Rodgers, J.
Berry Smith, Jr., was indicted and convicted of having in his possession burglary tools, and sentenced to serve a term of five years in the state penitentiary. From the conviction and sentence in the Circuit Court of Forrest County, the appellant has appealed to this Court.
The conviction in this case rests largely upon the testimony of Bob Walker, the sheriff, who testified that he was driving his automobile between 8:30 and 9:00 o ’clock at night, at Palmer’s Crossing, or near the airport gate, in the City of Hattiesburg, Mississippi. He was driving about 15 miles per hour when he met a Chevrolet Impala automobile traveling at a very slow rate of speed. The sheriff passed the Chevrolet, turned around and came [741]*741up behind it. The driver of the Chevrolet motioned to the sheriff to come up beside his car. The sheriff pulled up beside the stopped Chevrolet and rolled his window down. When the driver of the Chevrolet saw the sheriff he drove away rapidly. The sheriff testified that he sounded his siren and immediately pursued the Chevrolet. And after he had pursued him for 10 seconds he noticed that the Chevrolet was exceeding the speed limit. The sheriff followed the Chevrolet through traffic and over the streets of Hattiesburg and passed stop signs at an unlawful rate of speed. He used his radio to call a patrolman to his aid. The sheriff and the patrolman finally stopped the driver of the Chevrolet and the patrolman arrested him. The defendant and two companions were carried to jail, and thereafter the officers returned to the Chevrolet and searched it. The officers found certain tools, a gas mask, and money situated at various places in the defendant’s Chevrolet automobile. The tools discovered by the search of defendant’s automobile are the evidence on which the indictment, conviction and sentence are based.
The evidence discloses that at the time the officer began the pursuit of the defendant Berry Smith, Jr., the sheriff had no reason to believe the defendant had committed a crime, and the sheriff did not have a warrant for the arrest of the defendant. The defendant saw the sheriff and fled - “took off in a cloud of smoke”. The sheriff saw the defendant flee, blew his siren, and instantly began pursuit. The proverb: ‘ ‘ The wicked flee when no man pursueth”, was not true on this occasion, at least insofar as the sheriff was concerned, because the sheriff “pursueth”.
The question to be determined in this case is: Was the search of defendant’s automobile a lawful search? If the evidence on which the conviction was based was illegally obtained, then the motion of the attorney for the defendant should have been sustained, the evidence excluded [742]*742from the consideration of the jury, and the defendant released. "What right, if any, did the officer have to search the possessions of the defendant? It will be remembered that Section 23, Mississippi Constitution 1890, guarantees that ‘ ‘ The people shall be secure in their persons, houses, and possessions, from unreasonable search, * * m
Public necessity, public policy and the police power for state law permits the officer to make a search of certain movable property upon “probable cause” without a warrant. Patenotte v. U. S., 266 F. 2d (Miss.), 647; 27 A. L. R. 733; 39 A. L. R. 829; 74 A. L. R. 1400. The Legislature of Mississippi has enacted laws permitting the search of certain vehicles for contraband. See Sections 2615 and 5856, Code 1942 Eec. Our Court, however, has been very careful to point out that an officer does not have the right to make a search of an individual’s possessions because he ‘ ‘ suspects ’ ’ that the possessions contain contraband. Canteberry v. State, 142 Miss. 462, 107 So. 672.
The search of a prisoner, as a part of and incident to an arrest, is in a different legal category from the constitutional prohibition against a search for contraband and evidence, with a search warrant. The search must nevertheless be a “reasonable search” and the arrest must be on “probable cause”, or with a warrant. Patenotte v. U. S., supra. It is the common law duty of the officer after having legally arrested a defendant to search his person, and the surroundings of the prisoner. 4 Am. Jur., Arrest, Sec. 68 p. 47; Harris v. State, 216 Miss. 895, 63 So. 2d 396; Keel v. State, 176 Miss. 867, 169 So. 653. But an arrest may not be used as a pretext to search for evidence. McKnight v. U. S., 183 F. 2d 977; U. S. v. Chodak, 68 F. Supp. 455. Unlike the search made under a search warrant, which describes the property to be searched, the search, as an incident to an arrest, is a limited search. It extends only to the “im[743]*743mediate presence” of the prisoner, the possessions in his “immediate control” and in his “immediate sur roundings”. Drayton v. U. S., 205 F. 2d 35; 47 Am. Jur., Search & Seizures, Sec. 19 p. 515. The purpose of the search is to take charge of weapons, evidence of crime, and tools that may he used as a means of escape. Tolliver v. State, 133 Miss. 789, 98 So. 342; 4 Am. Jur., Arrest, Section 68, p. 47; Bird v. State, 154 Miss. 493, 122 So. 539; Cody v. State, 167 Miss. 150, 148 So. 627.
