(dissenting)—For the reasons stated below, I am of the opinion that the evidence admitted was unlawfully obtained by the police officers and that the motion to suppress should have been granted.
At the time of the search and seizure, the following facts were established. Appellant’s automobile was stopped by police officers for driving at 34 miles per hour in a 25 mile per hour zone. Appellant did not have a valid driver’s license and was asked to step out of the vehicle by Officer Kneeland, who testified he did not place appellant under arrest. As appellant stepped out of the vehicle, an interior light was turned on by the opening of the driver’s door. As the light came on, Officer Cameron, who was standing next to the passenger’s door, observed a glass ampoule on the floor of the car. He testified at the trial concerning the events as follows:
“. . . I just saw an ampule on the floor. I didn’t realize it was Methadrine until after I picked it up.”
*54Further, he testified:
“. . . I have never seen that type of ampule before. Q. [By appellant’s counsel] Then it might possibly be an amphetamine? A. As I said, I have never seen that type before.”
Officer Cameron then opened the passenger’s door and picked up the ampoule.
When Officer Cameron picked up the ampoule, he read aloud the word “Methedrine” from the label. It is this fact, the majority holds, that created the probable cause for an arrest which validated the subsequent search of appellant. In effect, the majority reasons that the officer knew that the ampoule contained Methedrine (a nonnarcotic) before any search of the vehicle occurred.
The test to be applied in such a case is stated by the United States Supreme Court in Wong Sun v. United States, 371 U. S. 471, 479, 9 L. Ed. (2d) 441, 83 S. Ct. 407 (1963), as follows:
“. . . It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, 361 U. S. 98, 101, though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause—evidence which would ‘warrant a man of reasonable caution in the belief’ that a felony has been committed, Carroll v. United States, 267 U. S. 132, 162—must be measured by the facts of the particular case. The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would ‘leave law-abiding citizens at the mercy of the officers’ whim or caprice.’ Brinegar v. United States, 338 U. S. 160, 176.
“Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed. The threshold question in this case, therefore, is whether the officers could, on the information which impelled them to act, have procured a warrant for the arrest of Toy. We *55think that no warrant would have issued on evidence then available.”
In the same case, at page 484, the Supreme Court pointed out that it had consistently rejected the proposition that a search, unlawful at its inception, may be validated by what it turns up.
In Ker v. California, 374 U. S. 23, 32, 10 L. Ed. (2d) 726, 83 S. Ct. 1623 (1963), the Supreme Court, in reviewing a conviction in a state court where the issue of unreasonable search and seizure was raised, said:
“Implicit in the Fourth Amendment’s protection from unreasonable searches and seizures is its recognition of individual freedom. That safeguard has been declared to be ‘as of the very essence of constitutional liberty’ the guaranty of which ‘is as important and as imperative as are the guaranties of the other fundamental rights of the individual citizen. . . . ’ Gouled v. United States, 255 U. S. 298, 304 (1921); cf. Powell v. Alabama, 287 U. S. 45, 65-68 (1932). While the language of the Amendment is ‘general,’ it ‘forbids every search that is unreasonable; it protects all, those suspected or known to be offenders as well as the innocent, and unquestionably extends to the premises where the search was made. . . . ’ Go-Bart Importing Co. v. United States, 282 U. S. 344, 357 (1931). Mr. Justice Butler there stated for the Court that ‘[t]he Amendment is to be liberally construed and all owe the duty of vigilance for its effective enforcement lest there shall be impairment of the rights for the protection of which it was adopted.’ Ibid. He also recognized that ‘[tjhere is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.’ Ibid.; see United States v. Rabinowitz, 339 U. S. 56, 63 (1950); Rios v. United States, 364 U. S. 253, 255 (1960).
“This Court’s long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application is carried forward when that Amendment’s proscriptions are enforced against the States through the Fourteenth Amendment. And, although the standard of reasonableness is the same under the Fourth and Fourteenth Amendments, the demands of our federal system compel us to distinguish between evidence held inadmissible because of our supervisory powers *56over federal courts and that held inadmissible because prohibited by the United States Constitution. We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the ‘fundamental criteria’ laid down by the Fourth Amendment and in opinions of this Court applying that Amendment. Findings of reasonableness, of course, are respected only insofar as consistent with federal constitutional guarantees. ...”
Since its decision in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. (2d) 1081, 81 S. Ct. 1684, 84 A.L.R. (2d) 933 (1961), the fourth amendment to the United States Constitution and the Supreme Court’s decisions construing it are binding on this court.
With these decisions in mind, I revert to the facts of the present case bearing upon the question of whether officers Cameron and Kneeland had reasonable and probable cause to arrest appellant which would allow the subsequent search.
In my opinion, a search and seizure occurred when Officer Cameron opened the passenger’s door and picked up the ampoule. At that time the officers could not associate Methedrine with narcotics (thus having the probable cause for an arrest found by the majority), without first conducting a search and seizure. There is absolutely no evidence in the record to indicate that a glass ampoule was or could be associated, by the officers, with narcotics, narcotic users, or even that it could be used with a hypodermic syringe. Nor is there any evidence to support the position that the ampoule was itself contraband or that it was thought to be such by the officers. Accordingly, there is nothing illegal or suspicious in the possession of a glass ampoule based on the record before this court. Therefore, I cannot agree that there was probable cause for an arrest for a narcotic violation (or even suspicion thereof) that could validate the subsequent search of appellant.
The record is also devoid of any evidence that the officers were aware of the legislative committee’s report on Methedrine quoted by the majority. The testimony indicates the *57only knowledge the officers had about. Methedrine was that they had mistakenly thought it was' a narcotic. The mere suspicion that it might be a narcotic is not enough to create the probable cause for an arrest and validate a subsequent search and seizure.
Neither can the search be validated as being incident to a legal arrest for a traffic violation. As previously stated, Officer Kneeland, the officer who stopped the car and approached appellant, testified as follows at the trial:
“Q. What is the reason that you asked him to step out of the car? A. When I stopped the car, we have the light in on the side, and I asked Mr. Sullivan for his driver’s license and he stated that he had no driver’s license. Q. At that time did you put him under arrest? A. No, at that time I just asked him to step out of the car.”
From this testimony, I think it is reasonable to conclude that no search could be conducted as incident to an arrest for a traffic violation, because appellant was not placed under arrest nor was the officer aware of any other fact or circumstance which would give him probable cause for an arrest.
I cannot agree that the search of appellant is valid under the rules of the previously cited cases or that it qualifies as a search without a warrant, as discussed in Preston v. United States, 376 U. S. 364, 11 L. Ed. (2d) 777, 84 S. Ct. 881 (1964).
State v. Brooks, 57 Wn. (2d) 422, 357 P. (2d) 735 (1960), cited by the majority, has no application in the present case. The presence of a glass ampoule in the automobile is not in itself evidence of contraband, nor does its possession give rise to evidence of suspicious circumstances.
I am of the opinion that the evidence obtained in the search of appellant’s automobile (two ampoules of Methedrine) and of his person (two marijuana cigarettes) was the result of an illegal search and seizure. Under the rules laid down in the recent decisions of the Supreme Court cited above, appellant’s motion to suppress that evidence *58should have been granted by the trial court. I, therefore, dissent and would reverse appellant’s conviction and grant him a new trial.
December 7, 1964. Petition for rehearing denied.