J. SKELLY WRIGHT, Circuit Judge
(dissenting).
The principal issue in this case concerns the admissibility of narcotics evidence seized during a search incident to an arrest for violation of a District of Columbia motor vehicle regulation. On the basis of this evidence, appellant was convicted by a jury in the District Court of possession of narcotics.
The events leading up to the search were as follows:1 On April 19, 1968, Officer Richard Jenks of the Metropolitan Police Department stopped a 1965 Cadillac at the intersection of Ninth and U Streets, N. W., for a “routine spot check.” At the time of this stop, Officer Jenks examined not only appellant’s (temporary) operator’s permit and automobile registration card, but also his selective service classification card. Officer Jenks permitted appellant to continue about his business, but only after making notes of the three items. His note-taking alerted him to a discrepancy between the “1938” date of birth listed on the temporary operator’s permit and the “1927” date of birth listed on the selective service classification card. Officer Jenks then went to police traffic records and discovered that the operator’s permit issued to “Willie Robinson, Jr.,” born in 1927, had been revoked, and that a temporary permit had been issued to a “Willie Robinson,” born in 1938. The pictures on the revoked permit and on the application for the temporary permit were of the same person; both were likenesses of the man he had stopped for the routine cheek on April 19.
On April 23, 1968, while on duty, Officer Jenks observed appellant operating the same vehicle. He stopped appellant, asked him for his permit and registration, and, upon being shown the same [1224]*1224permit appellant had exhibited four days earlier, placed appellant under arrest for operating a motor vehicle after revocation of his operator’s permit and for obtaining a permit by misrepresentation.2 According to his testimony, Officer Jenks “advised [appellant] of his rights, and searched him immediately in front of me. I noticed in his left coat pocket— breast pocket of his coat, a wadded up package — cigarette package. I opened it. Inside was [sic] found 14 gelatin capsules.” 3 Appellant was then placed under arrest for possession of narcotics.4
On October 16, 1968, appellant was indicted by the grand jury for possession of narcotic drugs under 26 U.S.C. § 4704 (a) (1964) and for receipt and concealment of narcotic drugs under 21 U.S.C. § 174 (1964). On August 22, 1969, he was found guilty by a jury on both counts as charged in the indictment, and he subsequently filed the appeal which is now before us.
I would hold the search of Willie Robinson to be unconstitutional on the basis of the fundamental Fourth Amendment principle which has been given renewed emphasis in the housing inspection 5 and stop-and-frisk 6 cases: a search will comply with the Fourth Amendment’s protective requirements only if its scope is no broader than necessary to accomplish legitimate governmental objectives. This principle is stated most clearly in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court upheld an on-the-street detention and search for weapons of three suspects. The Court found that the police officer in Terry had “adequate constitutional ground,” but not probable cause, to believe that the men he detained and searched were going to commit a [1225]*1225crime. In its opinion the Court stressed that the Fourth Amendment governs all intrusions by agents of the public upon personal security, 892 U.S. at 18 n. 15, 88 S.Ct. at 1878, and that the manner in which the search, and seizure are conducted is as much the test of their reasonableness as whether they were warranted at all. Id. at 28, 88 S.Ct. at 1883. Citing a number of earlier cases, many of which were initiated upon probable cause, the Court in Terry stated that “[t]his Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope,” and that “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id. at 17-19, 88 S.Ct. at 1878.
Ordinarily, a warrant must be obtained by a police officer before he may make a search.7 Searches of both person and place incident to lawful arrest, however, have traditionally been exceptions to this rule and have been held constitutional even though they have been made without prior approval by a neutral magistrate. Because a warrant will not be available to insure that arrest-based searches are reasonable both at their inception and in their execution, courts must review the constitutionality of such searches with special care. See, e. g., United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Schmerber v. California, 384 U.S. 757, 766-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
It was just this kind of extra-careful review which the Supreme Court recently undertook in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, the Court used its scope limitation principle to measure the constitutionality of a warrantless, far-ranging search of a house incident to a lawful arrest for larceny. Terry was specifically referred to, and the Chimel search, in which police discovered coins appellant was accused of stealing, was found to be unconstitutional because it was not “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” 395 [1226]*1226U.S. at 762, 89 S.Ct. at 2039. Chimel holds that incident to a lawful arrest for a crime such as theft, which requires instruments and bears fruits, there is ample justification for a warrantless search of “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. at 2040.
