concurring.
I write separately to express my disagreement with that portion of the majority opinion which upholds the search of Lea-veil’s person as incident to a lawful arrest. I do not believe this search may be characterized as incident to an arrest, but should instead be analyzed under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Based on the conversation overheard at the hotel room door, the officers became reasonably suspicious of criminal activity. Under Terry, such a suspicion is sufficient to justify further investigation and a pat-down search solely for the purpose of discovering weapons. Thus, the initial detention and pat-down was permissible, but the officers exceeded the scope of Terry when they removed a small package of marijuana from inside the watch pocket of Leavell’s blue jeans. Johantgen v. Commonwealth, Ky.App., 571 S.W.2d 110 (1978). In over*698ruling Leavell’s motion to suppress, the trial court did not find that the police officers believed the watch pocket contained a weapon. To sustain this warrantless search, such a finding would be necessary, and its absence is fatal to the Commonwealth’s contention that the search was lawful. Gallman v. Commonwealth, Ky., 578 S.W.2d 47 (1979). Thus, the small bag of marijuana should have been excluded from the evidence at trial.
The majority has attempted to justify the search of Leavell’s person as incident to his arrest. Before an arrest may be made under these circumstances, there must be probable cause. Without probable cause to make the arrest, there can be no lawful search incident thereto. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). At the time Leavell was searched, the police officers’ suspicion was based on his shabby appearance and the conversation overheard at the hotel room door. This was insufficient to justify his arrest or detention for anything more than a limited investigation and a Terry search. Not until the package of marijuana was discovered and removed from the inside of Leavell’s pocket did the police have probable cause to arrest him. The result is that Leavell was unlawfully searched and then arrested for contraband illegally seized. Such a practice is impermissible. As the Supreme Court stated in Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917, 934 (1968):
It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.
Despite my belief that the search of Lea-veil’s person and the seizure of marijuana from his pocket was unlawful, I nevertheless believe the conviction should be affirmed. During the course of the stop, pat-down search, and investigation, the police officers asked Leavell to open the briefcase. His response was ambiguous, but the trial court found that Leavell gave his consent to the search of the briefcase. As this finding is supported by substantial evidence, for purposes of our review, it is conclusive. RCr 9.78 and Diehl v. Commonwealth, Ky., 673 S.W.2d 711 (1984). Examination of the briefcase revealed one thousand dollar bill wrappers, a calculator, and a General Motors car key.* This discovery, coupled with the overheard conversation, created probable cause to obtain a warrant for the search of the hotel room and automobile. The search of the automobile revealed ninety pounds of marijuana and this formed the basis of LeavelPs conviction.
In addition to the strong physical evidence in this case, there was corroborative testimony from Tom Moran. The evidence of defendant’s guilt is so overwhelming that even if the trial court had suppressed the small package of marijuana, Leavell’s conviction for trafficking in marijuana would have nevertheless occurred. I am pursuaded, therefore, that the error in the admission of this evidence was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Blake v. Commonwealth, Ky., 646 S.W.2d 718 (1983).
The trial court’s findings as to the content of the briefcase is as follows:
The defendant Leavell gave the police permission to open the briefcase. The police found money wrappers for $1,000 bills, a calculator and a General Motors car key.