OPINION
Appellant, Douglas Warren Whitehead, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Bryan County, Case No. CRF-75-21, for the offense оf Unlawful Possession of Marihuana With Intent to Distribute, in violation of 63 O.S.1971, § 2-401. His ■punishment was fixed at five (5) years’ imprisonment, and from said judgment and sentence a timely appeal has been рerfected to this Court.
The facts as presented at trial revealed that on March 9, 1975, at approximately 7:00 p. m., Officer James Hill, a patrolman for the City of Durant, wаs dispatched to the Roadrunner Motel to investigate a report of a stolen firearm allegedly committed by the occupant of Room No. 7. Officer Hill, unable to get a response from Room No. 7, had begun to walk away when the defendant and two other persons walked out of Room No. 6. Officer Hill immediately approached these three persons and began to ask them questions concerning the whereabouts of the occupant of Room No. 7 when Officer Hill detected the odоr of marihuana which appeared to emanate from the defendant and the room from which he had come. Officer Hill, not fully satisfied with the investigation of the ocсupant of Room No. 7, did not detain the defendant or the other persons with him. However, moments later determining that Room No. 7 was unoccupied, Officer Hill followed in his patrol car the defendant and his two friends who had gotten into defendant’s car and driven away. After radioing for a backup unit, Officer Hill pulled the defendant’s car over and gоt out of his patrol unit to talk to the defendant who had likewise gotten out of his *275 car. At this point, Officer Webb who had arrived in the backup unit, approached the defendаnt’s vehicle and requested that the defendant’s two companions get out of the car. After the companions had gotten out of the car Officer Webb proceeded to search the defendant’s automobile. Under the driver’s seat of the automobile Officer Webb noticed the edge of a brown paper sack. Upon rеtrieving the sack Officer Webb discovered that the sack contained four baggies of marihuana. Incident to the seizure of the marihuana defendant was arrested and taken into custody by Officer Hill and Officer Webb.
After Officer Hill arrived at the police station he contacted Detective Bob Hendricks of the Durant Police Departmеnt. Detective Hendricks, at the request of Officer Hill, went to the police station where Officer Hill informed him of the circumstances leading up to the arrest of defendаnt. After a brief discussion of the incident Officer Hill accompanied Detective Hendricks to the Roadrunner Motel. Detective Hendricks was unable to see into the rоom until he employed the use of a table which allowed him to see above the curtains in the window. Detective Hendricks then opened the unlocked door to the room and detected the lingering aroma of marihuana. Hendricks then contacted the Assistant District Attorney and obtained a search warrent to defendant’s room. During thе course of this search Hendricks, as well as other officers of the Durant Police Department, found several baggies of marihuana, a bag of marihuana seeds, some marihuana stems, and other marihuana related paraphernalia.
The defendant in his first assignment of error contends that the search and seizure of the automobile was illegal and the fruits obtained therefrom, likewise, inadmissible. With this contention, we must agree. In Constitutional Art. 2, § 30, of the Oklahoma Constitution, we find the following provision:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures shall not be violated; and no warrаnt shall issue but upon probable cause supported by oath or affirmation, describing as particularly as may be the place to be searched and the person or thing to be seized.”
This Article, which is the predicate on which all search and seizure law depends, authorizes searches when such a search is either' reasоnable under the circumstances or based upon a valid warrant. As can be seen from the record, the search of the automobile in the instant case was not bаsed upon a warrant; therefore, it must stand or fall upon the reasonableness of the search under the circumstances. Basically, there are two occаsions on which a search without a warrant may be justified as reasonable: One is where the search is incident to a lawful arrest; and, the second is when probable cаuse exists to believe that the defendant is in possession of that which is subject, by law, to seizure. However, the second occasion is limited by the requirement that there be “еxigent circumstances.” If the officer would not be endangered by foregoing the search until a warrant could be obtained, or if there is no danger that the evidence wоuld be destroyed, then a warrant must be obtained prior to the search. See,
Chambers v. Maroney,
The defendant also contends that the search of the motel room, even though based on a warrаnt, was illegal and the fruits thereof should have been suppressed. We must agree.
The affidavit contained in the search warrant issued for the search of defendant’s roоm was based on: The original detection of the odor of marihuana by Officer Hill; and the seizure of the marihuana during the illegal search of defendant’s car. As can be seen, a substantial basis for the warrant was the fruit of the illegal search and seizure. Also, the actions of Detective Hendricks are of the type specifically prohibited by Constitutional Art. 2, § 30. In
Hamel v. State,
Okl.Cr.,
For the reasons stated in the foregoing discussion, this Court holds that the judgment rendered in the court below is, hereby, reversed.