In Chimel the Supreme Court had oc-caion to analyze and define the proper scope limitations for search of a house incident to a lawful arrest. Here the limits for arrest-based searches of the person are at issue. Although I am reassured to find that my position is consistent with and supported by the rationale and the holding in Chimel, I make no claim for its retroactive applicability to this case. A year before Chimel the Supreme Court had made it absolutely clear that the underlying rationale of Terry was a restatement of, rather than a departure from, existing case law, and that, although the Terry
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J. SKELLY WRIGHT, Circuit Judge
(dissenting).
The principal issue in this case concerns the admissibility of narcotics evidence seized during a search incident to an arrest for violation of a District of Columbia motor vehicle regulation. On the basis of this evidence, appellant was convicted by a jury in the District Court of possession of narcotics.
The events leading up to the search were as follows:1 On April 19, 1968, Officer Richard Jenks of the Metropolitan Police Department stopped a 1965 Cadillac at the intersection of Ninth and U Streets, N. W., for a “routine spot check.” At the time of this stop, Officer Jenks examined not only appellant’s (temporary) operator’s permit and automobile registration card, but also his selective service classification card. Officer Jenks permitted appellant to continue about his business, but only after making notes of the three items. His note-taking alerted him to a discrepancy between the “1938” date of birth listed on the temporary operator’s permit and the “1927” date of birth listed on the selective service classification card. Officer Jenks then went to police traffic records and discovered that the operator’s permit issued to “Willie Robinson, Jr.,” born in 1927, had been revoked, and that a temporary permit had been issued to a “Willie Robinson,” born in 1938. The pictures on the revoked permit and on the application for the temporary permit were of the same person; both were likenesses of the man he had stopped for the routine cheek on April 19.
On April 23, 1968, while on duty, Officer Jenks observed appellant operating the same vehicle. He stopped appellant, asked him for his permit and registration, and, upon being shown the same [1224]*1224permit appellant had exhibited four days earlier, placed appellant under arrest for operating a motor vehicle after revocation of his operator’s permit and for obtaining a permit by misrepresentation.2 According to his testimony, Officer Jenks “advised [appellant] of his rights, and searched him immediately in front of me. I noticed in his left coat pocket— breast pocket of his coat, a wadded up package — cigarette package. I opened it. Inside was [sic] found 14 gelatin capsules.” 3 Appellant was then placed under arrest for possession of narcotics.4
On October 16, 1968, appellant was indicted by the grand jury for possession of narcotic drugs under 26 U.S.C. § 4704 (a) (1964) and for receipt and concealment of narcotic drugs under 21 U.S.C. § 174 (1964). On August 22, 1969, he was found guilty by a jury on both counts as charged in the indictment, and he subsequently filed the appeal which is now before us.
I would hold the search of Willie Robinson to be unconstitutional on the basis of the fundamental Fourth Amendment principle which has been given renewed emphasis in the housing inspection 5 and stop-and-frisk 6 cases: a search will comply with the Fourth Amendment’s protective requirements only if its scope is no broader than necessary to accomplish legitimate governmental objectives. This principle is stated most clearly in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court upheld an on-the-street detention and search for weapons of three suspects. The Court found that the police officer in Terry had “adequate constitutional ground,” but not probable cause, to believe that the men he detained and searched were going to commit a [1225]*1225crime. In its opinion the Court stressed that the Fourth Amendment governs all intrusions by agents of the public upon personal security, 892 U.S. at 18 n. 15, 88 S.Ct. at 1878, and that the manner in which the search, and seizure are conducted is as much the test of their reasonableness as whether they were warranted at all. Id. at 28, 88 S.Ct. at 1883. Citing a number of earlier cases, many of which were initiated upon probable cause, the Court in Terry stated that “[t]his Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope,” and that “[t]he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id. at 17-19, 88 S.Ct. at 1878.
