective, the offense must fall, because to sever the single element would broaden the scope of the statute, prohibit new conduct not prohibited by legislative act, and violate the legislative intent. The courts would be creating a new offense, prohibiting conduct not theretofore an offense.” Hixon v. State, 523 S.W.2d 711, 717 (Tex.Cr.App.) (concurring opinion).