The opinion
McMILLIAN, Judge.
I respectfully dissent.
It is my firm opinion that there was no probable cause for defendant’s arrest and that the search of his person conducted immediately subsequent to the unlawful arrest violated defendant’s constitutional right under the Fourth Amendment to the United States Constitution and Article I, § 15 of the Missouri Constitution to be free from unreasonable searches and seizures. Consequently, the trial court should have granted defendant’s motion to suppress the evidence obtained as a result of the unlawful arrest, search and seizure. Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914) and Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961).
Subject to certain exceptions, a search of a person, place or object protected by the Fourth Amendment is valid only if authorized by a valid search warrant. Chapman v. United States, 365 U.S. 610 , 81 S.Ct. 776 , 5 L.Ed.2d 828 (1961). The state claims that the search of defendant’s person was valid as a search incident to a lawful arrest. Searches incident to valid arrest comprise a' well-recognized exception to the warrant requirement. Agnello v. United States, 269 U.S. 20 , 46 S.Ct. 4 , 70 L.Ed. 145 (1925) and United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 (1950).
The other clearly defined exceptions do not apply to the fact situation of this case. There was no evidence in plain view of the officer which would justify a warrantless search as in Harris v. United States, 390 U.S. 234 , 88 S.Ct. 992 , 19 L.Ed.2d 1067 (1968). There was no “hot pursuit” or danger to life as in Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967). Nor was the search a “protective search” for weapons based upon less than probable cause to arrest under the “stop and frisk” doctrine of Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968). The arresting officer testified that he had no reason to believe that either subject was armed. The state does not claim that the search fell within any of the above-mentioned exceptions. In order for the search to have been valid, it must have been conducted incident to a lawful arrest based on probable cause. State v. Novak, 428 S.W.2d 585, 591 (Mo.1968). “It is the fact of the lawful arrest which establishes the authority to search.” United States v. Robinson, 414 U.S. 218, 235 , 94 S.Ct. 467, 477 , 38 L.Ed.2d 427 (1973); Kansas City v. Butters, 507 S.W.2d 49, 53 (Mo.App.1974). Consequently, the constitutional validity of the search in this case depends upon the constitutional validity of defendant’s arrest and whether or not, at the moment the arrest was made, the officer had probable cause to make it.
Judicial determination of the constitutionality of an arrest, search and seizure *175 necessarily turns on the “concrete factual context of the individual case.” Sibron v. New York, 392 U.S. 40, 59 , 88 S.Ct. 1889, 1901 , 20 L.Ed.2d 917 (1968) and Kansas City v. Butters, supra, 507 S.W.2d at 51 . “A common temptation in resolving ‘search and seizure’ cases . . . is to engage in doctrinaire statements of law with, at best, only a superficial analysis of the underlying facts.” Kansas City v. Butters, supra, at 51 . It is my opinion that the majority bases its finding of probable cause on a superficial analysis of the concrete facts of the case.
I would add the following to the majority’s statement of the facts. The majority states that at the time of the arrest, Officer Atwood knew that a felony had been committed “as recently as little more than an hour before his investigation of the crime.” There is absolutely no evidence in the record to support such an inference. The victim of the burglary, Helen Brown, testified that she left the apartment for work at 7:30 A.M., and returned at 8:45 P.M. to find that her residence had been burglarized. The burglary could just as well have occurred as much as twelve hours before the officer’s investigation of the crime. While it is true that defendant and his companion were stopped within a few feet of the burglarized apartment, Officer Atwood testified that his investigation later substantiated their explanation that they had been visiting a friend’s apartment on the same floor and were in the process of leaving the building. When Officer Atwood observed them walking in the hallway, they were 'not walking away from Mrs. Brown’s apartment; they were walking away from their friend’s apartment down the hall. The officer offered no other reason to suspect defendant of the commission of the crime other than his association with Marshall, whom he recognized. The officer did not observe any suspicious conduct on the part of defendant, nor did he recognize defendant to be a troublemaker or felon. These additional facts render the majority’s finding of probable cause less justifiable.
The substance of all definitions of probable cause is a reasonable ground for belief of guilt. Carroll v. United States, 267 U.S. 132, 161 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925). Probable cause exists where the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-176 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949); Beck v. Ohio, 379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964); State v. Maxwell, 502 S.W.2d 382, 386 (Mo.App.1974).
The courts have excluded certain elements from the definition of probable cause. Good faith on the part of the arresting officer is not enough. Beck v. Ohio, supra, 379 U.S. at 97 , 85 S.Ct. 223 . In Beck , the Supreme Court failed to find probable cause for an arrest which was made “in good faith” and on the basis of the officer’s knowledge of Beck’s physical appearance and previous arrest record.