Ordinarily, a warrant must be obtained by a police officer before he may make a search.7 Searches of both person and place incident to lawful arrest, however, have traditionally been exceptions to this rule and have been held constitutional even though they have been made without prior approval by a neutral magistrate. Because a warrant will not be available to insure that arrest-based searches are reasonable both at their inception and in their execution, courts must review the constitutionality of such searches with special care. See, e. g., United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Schmerber v. California, 384 U.S. 757, 766-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
It was just this kind of extra-careful review which the Supreme Court recently undertook in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, the Court used its scope limitation principle to measure the constitutionality of a warrantless, far-ranging search of a house incident to a lawful arrest for larceny. Terry was specifically referred to, and the Chimel search, in which police discovered coins appellant was accused of stealing, was found to be unconstitutional because it was not “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” 395 [1226]*1226U.S. at 762, 89 S.Ct. at 2039. Chimel holds that incident to a lawful arrest for a crime such as theft, which requires instruments and bears fruits, there is ample justification for a warrantless search of “the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Id. at 763, 89 S.Ct. at 2040.
In Chimel the Supreme Court had oc-caion to analyze and define the proper scope limitations for search of a house incident to a lawful arrest. Here the limits for arrest-based searches of the person are at issue. Although I am reassured to find that my position is consistent with and supported by the rationale and the holding in Chimel, I make no claim for its retroactive applicability to this case. A year before Chimel the Supreme Court had made it absolutely clear that the underlying rationale of Terry was a restatement of, rather than a departure from, existing case law, and that, although the Terry ease itself involved a search upon less than probable cause, the scope limitation principle was to apply to all searches no matter what the evidentiary basis for their initiation. 392 U.S. at 17-19, 88 S.Ct. 1868.
What then are the legitimate objectives of an arrest-based search of the person? What is it that renders such searches permissible at their inception, and to which the scope of such searches must be tied, if their reasonableness is to be maintained? Though they receive slightly different formulation in various cases, the legitimate objectives of war-rantless searches of the person incident to arrest seem to be (1) seizure of fruits, instrumentalities and other evidence of the crime for which the arrest is made, in order to prevent its destruction or concealment; and (2) removal of any weapons that the- arrestee might seek to use to resist arrest or effect his escape.8 Does either of these legitimate objectives, under the specific circumstances of this case, justify a search such as the [1227]*1227one which was actually made and which is now challenged by appellant as unconstitutionally intrusive?
II
Since fruits, instruments or other evidence of crime concealed on the person of the arrestee may be easily disposed of or destroyed, the arresting officer will often be justified in searching for such evidence without delay. But the scope limitation principle requires that when police search a person incident to arrest, the search must be directed to finding evidence which the arresting officer has probable cause to believe will be found on the person, and that the search be no more intrusive than necessary to recover such evidence. For some crimes — and more particularly for most traffic crimes 9 — no search of the person for evidence may be allowed at all because no evidence exists to be found. Admittedly, appellant’s crime in this case —driving after his operator’s permit had been revoked — is a relatively serious one on the continuum of violations set forth in the District of Columbia Motor Vehicles Code. Nonetheless, upon stopping Willie Robinson for the second time and upon receiving for the second time Robinson’s fraudulently obtained temporary operator’s permit, Officer Jenks had secured the only evidence of the crime for which the arrest was made which he could possibly have had probable cause to believe was in the arrestee’s possession. No further arrest-based search for evidence was therefore reasonable or constitutional.
There is, of course, a second, very important justification for searches incident to arrest — the interest of government in the safety of its police officers. But in the case of Willie Robinson, arrested for a traffic code violation, this legitimate goal could have been accomplished by a protective frisk, and no greater intrusion upon individual privacy is constitutionally permissible. In Terry v. Ohio, supra, the Supreme Court approved a pat-down or “frisk” of the appellant’s outer clothing for weapons, with a further intrusion only after finding a weapon, precisely because this intrusion was reasonable at its inception and was confined “strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons.” 392 U.S. at 30, 88 S.Ct. at 1884. It has been suggested that Terry is distinguishable from this case because the search for weapons in Terry was based only upon “reasonable suspicion” whereas here appellant was arrested on probable cause. But in focusing on the different quanta of evidence required to justify different degrees of search of the person, one can easily lose sight of the even more telling distinction between the evi-dentiary purpose and the protective purpose of searches. It is this latter distinction upon which our case hinges.
