dissenting:
Appellant and a companion were observed by a Special Police officer at a shirt display in a Woodward and Lothrop Department Store. The officer recognized both juveniles and saw appellant, who was carrying a briefcase, pick up a shirt, bend down and stand up without it in his hands. She followed the youths into an elevator, at which point appellant handed the briefcase to his companion. When they left the elevator, appellant and his companion split, with appellant darting toward an escalator. The officer asked another security officer to arrest the companion with the briefcase and take him to the security office. She then pursued appellant. He was caught and later also brought to the security office. By that time, the briefcase had been opened there by an officer and the shirt was recovered.
The principal contentions appear to be that appellant had a legitimate expectation of privacy in respect to the briefcase which he had handed to his companion because it belonged to him;1 and that the briefcase was searched in violation of his Fourth Amendment rights.
It strikes me as a routine search incident to an arrest for which there was probable cause.2 Though the majority opinion quotes the trial testimony for the defense witnesses at some length, the trial judge expressly discredited their testimony, as the majority opinion itself acknowledges.
The Supreme Court has stated:
[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area “within his immediate control”— construing that phrase to mean the area *906from within which he might gain possession of a weapon or destructible evidence. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969).
In a recent case discussing the law on searches incident to arrest, the Seventh Circuit stated:
[T]he standard emergent from a review of the seminal cases .defining the scope of warrantless searches incident to arrest is that, to be found reasonable and therefore exempt from the warrant requirement, the search must be conducted substantially contemporaneous with the arrest and be spatially limited to the person of the arrestee, the possessions immediately associated with the person of the arrestee, and the area within the arres-tee’s immediate control. United States v. Garcia, 605 F.2d 349, 353 (7th Cir. 1979) (luggage carried by arrestee).
I take it to be without' question that, assuming jewelry rather than a shirt had been taken, an arresting officer could have searched upon arrest a wallet or handbag of an arrestee under these circumstances without a warrant. I see no sensible reason why the briefcase being carried here by the companion was not susceptible to a war-rantless search as well.3 It was conducted in the store security office, away from the view of customers,4 and on this record, I view the search as having been “substantially contemporaneous with the arrest.” Id. I would affirm.
Before NEWMAN,*, Chief Judge, KELLY, KERN, GALLAGHER,* NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges, and PAIR,* Associate Judge, Retired.ORDER
PER CURIAM.
On consideration of the petition of appel-lee District of Columbia for rehearing or, in the alternative, for rehearing en banc, the memorandum of amicus curiae, and appellant’s response to the aforesaid petition, it is
ORDERED by the merits division that appellee’s petition for rehearing is denied; and it appearing that a majority of the judges of this Coixrt has voted to deny appellee’s petition for rehearing en banc, it is
FURTHER ORDERED that appellee’s en banc petition is denied.
GALLAGHER, Associate Judge, would grant appellee’s petition for rehearing.
GALLAGHER, NEBEKER, and HARRIS, Associate Judges, would grant appel-lee’s petition for rehearing en banc (see attached separate statement).
Statement of NEBEKER, Associate Judge, with whom GALLAGHER and HARRIS, Associate Judges, concur, as to why he voted to grant rehearing en banc.
The holding of the majority in this case, which in my view is incorrect, extends Unit*907ed States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), from the footlocker possessed by federal agents in the federal building in Boston to the briefcase seized from the hands of appellant’s companion after appellant fled. The practical result of this holding will be that those engaged in deterring and apprehending shoplifters will follow the alternative of searching the suspects’ packages in public and immediately upon arrest. (The majority opinion admits such a search is permissible. See at 902.) The only other alternative would be to hold the suspect while the special policeman seeks out a law enforcement officer (who is, to the exclusion of special police officers, authorized to apply for search warrants under D.C.Code 1973, § 23-521) and to await its issuance.1 In instances where a warrant is applied for it is inescapable that the suspect would have to be detained for a long period of time. Either alternative is indeed an unfortunate result of the majority holding when one realizes that there are instances in which a suspect is released immediately when it is found that he is not in possession of stolen merchandise.
