(dissenting, with whom Marshall, C.J., joins). In its decision today, the court essentially eliminates the requirement that police secure a warrant to search an automobile that is in a public place where, as here, they have a plain and ample opportunity to do so. Ante at 559. I write separately because I see the plain and ample opportunity principle as critical to preventing the automobile exception from swallowing the rule that warrants are required for searches. Commonwealth v. Garden, 451 Mass. 43, 47 (2008), quoting Commonwealth v. Washington, 449 Mass. 476, 480 (2007) (police search or seizure must be supported by valid warrant unless exigent circumstances make obtaining warrant impracticable).
Police either have exigent circumstances, related to the inher*566ent mobility of the automobile, justifying a warrantless search, Commonwealth v. Motta, 424 Mass. 117, 124 (1997), or they have a situation where, although an automobile is involved, they must get a warrant if there is a plain and ample opportunity to do so. Concerning the plain and ample opportunity issue, Commonwealth v. Sergienko, 399 Mass. 291, 296 (1987), a case that involved the warrantless search of a parked automobile, is instructive. In determining that the Commonwealth failed to demonstrate that the approximately four hours police had to obtain a warrant was insufficient time to do so, the court incorporated the principle, articulated in Commonwealth v. Forde, 367 Mass. 798, 803 (1975) (warrantless search of apartment improper), that, where there is an unreasonable delay in obtaining a warrant, police could not rely on exigent circumstances that subsequently arose to justify a warrantless search. Commonwealth v. Sergienko, supra at 297. The court stated, “Haste does not become necessary in the present sense if the need for it has been brought about by deliberate and unreasonable delay. This would allow the exception to swallow the principle.” Id. at 296, quoting Commonwealth v. Forde, supra at 802. In Commonwealth v. Cast, 407 Mass. 891 (1990), the court reiterated that the opportunity to obtain a warrant to search an automobile must be “plain and ample.” Id. at 904, quoting Commonwealth v. Bongarzone, 390 Mass. 326, 351 (1983). See Commonwealth v. Bakoian, 412 Mass. 295, 304 (1992), quoting Commonwealth v. Bongarzone, supra.
Subsequent to these cases, this court decided Commonwealth v. Motta, supra. There, the court held that art. 14 of the Massachusetts Declaration of Rights does not offer more protection than the Fourth Amendment to the United States Constitution, where an automobile is stopped in a public place with probable cause. Id. at 124. The court stated that no more exigent circumstances are required to justify a warrantless search. Id. Relying on Pennsylvania v. Labron, 518 U.S. 938, 940 (1996), this court stated that the exigency existed because “the inherent mobility of automobiles creates an exigency that they, and the contraband there is probable cause to believe they contain, can quickly be moved away while a warrant is being sought.” Commonwealth v. Motta, supra at 123, quoting Commonwealth v. Cast, supra at *567904. Implicit in this reasoning is an assumption that if there is ample opportunity for a warrant to be sought to search a particular motor vehicle, there is no justification for the police to avoid obtaining a warrant.
This court seems to acknowledge, ante at 554, that its holding is an extension of the holding in the Motta case, which, despite its broad-brush strokes, did not eliminate the plain and ample opportunity principle. Eighteen months later, in Commonwealth v. Agosto, 428 Mass. 31 (1998), this court reiterated that principle, stating that “[i]n holding the vehicle for an indefinite time, the police also had a ‘plain and ample’ opportunity to obtain a warrant.”1 Id. at 34. The court carefully noted that there were no “sufficient reasons for the police not to have secured a warrant” before conducting their search. Id. at 35. Where the underlying exigency theory justifying a warrant-less search does not apply, police may not forgo seeking a warrant when they have plain and ample opportunity to do so, as they clearly did in this case.
In Commonwealth v. Motta, supra at 123, the “inherent mobility” of the automobile, for which no search warrant had previously been obtained, presented as a real problem, fully justifying a claim of exigency. In that case, Brockton police had had one of the defendants, Emilio Serverino, under surveillance as a suspected heroin dealer, and an undercover police officer had made seven drug purchases from Serverino. Id. at 118. In anticipation of arresting Serverino, police obtained five search warrants, three for apartments in the building where Serverino resided and two for two different automobiles. Id. at 118-119. On the day Brockton police planned to arrest him, they learned from Federal drug enforcement agents that Serverino was en route from Lynn to a grocery store in Brockton where the agents previously had arranged to buy a large amount of heroin from him. Id. at 119. Serverino was in a different vehicle from the ones for which search warrants had been obtained. Id. It was in fact an automobile “heretofore unknown to the Brockton police.” Id. As the police drove in the direction of the store, they saw the vehicle that the agents had identified. Id. When they saw that Serverino was the *568driver, the officers followed it for a short distance and then stopped it. Id. Clearly, there was no time to obtain a sixth warrant to search the automobile Serverino was driving at that time. The Motta court did not intimate in any respect that it had been unnecessary for the police to obtain, as they did, the warrants to search two cars they knew Serverino had used to conduct his illegal drug sales. It was his wholly unanticipated use of a third automobile that gave rise to the exigency justifying a warrantless search of that automobile.
Turning to the particulars of this case, unlike the motion judge, I conclude that the police had probable cause to obtain a search warrant to search the defendant’s vehicle at the very latest the afternoon the drug transaction was to take place. There was a plain and ample opportunity to obtain a search warrant and they should have done so. Obtaining the warrant would not, in any way, have affected when they searched the vehicle. Nothing prevented the police from delaying their search until the transaction took place and arresting Joseph Pini at that time.
But, even if I agreed with the motion judge that the “last piece of probable cause” for that specific drug transaction did not fall into place until police officers saw Pini drive by, I nevertheless conclude that there is no need for the court to eviscerate our plain and ample opportunity jurisprudence. As the judge concluded, there was no “practical opportunity” for police to obtain a warrant because no more than forty-five minutes elapsed from the time police saw Pini drive by to when the defendant left work. Thus, the inherent mobility of the defendant’s vehicle created the same exigent situation justifying a warrantless search as existed in the Motta case.
Under the rule the court articulates today, police officers will be on solid ground when they decide, as Sergeant Foley did, that they do not need a search warrant because they simply can rely on the automobile exception. I conclude that the court’s holding allows the automobile exception to swallow the rule that warrants are required for a search, in violation of a defendant’s rights under art. 14.
Accordingly, I respectfully dissent.
At oral argument, the Commonwealth acknowledged that “the plain and ample opportunity analysis still stands.”