Because the arrest-based searches reviewed and validated by the courts have usually had both evidentiary and protective functions, the casual reader may be given the false impression that these cases stand for the proposition that a lawful arrest will always support a full search of the person. Obviously, when the arrest is made for a crime for which evidence exists, a warrantless intrusion into the pockets of the arrestee to discover such evidence is reasonable under the “search incident” exception. The officer may also use this reasonable intrusion to look simultaneously for weapons. But in a fact situation such as ours, where the search can have no evi-dentiary function, a more careful analysis of proper scope limitations is called for. When the crime is one for which no evidentiary search can be justified, then with regard to the scope of the intrusion [1228]*1228on personal privacy which the Constitution will allow for the accomplishment of the single legitimate goal of protecting the arresting officer it is of no moment whether the protective search for weapons is incident to an “arrest” based on probable cause or incident to a “stop” based on reasonable suspicion.
Ill
That the scope limitation principle is intended by the Supreme Court to apply to arrest-based searches is expressly established by the last of the cases in the Terry-Sibron-Peters trilogy. In Peters v. New York, which is consolidated with Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), Officer Lasky of the New York City Police Department was off duty at his apartment when he heard a noise at the door. Looking through the peephole into the hall, he saw two men he did not believe to be fellow tenants tiptoeing out of the alcove toward the stairway. Officer Lasky called police headquarters, put on civilian clothes, and armed himself with his service revolver. Believing he had happened upon the two men in the course of an attempted burglary, Officer Lasky opened his door, entered the hallway, and slammed the door loudly behind him. When the door slammed, the two men fled down the stairs, and Officer Lasky gave chase. When he caught up with Peters on the stairs and questioned him, Peters explained his presence in the building to Officer Lasky by saying he was visiting a girl friend whose name he chivalrously declined to reveal on the ground that she was a married woman. Officer Lasky then patted Peters down for weapons and discovered a hard object in his pocket. The object did not feel like a gun, but he thought it might be a knife. Officer Lasky removed this object from Peters’ pocket and found it was an opaque envelope containing burglar’s tools.
Given this fact situation, the Supreme Court held that Officer Lasky legally arrested Peters when he collared him on the stairway and curtailed his freedom of movement. This arrest was found to be valid because made on the basis of probable cause to believe Peters was engaged in criminal activity. At this point, according to the Supreme Court,
“[Officer Lasky] had the authority to search Peters, and the incident search was obviously justified ‘by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.’ * * * Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects. * * * ”
392 U.S. at 67, 88 S.Ct. at 1905. (Emphasis added.)
In Peters, then, the Supreme Court examines very closely a particular arrest-based search having both evidentiary and protective functions and finds that this search — which took the form of a frisk followed by a further intrusion into the arrestee’s pockets only after an object possibly a weapon had been felt — was not too “unrestrained and thoroughgoing.” Surely when the legitimate goals of the search are more limited, as in this case, to a search with only a protective goal, we should make the same kind of careful inquiry as to the scope of the search as was made by the Supreme Court in Peters, i. e., whether the search was reasonably limited in scope to its legitimate purposes.
A rereading of Terry and Sibron, in conjunction with Peters, makes clear what the proper limits for a protective search should be. In Sibron, a direct intrusion into the pockets of a narcotics suspect was held by the Supreme Court to have been unreasonable at its inception because the mere association of the suspect with other known narcotics offenders was held not to have given the investigating officer justification for any search whatever. But the Sibron Court went further and held that, assuming arguendo the arresting officer had reason to suspect Sibron was armed, the actual search — a direct intrusion into the [1229]*1229suspect’s pockets rather than frisk— would still have been constitutionally invalid because not “reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer * * * ” 392 U.S. at 65, 88 S.Ct. at 1904.
