(dissenting).
I feel that the evidence in this case should have been suppressed because the search was not made incident to a valid arrest. The majority opinion recognizes that the validity of the arrest and search is dependent on the right of the state trooper to stop the car. The trooper admitted that “no apparent violation” of the law had been committed by appellant as he was driving his car on the highway prior to being stopped. The trooper further admitted that he had had no call and was not looking for the car driven by appellant.
The majority opinion depends on Commonwealth v. Robey, Ky., 337 S.W.2d 34, and Commonwealth v. Mitchell, Ky., 355 S.W.2d 686, as justification for upholding the stopping.
The Robey case affords no comfort. There, the driver was legally arrested for a violation of the reckless driving statute and on this basis it is distinguishable. There is no claim in the case at bar that appellant *626was arrested for reckless driving despite the trooper’s statement that “ * * * the car seemed to have a little weave to it.”1 Further in the Robey case the Court said:
“ * * * While we are not aware of any precedent for holding that evidence obtained as a result of an officer’s merely stopping a person is inadmissible, we feel that due respect for the basic right of liberty (Ky. Const. Sec. 1) should afford some protection against the unjustified or unreasonable stopping of a person by a police officer. Accordingly, it is our view that if an officer stops a motorist without bona fide cause any evidence obtained as a result of the stopping should be considered to have been illegally obtained and therefore inadmissible.”
The Mitchell case affords less solace. It was there held that the action of police officers in setting up a “roadblock” for motor vehicles for the purpose of requiring the driver to display an operator’s license is not an unlawful arrest or restraint or an illegal search contrary to the Constitution. There is not even any contention in the present case that a “roadblock” had been set up.
In the Mitchell case, after approving the “systematic and indiscriminate stopping of all motor traffic on the highway for the good faith purpose of making inspections of drivers’ licenses,” the Court, in effect, condemned the type of conduct indulged in by the trooper here as- follows:
“* * * Our decision may not be regarded as sanctioning the stopping of cars for the ostensible or pretended purpose stated when in reality it is actuated by an ulterior motive not related to the licensing requirement, or is done as a pretext or as a subterfuge for circumventing the constitutional provision against searches of persons and property without a valid warrant. We shall continue to condemn such an act. See 5A, Am.Jur., Automobiles and Highway Traffic, § 134; Cox v. State, 181 Tenn. 344, 181 S.W.2d 338, 154 A.L.R. 809.”
The attempt to justify the stopping by reference to KRS 189.730(1) on the ground that the car had a “little weave” and was therefore “unsafe or not equipped as required by law, or that its equipment Is not in proper adjustment or repair,” falls into the category of pretext or subterfuge condemned in the Mitchell case. The trooper never made any claim that he stopped the car for any such purpose. Clearly it is an afterthought to seek to justify the stopping on the basis of the statute.
Under the circumstances and in the light of these authorities the trooper had no bona fide cause for stopping the car and no probable cause for believing that a misdemeanor was being committed in his presence, which was essential before he was authorized to arrest. He said that there was “no apparent violation.” The conduct of the trooper constituted an unreasonable search and seizure. Kentucky Constitution, Section 10.
The Supreme Court has recently condemned the stopping of a motor vehicle with neither an arrest warrant nor a search warrant. Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (decided November 23, 1964). It was held that the defendant’s arrest without warrant for possession of clearing house slips, a felony, by police officers who had a picture of the defendant, knew that he had a record of previous convictions for possession of clearing house slips, and were looking for him, without any showing that the officers had heard or seen anything else to give them ground for belief that the defendant had acted or was then acting unlawfully, violated the Fourth and Fourteenth Amendments and evidence seized from his person during the ensuing search was inadmissible.
Beck was driving his automobile on East 115th Street in Cleveland when he was ac*627costed by police officers who identified themselves and ordered him to pull over to the curb. He was placed under arrest without warrant and then searched. The Supreme Court held that the constitutionality of the search depended on the constitutional validity of the arrest which turned on “whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.” It was pointed out that anything less than the probable cause requirement “would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.”
The further comments of the Supreme' Court are equally pertinent here:
“ * * * In complete contrast, the record in this case does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.
“An arrest without a warrant bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the arrest or search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment. * * *
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“ * * * If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”
The effect of the majority opinion is to place the law-abiding public who travel the highways at the mercy of all law enforcement officers or persons who may seek to stop them on the highways. How can a woman driving alone at night in a law-abiding manner feel safe when she knows that the majority opinion gives any law enforcement officer the right to stop her? For that matter, what is to prevent one ■who is not a law enforcement officer from doing the same thing if the motorist is compelled to stop? Never in this land of liberty should such police state methods be permitted. Is the next step a similar right of entry into the home? The consequences which may flow from the majority opinion are frightening.
For these reasons I do not think that the state trooper had probable cause for stopping appellant’s car, and the evidence so obtained should be suppressed.
MOREMEN, C. J., and MILLIKEN, J., join in the dissent.