*268Dissenting Opinion by
Hoffman, J.,at No. 984:
The issue before the Court is whether the appellants’ consent to a police search vitiated the illegality of the arrest.
On November 16, 1972, appellants, Paul Richard (a/k/a Richard Anthony Harris) and Theodore James Santos, Jr. were travelling east on the Pennsylvania Turnpike. They were riding in a 1966 International Travelall owned by Santos which was registered in California. At about 1:30 p.m., the police broadcast a description of the vehicle and of the appellants and the belief that the vehicle contained a large quantity of marijuana. The vehicle was spotted by State Trooper Max Seiler, who requested assistance for the purpose of stopping the vehicle. He was joined by Trooper Robert Geary in a separate cruiser. The appellants complied with the Troopers’ instructions to pull off the highway. On alighting from their vehicles, Geary armed himself with a 30 caliber carbine and Seiler with a 12 gauge pump shotgun. Geary kept the appellants covered while they were ordered to “spread eagle”; Seiler conducted a body search to assure himself that the two suspects were not armed.
Seiler went back to his cruiser to conduct a license and owner’s card check on the appellants. Geary read them their “Miranda” warnings from the standard police form. The appellants stated that they understood their rights. After the warnings were given, Geary asked them for written permission to search the International Travelall. Seiler rejoined them after the license check proved negative. Seiler further warned the appellants that if consent were not given, the troopers would lock the vehicle and swear out a warrant before the district magistrate. Thereafter, the appellants signed a statement of consent prepared by Geary.
The search which followed the execution of the consent form revealed over two hundred pounds of mari*269juana. Following the discovery of the marijuana, the appellants were taken to the State Police Barracks. At the barracks, the appellants signed forms indicating that they wanted to consult with an attorney. Thereafter, on the way to the district magistrate’s office, the police officers engaged appellants in what the officers described as an “informal, inquisitive type conversation” that led to an incriminating statement by appellant Richard.
In January of 1973, appellants were indicted on one count of Unlawful Possession with Intent to Deliver a Schedule I Controlled Substance. Appellants moved to suppress the physical evidence and the statement made by appellant Richard. The motions were denied after a hearing on February 26, 1973. Subsequently, appellants waived a trial by jury and were tried before the court on February 28, 1973. A finding of guilt was handed down on May 21, 1973. In January of 1974, appellants’ motions in Arrest of Judgment and for a New Trial were denied. On April 16, 1974, appellant Richard was sentenced to two to five years imprisonment and appellant Santos was sentenced to one to three years imprisonment.
In a recent United States Supreme Court case, Mr. Justice Stewart stated the law governing warrantless searches: “It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is ‘per se unreasonable . . . — subject only to a few specifically established and well-delineated exceptions.’ [citations omitted]. It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. . . .” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043-44 (1973).
Another exception to the otherwise strict warrant requirement is that a warrantless search may be made incident to a lawful arrest. Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921 (1972) citing as authority Brinegar *270v. United States, 338 U.S. 160 (1949) and Carroll v. United States, 267 U.S. 132 (1925). The arrest must, however, be based on probable cause; absent probable cause to arrest, the arrest is illegal and the evidence seized in the incident search must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Mackie, 456 Pa. 372, 320 A. 2d 842 (1974).
In the instant case, the Commonwealth does not contend that the officers had probable cause to stop the vehicle and concedes that the radio alert was based on insufficient probable cause: “The Commonwealth here does not rely on the radio bulletin to establish probable cause as it does not rely on justifying the search as incident to a lawful arrest, but merely asserts that the bulletin justified the initial stopping of the vehicle.”
The Commonwealth attempts to justify the warrant-less search on the grounds that the appellants freely consented to the search. The Commonwealth suggests that the stop of the appellants’ vehicle was legal; that the initial patdown of the appellants was justified, (see Terry v. Ohio, 392 U.S. 1 (1968)); that thereafter, a voluntary consent to search the vehicle was made. Inherent in the Commonwealth’s argument are at least two assumptions. First, after the patdown but before the consent was granted, the appellants were not under arrest. Second, even if under arrest whether legal or illegal, the appellants could nonetheless effectively consent to the search.
The Commonwealth’s argument flies in the face of the recent Pennsylvania Supreme Court decision in Commonwealth v. Swanger, 300 A.2d 66 (1973), aff’d on rehearing, 453 Pa. 107, 111, 307 A. 2d 875 (1973): “when a police officer stops a vehicle he has ‘seized’ the vehicle and its occupants, and thus, the protections of the Fourth Amendment must be considered.” The police in the present case observed no viola*271tion of The Vehicle Code of Pennsylvania,1 and the Commonwealth presents no argument that there was probable cause for the stop of the vehicle. Hence, the stop of the vehicle without a violation of the Code and without probable cause was an arrest without legal justification. Further, once the police had stopped the appellants and had conducted the initial patdown,2 there is no question that the appellants were under arrest. In fact, the police told appellants that they could either consent to the search or the officers would lock up the vehicle on the side of the road and take the appellants before a district magistrate. That is, the officers themselves made clear that the appellants were being restrained. (Cf. Henry v. United States, 361 U.S. 98, 103 (1959): “When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this particular case, was complete-.”) Hence, before probable cause was shown, appellants were under arrest.
Once the appellants were under arrest, the subsequent “consent” was tainted by prior police illegality: the police told appellants that they had a valid basis for the arrest when in fact, they did not; therefore, appellants merely acquiesced in that show of force which they assumed was lawful. They did not voluntarily consent. Bumper v. North Carolina, 391 U.S. 543 (1968). In addition, Wong Sun, supra, dictates that the statement made by appellant Richard must also be suppressed because it was the fruit of the illegal arrest.
*272Finally, even if the consent to the search supplied the justification for the search of the vehicle, the appellants did not thereby also consent to the illegal arrest. Assuming a knowing and intelligent waiver of the right to be free from an unreasonable search, the Court cannot infer from that waiver an additional waiver of the right to be free from illegal arrest. Indeed, this Court must be mindful that “ ‘courts [must] indulge every reasonable presumption against waiver’ of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938) [footnote omitted].
Therefore, the judgment of sentence should be reversed and a new trial granted.
. 1959, April 29, P.L. 58, §101; 75 P.S. §101 et seq.
. Appellee points to Adams v. Williams, 407 U.S. 143 (1972) as controlling. In Adams, the police officer had a reasonable suspicion of criminal activity to justify a “Terry” patdown. See Terry v. Ohio, supra. The patdown revealed a weapon which justified further search incident to a lawful arrest. In the instant case, the patdown, even if legal, revealed nothing. The subsequent detention of appellants, therefore, was not justified.