Our Court has pointed out that our statutes in Mississippi authorizing arrest without a warrant, are declaratory of the common law, and under the common law there must be “probable cause” for arrest. Craft v. State, 202 Miss. 43, 30 So. 2d 414; Martin v. State, 190 Miss. 32, 199 So. 98. The legislature of this state has divided the officer’s duty to make an arrest into two categories: Misdemeanors and felonies. Miss. Code 1942, Section 2470.
The evidence in this case discloses that the officer had no reason to believe that the person driving the Chevrolet Impala had committed a felony when he drove up beside the defendant, therefore the sheriff had no duty to make an arrest of the defendant unless it was sufficiently evident to the sheriff at this time that the driver of the Chevrolet was committing a crime in his presence, or there was some “breach of the peace threatened or attempted in his presence”. See Section 2470, Miss. Code 1942 Bee. The evidence discloses that the defendant was going above 60 miles per hour, about 10 seconds after the officer had begun his pursuit, and that during the chase the defendant ran across street intersections when the traffic lights were red, and travelled at an unreasonable rate of speed on the crowded streets. This Court has held, however, that the search begins when the pursuit begins. Ford v. City of Jackson, 153 Miss. 616, 121 So. 278. And an arrest begins when an officer begins his pursuit for the purpose of making an [744]*744arrest. If an officer does not have the authority to make an arrest at the instant he begins his pursuit for the purpose of making the arrest, the fact that the person the officer is pursuing violates the traffic law in making his escape does not thereby authorize the arrest that began unlawfully, because an officer who attempts an unlawful arrest cannot later arrest a citizen for resisting such trespass. Gause v. State, 203 Miss. 377, 34 So. 2d 729; Contee v. U. S., 215 Fed. 2d 324; Graham v. State, (Fla.), 60 So. 2d 186; 4 Am. Jur., Arrest, Sec. 121, p. 76.
In the case of Butler v. State, 135 Miss. 885, 101 So. 193, an officer saw a colored boy walking down the street. While following along behind the hoy, the officer commanded him to stop.
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Rodgers, J.
Berry Smith, Jr., was indicted and convicted of having in his possession burglary tools, and sentenced to serve a term of five years in the state penitentiary. From the conviction and sentence in the Circuit Court of Forrest County, the appellant has appealed to this Court.
The conviction in this case rests largely upon the testimony of Bob Walker, the sheriff, who testified that he was driving his automobile between 8:30 and 9:00 o ’clock at night, at Palmer’s Crossing, or near the airport gate, in the City of Hattiesburg, Mississippi. He was driving about 15 miles per hour when he met a Chevrolet Impala automobile traveling at a very slow rate of speed. The sheriff passed the Chevrolet, turned around and came [741]*741up behind it. The driver of the Chevrolet motioned to the sheriff to come up beside his car. The sheriff pulled up beside the stopped Chevrolet and rolled his window down. When the driver of the Chevrolet saw the sheriff he drove away rapidly. The sheriff testified that he sounded his siren and immediately pursued the Chevrolet. And after he had pursued him for 10 seconds he noticed that the Chevrolet was exceeding the speed limit. The sheriff followed the Chevrolet through traffic and over the streets of Hattiesburg and passed stop signs at an unlawful rate of speed. He used his radio to call a patrolman to his aid. The sheriff and the patrolman finally stopped the driver of the Chevrolet and the patrolman arrested him. The defendant and two companions were carried to jail, and thereafter the officers returned to the Chevrolet and searched it. The officers found certain tools, a gas mask, and money situated at various places in the defendant’s Chevrolet automobile. The tools discovered by the search of defendant’s automobile are the evidence on which the indictment, conviction and sentence are based.