Nor is mere suspicion enough to support a warrantless arrest based on probable cause. “Common rumor or report, suspicion, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.” Henry v. United States, 361 U.S. 98, 101 , 80 S.Ct. 168, 170 , 4 L.Ed.2d 134 (1959). In Papachristou v. City of Jacksonville, 405 U.S. 156 , 92 S.Ct. 839 , 31 L.Ed.2d 110 (1972), the Supreme Court declined to find probable cause in the vague realm of suspicion. “A presumption that people who might walk or loaf or loiter . . . or who look suspicious to the police are to become future criminals is too precarious for a rule of law.” Papachristou v. City of Jacksonville, supra, at 171 , 92 S.Ct. at 848 . Likewise, a presumption that the companion of one who is recognized by the arresting officer and who may have committed a crime as much as twelve hours earlier is also guilty of the particular offense is a presumption which enlarges *176 the bounds of probable cause beyond the limits of reasonableness.
The United States Supreme Court, as well as federal and state courts have manifested a general reluctance to impute guilt to the defendant from the company in which he was observed. In United States v. Di Re, 332 U.S. 581 , 68 S.Ct. 222 , 92 L.Ed. 210 (1948), the officer was informed by R that he was going to buy counterfeit ration coupons from B. The officer followed B and observed him enter the defendant’s car. The officer went to the vehicle and found R in the back seat holding two counterfeit ration coupons. The defendant, Di Re, was seated by B on the front seat. R told the officer he had received the coupons from B. All three were arrested without a warrant and taken into custody. The decision turned upon whether there was probable cause to arrest Di Re. The government claimed that the search of Di Re (which yielded counterfeit coupons) was incident to his lawful arrest although it was conceded that at the time of the arrest the officers had no information implicating Di Re and no information pointing to possession of any coupons, unless his presence in the car warranted that inference. The court stated: “The argument that one who ‘accompanies a criminal to a crime rendezvous’ cannot be assumed to be a bystander ... is farfetched when the meeting is not secretive . . . but in broad daylight, in plain sight of passers-by ...” 332 U.S. at 593 , 68 S.Ct. at 228 . The fact situation of Di Re parallels that of the case before us. As in Di Re, defendant’s arrest was based upon the fact that he was present near the scene of the crime (even though his presence was not contemporaneous with the commission of the crime as in Di Re) and in the company of an individual, Marshall, who the police may have had reason to suspect of having committed a felony. In Di Re there was no question regarding the existence of probable cause to arrest Di Re’s companion. Here, there was no finding or claim that the police even had probable cause to arrest defendant’s companion. The defendant and his companion were not being secretive, or hiding from passers-by. Certainly, there was less probable cause to arrest defendant than there was to arrest Di Re. The majority lists the following facts as justification for their finding of probable cause: “a crime had been recently committed, the defendant was at the scene of the crime and in association with one who had in his possession fruits of the crime.” The Supreme Court in Di Re did not find such circumstances sufficient to support a finding of probable cause. In holding defendant’s arrest to be valid, the majority has effectively ignored the Di Re standard for probable cause.
The Eighth Circuit has also held that mere association with a suspected criminal is insufficient information upon which to base a warrantless arrest. In United States v. Bazinet, 462 F.2d 982 (8th Cir.1972), the officer had no information to connect Bazinet with the commission of any crime, but arrested him because of his presence in the car with A, who was carrying in a concealed fashion, items suggestive of criminal activity on A’s part, and also the fact that the accompanying officer recognized Bazinet as a convicted felon. The court held such information to be insufficient to support a finding of probable cause. United States v. Bazinet, supra, at 989 ;
In State v. Seymour, 438 S.W.2d 161, 163 (Mo.1969), the Missouri Supreme Court held that “the fact of association is not, in and of itself, reasonable grounds for arrest.” The police had probable cause to suspect Seymour’s companion of a burglary committed earlier, but the court found that the basis for Seymour’s arrest was necessarily his association with the companion at a time too far from the time of the offense to warrant the inference that they were together in the commission of the burglary. . 438 S.W.2d at 163 . Here, the defendant was seen in the presence of his companion at a time at least one hour and possibly as much as twelve hours subsequent to the commission of the *177 crime. To distinguish Seymour, the majority erroneously relies on the dubious inference that defendant’s arrest was proximate in time to the commission of the burglary. However, as stated previously, the evidence does not support such an inference.