It also seems to me that Judge Gallagher’s position, in dissent, is correct for the additional reason that the special police officer in this case had probable cause (the offense having been committed in his presence) to arrest appellant’s companion for receiving stolen property. Such an arrest without a warrant is permissible under D.C. Code 1973, § 23-581. I do not understand the majority to hold that the right to search the briefcase for the stolen property, which appellant’s companion had received in the presence of the officer, is in any way subordinated by appellant’s Fourth Amendment interest in the briefcase he gave to his companion before he fled. It is because I deem this holding of the majority to be important to the administration of justice, as well as erroneous, that I would rehear this case en banc.
The majority opinion is flawed for another basic reason. It relies on testimony given at trial — after the motion to suppress had been denied. The court, like the trial court, is bound by the record of the pretrial hearing. To consider trial testimony, on the suppression issue violates D.C.Code 1973, § 23-104(a)(2) which requires:
A motion for return of seized property or to suppress evidence shall be made before trial unless opportunity therefor did not exist or the defendant was not aware of the grounds for the motion.
Consistent with this provision we held in Jenkins v. United States, D.C.App., 284 A.2d 460 (1971), that once a pretrial motion to suppress is decided it becomes law of the case.2 Therefore, neither the trial court nor this court is free to reconsider denial of the motion on facts not presented at the motion hearing. Moreover, I am at a loss to understand how reliance could be placed on such testimony when it was expressly disbelieved by the trial judge.
The majority’s holding is not required by Chadwick, supra. It is not warranted by reason and it cannot be supported by what is in effect discredited extra-record testimony.
I emphasize that the foregoing views deal with the only holding of the court in this case. The discussion in the majority opinion respecting appellant’s legitimate expectation of privacy as to the briefcase is nothing but gratuitous comment for it resolves no issue in this case. Judge Gallagher treated that discussion as such for he ignored it in his dissent.
Unlike Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1977), where the prosecutor challenged standing to complain of the search, everyone in this case — the prosecutor, the appellant, the trial judge, and counsel in their briefs here — have assumed that appellant had the requisite in*908terest to challenge the search. Rakas, supra at 130 n. 1, 99 S.Ct. at 423 n. 1. I therefore, do not find in this case any need to address that abstract question. The comments of the majority respecting their understanding of the law as a result of Rakas do not constitute a holding of the court. Accordingly, I do not deem the petition for rehearing en banc to present any question for consideration by the full court on that subject.
. No issue of abandonment was raised in the trial court.
. The trial court expressly found probable cause for the arrests.
. I view the facts in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (locked footlocker in trunk of parked automobile; search remote in time and place from arrest) and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) (unlocked suitcase in trunk of taxi stopped and searched for contraband) as being distinguishable in principle. As a matter of fact, interesting enough, in the more recent opinion in Sanders the court expressly did not reach the question more nearly involved here, saying:
Nor do we consider the constitutionality of searches of luggage incident to the arrest of its possessor. See, e. g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 457, 38 L.Ed.2d 427 (1973). The State has not argued that respondent’s suitcase was searched incident to his arrest, and it appears that the bag was not within his “immediate control” at the time of the search. 99 S.Ct. at 2593, n. 11.
United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (search of cigarette package in coat pocket at time of arrest) is closer to the situation here since the arrestee had immediate access to the briefcase.
. In my view, it is in the public interest in a department store to proceed immediately to the available security office with a person arrested for shoplifting and there conduct any search or interrogation warranted under the circumstances, rather than doing so in the store proper so as to avoid the attendant risks to the shoppers and needless confusion.
. It appears that special police officers have the same power of arrest in instances where a warrant is not required. See D.C.Code 1973, § 23-582. Section 23-521 would seem to preclude special police applications for warrants.
. Accord, United States v. Allen, D.C.App., 337 A.2d 512, 513 (1975); Smith v. United States, D.C.App., 295 A.2d 64, 65 n. 2 (1972).