The evidence discloses that at the time the officer began the pursuit of the defendant Berry Smith, Jr., the sheriff had no reason to believe the defendant had committed a crime, and the sheriff did not have a warrant for the arrest of the defendant. The defendant saw the sheriff and fled - “took off in a cloud of smoke”. The sheriff saw the defendant flee, blew his siren, and instantly began pursuit. The proverb: ‘ ‘ The wicked flee when no man pursueth”, was not true on this occasion, at least insofar as the sheriff was concerned, because the sheriff “pursueth”.
The question to be determined in this case is: Was the search of defendant’s automobile a lawful search? If the evidence on which the conviction was based was illegally obtained, then the motion of the attorney for the defendant should have been sustained, the evidence excluded [742]*742from the consideration of the jury, and the defendant released. "What right, if any, did the officer have to search the possessions of the defendant? It will be remembered that Section 23, Mississippi Constitution 1890, guarantees that ‘ ‘ The people shall be secure in their persons, houses, and possessions, from unreasonable search, * * m
Public necessity, public policy and the police power for state law permits the officer to make a search of certain movable property upon “probable cause” without a warrant. Patenotte v. U. S., 266 F. 2d (Miss.), 647; 27 A. L. R. 733; 39 A. L. R. 829; 74 A. L. R. 1400. The Legislature of Mississippi has enacted laws permitting the search of certain vehicles for contraband. See Sections 2615 and 5856, Code 1942 Eec. Our Court, however, has been very careful to point out that an officer does not have the right to make a search of an individual’s possessions because he ‘ ‘ suspects ’ ’ that the possessions contain contraband. Canteberry v. State, 142 Miss. 462, 107 So. 672.
The search of a prisoner, as a part of and incident to an arrest, is in a different legal category from the constitutional prohibition against a search for contraband and evidence, with a search warrant. The search must nevertheless be a “reasonable search” and the arrest must be on “probable cause”, or with a warrant. Patenotte v. U. S., supra. It is the common law duty of the officer after having legally arrested a defendant to search his person, and the surroundings of the prisoner. 4 Am. Jur., Arrest, Sec. 68 p. 47; Harris v. State, 216 Miss. 895, 63 So. 2d 396; Keel v. State, 176 Miss. 867, 169 So. 653. But an arrest may not be used as a pretext to search for evidence. McKnight v. U. S., 183 F. 2d 977; U. S. v. Chodak, 68 F. Supp. 455. Unlike the search made under a search warrant, which describes the property to be searched, the search, as an incident to an arrest, is a limited search. It extends only to the “im[743]*743mediate presence” of the prisoner, the possessions in his “immediate control” and in his “immediate sur roundings”. Drayton v. U. S., 205 F. 2d 35; 47 Am. Jur., Search & Seizures, Sec. 19 p. 515. The purpose of the search is to take charge of weapons, evidence of crime, and tools that may he used as a means of escape. Tolliver v. State, 133 Miss. 789, 98 So. 342; 4 Am. Jur., Arrest, Section 68, p. 47; Bird v. State, 154 Miss. 493, 122 So. 539; Cody v. State, 167 Miss. 150, 148 So. 627.
Our Court has pointed out that our statutes in Mississippi authorizing arrest without a warrant, are declaratory of the common law, and under the common law there must be “probable cause” for arrest. Craft v. State, 202 Miss. 43, 30 So. 2d 414; Martin v. State, 190 Miss. 32, 199 So. 98. The legislature of this state has divided the officer’s duty to make an arrest into two categories: Misdemeanors and felonies. Miss. Code 1942, Section 2470.