The majority cites State v. Berstein, 372 S.W.2d 57 (Mo.1963) for the proposition that association with a known felon and the finding of stolen goods in possession of the felon are sufficient circumstances to support a finding of probable cause. However, the Missouri Supreme Court’s standard for probable cause as applied to the facts in Berstein was subsequently held invalid in White v. Swenson, 301 F.Supp. 447, 462-463 (W.D.Mo.1969). The court in Berstein had applied the following standard in holding that the officer had probable cause to arrest without a warrant: “The officer must not act arbitrarily, but must exercise his discretion in a legal manner, using all reasonable means to prevent mistakes [and] . . . must be actuated by such motives as would influence a reasonable man acting in good faith.” State v. Berstein, supra, 372 S.W.2d at 59 . This language was held to be inconsistent with controlling federal standards in White v. Swenson, supra, 301 F.Supp. at 462-463 . In State v. Seymour, supra, 438 S.W.2d at 163 , the Missouri Supreme Court also invalidated the standard for probable cause used in Berstein . Consequently, it is gross error for the court to rely on the Berstein case as precedent for a holding that the fact situation of this case, similar to that in Berstein , supports finding of probable cause.
Likewise, the majority’s reliance on Tindle v. United States, 117 U.S.App.D.C. 27 , 325 F.2d 223 (1963) is also questionable. First, Tindle was decided prior to the handing down of Beck v. Ohio, supra, in which the Supreme Court sharpened the standards for probable cause in warrantless arrest. Second, the short opinion in Tindle is totally void of any statement of facts, a necessary element of any judicial determination in the area of search and seizure. Beck v. Ohio, supra, 379 U.S. at 96 , 85 S.Ct. 223 . Third, the court stated that the information on the basis of which Tindle was arrested stemmed in part from the arrest of another person which was assumed to be unlawful. 325 F.2d at 224 . We are not told what other information the officer possessed when he arrested Tindle. Assuming arguendo that association with a suspected guilty party may be one circumstance which, when combined with others, may constitute probable cause for arrest, the “other circumstances” must have some nexus with the defendant’s own conduct. Otherwise, the justification for arrest boils down to mere association. In this case, there is no nexus between the fruits of the search of defendant’s companion and defendant’s own conduct. The majority erroneously assumes that the information obtained from defendant’s companion provides the requisite “additional circumstance” to give probable cause for defendant’s arrest. However, but for defendant’s association with Marshall, this information was of no value to the officer as a basis for defendant’s warrantless arrest. There was nothing intrinsically suspicious in the activities of defendant; no furtive movements, no suggestion of flight. In order for this court to find probable cause for defendant’s arrest, there must have been some other information in the officer’s possession pertaining to defendant other than his association with Marshall.
An important limitation on the officer’s discretion is that the requirements of probable cause for warrantless arrests cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principle incentive now existing for the procurement of an arrest warrant would be destroyed. Wong Sun v. United States, 371 U.S. 471, 479-480 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963). A warrantless arrest bypasses the safeguards provided by an objective predetermination of probable cause and substitutes instead the far less reliable procedure *178 of an after-the-event justification for the arrest or search too likely to be subtly influenced by the familiar shortcomings of hindsight judgment. Beck v. Ohio, supra, 379 U.S. at 96 , 85 S.Ct. 223 . Had Officer Atwood taken the quantum of information on Drake (which he possessed immediately prior to the arrest) to a neutral and detached magistrate, it is doubtful that an arrest warrant would have issued.
Here, as in many search and seizure cases, we meet the argument that if such arrests and searches cannot be made, law enforcement will be severely restricted. But our forefathers “after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.” United States v. Di Re, supra, 332 U.S. at 595 , 68 S.Ct. at 229 . It is not within this court’s discretion to expand the standards of judicial determination of probable cause. In expanding the permissible scope of searches incident to lawful arrests, (United States v. Robinson, supra) Gustafson v. Florida, 414 U.S. 260 , 94 S.Ct. 488 , 38 L.Ed.2d 456 (1973)) the Supreme Court heavily relied on the existence of probable cause to arrest as justification for its holding. Consequently, this court has a special duty to stay within the acceptable bounds of Beck v. Ohio, supra, in determining the existence or nonexistence of probable cause to arrest. Resolution of the constitutionality of the officer’s arrest should be separated from the resolution of defendant’s innocence or guilt.
For these reasons, I believe that the war-rantless search of defendant, not conducted incident to a lawful arrest based on probable cause, was unreasonable and that the evidence seized as a result of the search should have been suppressed. Since the state cannot make a case without such evidence, the judgment should be reversed and the defendant discharged.