Terry, Sibron and Peters, when read together, stand for the proposition that, whether the detention is based upon probable cause or not, if the crime is one for which no evidence exists, so that the sole legitimate objective of the search is to protect the arresting officer, then any intrusion greater than a frisk will be unconstitutional. A comparison of factual settings leaves no doubt that the likelihood of harm to the arresting officer was far greater in Terry than in the case which is now before us.10 A properly conducted frisk here would have provided appropriate protection for the arresting officer.11 The greater intru[1230]*1230sion which actually occurred was therefore too “unrestrained and thoroughgoing” to meet the protective requirements of the Fourth Amendment.12
My position is completely consistent with the many federal cases — some of them our own — in which search of an automobile subsequent to an arrest for a traffic violation has been validated, not as incident to the traffic arrest, but as reasonably necessary because of the presence of evidence of another crime. Writing for a unanimous panel in Brown v. United States, 125 U.S.App.D.C. 43, 365 F.2d 976 (1966), Judge (now Chief Justice) Burger upheld a warrantless search of ■ an automobile subsequent to an arrest óf the driver for driving without a tag light and with an expired inspection sticker. The court, however, was careful not to justify the search as an incident to the traffic arrest. After reviewing the evidence which became available to the officers by radio during the arrest but before the search, the court stated:
“The questions presented on these facts are whether the police had probable cause for arresting Appellant on the robbery charge, whether they did in fact arrest him, and whether the search was therefore permissible as one incident to arrest.”
125 U.S.App.D.C. at 45, 365 F.2d at 978. Judge Burger then grounds his opinion on the finding that, while one police officer was questioning the driver as to his traffic violations, a second officer heard over the squad car radio that a robbery had been committed by a person answering the defendant’s general description and driving an automobile similar to the one they had just stopped. The court held that these circumstances gave the officers probable cause to arrest the driver for robbery, and it was then, of course, completely reasonable to search the automobile incident to this robbery arrest.
Other federal courts 13 which have considered the “pure” traffic arrest problem specifically hold that, absent “special cir[1231]*1231cumstances” not present in this case,14 a search of the person or automobile not related to the nature of the offense for which the arrest is made is impermissible.15 See, e. g., United States v. One 1963 Cadillac Hardtop, E.D.Wis., 224 F. [1232]*1232Supp. 210, 212 (1963): “[A] minor traffic violation will not generally justify a search of the vehicle and its passengers.” See also United States v. Tate, D.Del., 209 F.Supp. 762 (1962); United States ex rel. Krogness v. Gladden, D. Or., 242 F.Supp. 499 (1965). Noting that the only legitimate objective of most searches incident to arrests for traffic offenses will be the protection of the arresting officer, one lower federal court recently found that “[t]o permit all searches incidental to an arrest to be justified on the theory that the officer is searching for weapons would be to allow wholesale fishing expeditions whenever a legal arrest is made.” Grund-strom v. Beto, N.D.Tex., 273 F.Supp. 912, 916 (1967).16
Perhaps the most forceful statement of the principle applicable here comes from a recent decision of the United States Court of Appeals for the Tenth Circuit. In United States v. Humphrey, 409 F.2d 1055, 1057-1058 (1969), then Chief Judge Murrah17 wrote for a unanimous panel:
“By its own terms the Fourth Amendment protects people ‘against unreasonable searches and seizures.’ Thus not all searches run afoul of the constitutional sanction but only those unreasonable in origin or scope. While the evolution of this constitutional standard of reasonableness has varied with our sense of justice, it is certain today that warrantless searches on probable cause are reasonable only when it is unfeasible to obtain a search warrant on proper affidavit * * *. Unless, of course, it is reasonably ‘incident’ to a legal arrest * * *, or can be said to be a mere ‘stop and frisk’ as in Terry v. Ohio, supra and Sibron v. New York, * * *. Notably, these exceptions are not based on anything inherent in the exception itself but result from the inductive case [1233]*1233by case application of the constitutional standard of reasonableness. Thus these exceptions are traditionally justified by the need to protect the arresting officers, prevent escape, collect instrumentalities or fruits of the crime (and now evidence, Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)), and prevent delay which might otherwise permit the criminal to escape or commit his crime. * * * From this rationale it is clear that the scope of a search contemporaneous with a legal arrest must have a reasonable relationship to the protection of the officer or the crime for which the accused was arrested. As stated in Terry v. Ohio, supra 392 U.S. at p. 19, 88 S.Ct. at 1878, ‘[T]he scope of the search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible’, i. e. the detention or arrest. * * * If not, the search is unreasonable and violates Fourth Amendment protected interests. * * * We are in complc agreement with the prevailing federa' and state authority which condemns the search of persons and automobiles following routine traffic violations. * ■* * ” 18
(Citations omitted.)