The evidence in this case discloses that the officer had no reason to believe that the person driving the Chevrolet Impala had committed a felony when he drove up beside the defendant, therefore the sheriff had no duty to make an arrest of the defendant unless it was sufficiently evident to the sheriff at this time that the driver of the Chevrolet was committing a crime in his presence, or there was some “breach of the peace threatened or attempted in his presence”. See Section 2470, Miss. Code 1942 Bee. The evidence discloses that the defendant was going above 60 miles per hour, about 10 seconds after the officer had begun his pursuit, and that during the chase the defendant ran across street intersections when the traffic lights were red, and travelled at an unreasonable rate of speed on the crowded streets. This Court has held, however, that the search begins when the pursuit begins. Ford v. City of Jackson, 153 Miss. 616, 121 So. 278. And an arrest begins when an officer begins his pursuit for the purpose of making an [744]*744arrest. If an officer does not have the authority to make an arrest at the instant he begins his pursuit for the purpose of making the arrest, the fact that the person the officer is pursuing violates the traffic law in making his escape does not thereby authorize the arrest that began unlawfully, because an officer who attempts an unlawful arrest cannot later arrest a citizen for resisting such trespass. Gause v. State, 203 Miss. 377, 34 So. 2d 729; Contee v. U. S., 215 Fed. 2d 324; Graham v. State, (Fla.), 60 So. 2d 186; 4 Am. Jur., Arrest, Sec. 121, p. 76.
In the case of Butler v. State, 135 Miss. 885, 101 So. 193, an officer saw a colored boy walking down the street. While following along behind the hoy, the officer commanded him to stop. The hoy began to run, and the officer fired his gun, causing the boy to drop a bag; however, the hoy increased his speed and escaped. The officer searched the hag’ and found it to contain intoxicating liquor. This Court on appeal held that the officer did not have probable cause to arrest the hoy, since he did not know the hoy was committing a crime in his presence, and the search of the hag was therefore illegal.
In the case of Harris v. State, 209 Miss. 183, 46 So. 2d 194, the officers learned that a negro would arrive on the train with a suitcase containing intoxicating liquor. The officers went to the depot, and when the negro saw the officers, he left the suitcase on the train steps, and fled. The officer picked up the suitcase and arrested the defendant, and later opened the suitcase to find it contained intoxicating liquor. The Court held that the arrest and search were illegal since the officer did not have sufficient probable cause to know that a crime was being committed in his presence. See Castillow v. State, 473, 135 So. 205; Jones v. State, 216 Miss. 263, 62 So. 2d 334; Feazell v. State, 217 Miss. 879, 65 So. 2d 267.
Our Court has made it very clear in the case of Lewis v. State, 198 Miss. 767, 23 So. 2d 401, that, where, a sheriff has no warrant for arrest of a defendant and [745]*745the defendant had not committed any crime in the sheriff’s presence, the arrest of the defendant was illegal, and evidence obtained by a search of her person as an incident to the arrest was inadmissible. See also Pettis v. Sate, 209 Miss. 726, 48 So. 2d 355. A search in violation of the rule of “probable canse for arrest” is a violation of a citizen’s fundamental rights. Myers v. State, 158 Miss. 554, 130 So. 740.
In the case at bar, there was no evidence that the defendant was committing a crime, or was attempting to breach the peace, when the sheriff began his pursuit. The sheriff had no duty nor right to arrest the defendant at that time; therefore the search made of the defendant’s automobile was an incident to an illegal arrest, and was an unlawful search.
We feel that we should again call attention to the holding of this Court with reference to the duties of the officers in the cases of D’Aquilla v. Anderson, 153 Miss. 549, 120 So. 434; Parkinson v. State, 145 Miss. 237, 110 So. 513. An officer enforcing the law, should follow the law, and if officers undertaking to enforce the law would conform to the rulings of this Court, better results, less delay, and a great saving of expense would result.
The objection to the evidence obtained by the search of defendant’s automobile, and the motion for a directed verdict should have been sustained.
The case will be reversed, and the defendant discharged.
Reversed and rendered.
McGehee, G.J., and Lee, Kyle, Arrington, and Ethridge, JJ., concur.