My conclusion as to the meaning of the constitutional safeguard, and its implementation set forth in case of arrest for violations of the traffic code, is supported, as I have shown, by the analysis of the Supreme Court opinions and the decisions of other federal courts. It is also appropriate to note that similar analyses and conclusions have been reached by scholars who have given careful study to the issues.19 Wayne LaFave, author of the American Bar Foundation volume Arrest (1965), whose long-term study of arrest problems led to his being selected [1234]*1234by the American Bar Association as reporter to the Committee on the Criminal Trial, noted over 10 years ago that “[a] search of the vehicle and driver incident to an arrest for a traffic violation is a police practice apparently not uncommon throughout the country,” and urged that the courts undertake an exacting and detailed consideration of the problem of “defining the proper scope” of such searches. Note, Search and Seizure — Search Incident to Arrest for Traffic Violation, 1959 Wis.L.Rev. 347, 358. Very recently, a writer in the Columbia Law Review found:
“ * * * The historical development of incidental personal searches furnishes no support for the validation of searches based solely on the fact of lawful arrest. This point had been overlooked by the early courts, most likely because the fact situations of these early cases were such that under either a categorical or examination-of-the-facts approach, an incidental personal search could be justified. Later courts’ failure to analyze the historical underpinnings of the rule led to a hardening of the categorical approach which only recently has begun to be questioned.
“The need for this reexamination is clear. * * * ” Note, Searches of the Person Incident to Lawful Arrest, 69 Colum.L.Rev. 867, 869 (1969). (Footnotes omitted.) 20
This Columbia note and a 1969 note in the Yale Law Journal refer to searches incident to traffic arrests as being especially abusive — because the offense is often very trifling, and the search very full-blown — but both also urge that the rule I have outlined should be applied more broadly to searches incident to arrest for all crimes for which no further evidence can exist.21
Not only was the search of Willie Robinson bad in theory; the practical effect of a rule permitting warrantless “full” searches incident to most traffic arrests (or for that matter, incident to arrests for status crimes) is fearsome to imagine. As Judge Wisdom has written, the danger is “that the lowly offense of a traffic violation — of which all of us have been guilty at one time or another — may be established as the basis for searches circumventing the rights guaranteed by the Fourth Amendment.” Amador-Gon-zalez v. United States, 5 Cir., 391 F.2d 308, 318 (1968). The rule that a full search without a warrant will be supported by any lawful arrest gives dangerously broad discretion to the police officers who must apply it. Logically and consistently applied, such a rule endangers the rights of the physician hurrying [1235]*1235to a night call who runs a stop sign, or of the young woman with her bags packed and on her way back to college, or of the corporate executive arrested for criminal conspiracy under the antitrust laws, or of the civil servant accused of tax fraud, or of any one of us a police officer — for whatever secret motive or for no reason at all — wishes to search without the hindrance of normal Fourth Amendment protections.
IV
Neither the dissenting opinion at the division level nor the majority of the court en banc challenges the principles of law recognized in this opinion. Instead they argue that the facts surrounding the search of Willie Robinson were insufficiently developed in the District Court to permit a reliable judgment on the legality of the seizure of the narcotics. Judge Wilkey’s dissent to the panel opinion suggested that the narcotics may have been in plain view and, consequently, were legally seized without a search. Thus the crucial factual issue in this case in its present posture is whether the narcotics taken from appellant by the police were in plain view or were discovered in a search incident to his arrest. Noting Judge Wilkey’s plain view suggestion, the Government, in its petition for rehearing en banc, commendably and candidly foreclosed further speculation on this score. Its petition, at page 4 n. 2, states:
“ * * * Our consultation disclosed that Officer Jenks did in fact conduct a search of appellant by examining the left breast pocket of his outer coat and did not limit himself to a mere pat-down. Since any hearing on remand would of course have disclosed this fact, appellee felt it to be in furtherance of the expeditious and efficient disposition of the case to concede the point for the purpose of arguing this appeal. Specifically, we concluded that it would not be appropriate even to suggest that the package containing the narcotics might have come within the officer’s plain view when we knew the facts to be otherwise.”
If the Government has plain view evidence, I doubt seriously it would concede that Officer Jenks did in fact conduct a search of appellant. In the interest of efficient and effective administration of justice, I submit, we should accept the Government’s concession and hold, for the reasons stated in this opinion, that the seizure of the narcotics from appellant resulted from an illegal search requiring reversal of his conviction.
I respectfully dissent.