dissenting. The mandate of the Fourth Amendment is that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated * * *. ” In order to ensure that security, the Amendment provides that searches and seizures be upon warrant and probable cause. Where a search is made without a warrant, it is per se unreasonable except for a few familiar exceptions. Coolidge v. New Hampshire (1971), 403 U. S. 443; Katz v. United States (1947), 389 U. S. 347. On the facts of this case, I can find no basis for finding that the warrantless search and seizure herein comes within any of these exceptions, and I accordingly dissent.
Searches conducted outside the judicial process, without the prior approval of a judge or magistrate, are per se unreasonable under the Fourth Amendment, for to grant the police authority to decide whether there is adequate evidence to justify their search without a warrant “would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers.” John*328son v. United States (1948), 333 U. S. 10, 14. A search without warrant may be reasonable where “the exigencies of the situation made that course imperative” (McDonald v. United States [1948], 335 U. S. 451, 456), if the police activity is predicated not only upon probable cause, but also upon a need for immediate action to prevent personal injuries, escape of persons accused of committing a crime, or destruction, removal or concealment of evidence. Warden v. Hayden (1967), 387 U. S. 294; Ker v. California (1963), 374 U. S. 23. But it is simply not true that any exigent circumstances existed which would justify the action of the police in this case. The police did not arrive to open the suitcase until the day after they were called, and they certainly could have applied for a warrant before the search—or, indeed, they could have taken the suitcase itself to a magistrate. To allow such a search as was conducted here needlessly sacrifices the public interest in the privacy and security of an individual’s possessions.
The majority suggest, at least by implication, that the suitcase was suspicious by reason of the sounds emanating from it, its weight, the demeanor of the person who checked it, and the length of time it was checked. Yet not one of these facts, and no combination of them, provide any reasonable basis for a warrantless search claimed to be for the purpose of protecting the public safety. It is claimed that the bag felt unusually heavy. Is that any indication that it might have held a bomb—or narcotics, or books, or any one of the other objects one might imagine? The suitcase made a “rustling” sound when moved. If there is some sinister implication from that sound it escapes me; certainly, it seems most unlikely that explosives “rustle.” The man who checked the bag was “tense and nervous.” Does that suggest that the bag contained a bomb ? The bag was left for a few days longer than expected. Wouldn’t this lapse of time indicate, if anything at all, that the contents. were probably innocent? None of these “suspicions” reflects anything other than certain differences between this bag and the millions of others that pass through the hands of common carriers every year. There were no suspicious *329sounds, no odors, no leakages, no threats or past incidents suggesting any danger to the public safety. In particular, this is not a case in which any bomb threat was made or, in which there was any other reasonable basis for suspecting an imminent danger to the public safety. The circumstances surrounding the actual opening of the bag also dispel any contention that its potential contents engendered fear of imminent danger in either the railroad employees or the police; the opening occurred in a small room and was attended by five people who crowded around the bag. By the majority’s decision, it is difficult to avoid the conclusion that the police are now at liberty to open anyone’s baggage upon the request of any private citizen, without the need to justify the search before an independent magistrate.
The majority concludes that the restrictions of the Fourth Amendment are not applicable to these appeals because the train station search was a private search. Although I disagree with that conclusion, I agree with the majority that the standards developed by the United States Supreme Court for determining, under the now defunct “silver platter” doctrine, the degree of federal participation which mandates invocation of the Fourth Amendment to an otherwise state search are analogous to, and helpful in, determining that degree of police participation which is sufficient to require that a search which is otherwise private comply with constitutional rules. However, I believe that the majority, while purporting to apply the standards announced in Byars v. United States (1927), 273 U. S. 28, does nothing more than cite that case. To me, Byars is the only reliable United States Supreme Court decision in this area.4
*330The material facts in Byars are relatively simple. A state search warrant was issued by an Iowa judge to ‘ ‘ ‘ any police officer of Des Moines, Polk County, Iowa’ ” (273 U. S., at 29); the warrant authorized the search of the residence of A. J Byars for intoxicating liquor, instruments and materials. For reasons not germane to this discussion, the court stated that the warrant was defective under Fourth Amendment standards. The warrant was given to a Mr. Densmore, the local police officer in charge of the night liquor bureau. He and three other local officers proceeded to execute the warrant. However, before leaving the police station to conduct the search, Densmore asked a federal prohibition agent to accompany the search party; the agent assented. At the residence, the federal agent searched the kitchen and found counterfeit liquor stamps. A local officer found and immediately turned over to the federal agent similar stamps. The stamps were used to convict Byars of a federal crime.
In a unanimous opinion, the court, at pages 32 and 33, held that the search and seizure was subject to the Fourth Amendment :
“While it is true that the mere participation in a state search of one who is a federal officer does not render it a federal undertaking, the court must be vigilant to scrutinize the attendant facts with an eye to detect and a hand to prevent violations of the Constitution by circuitous and indirect methods. Constitutional provisions for the security of person and property are to be liberally construed, and ‘it is the duty of courts to be watchful for the con*331stitutional rights of the citizen, and against any stealthy encroachments thereon.’ Boyd v. United States, 116 U. S. 616, 635; Gouled v. United States, supra, 304. [255 U. S. 298.]
“The attendant facts here reasonably suggest that the federal prohibition agent was not invited to join the state squad as a private person might have been, but toas ashed to participate and did participate as a federal enforcement officer, upon the chance, which ivas subsequently realized, that something would be disclosed of official interest to him as such agent. The house to be searched contained only four rooms—a dining room, a kitchen and two bedrooms. We are not prepared to accept the view that the local officer thought a force of four men would be insufficient to search these limited premises; and it is significant, in that connection, that he did not ask his superior officer for additional help, but inquired particularly for Adams, who, he knew, was the federal agent. The stamps found were not within the purview of the state search warrant, nor did they relate in any way to a violation of state law. Those found by the agent were held by him as of right and without question; those found by the state officer were considered by both the local officer in charge and the federal agent as things which concerned the federal government alone and then and there were surrendered to the exclusive possession of the federal agent,—a practical concession that he was present in his federal character. We cannot avoid the conclusion that the participation of the agent in the search was under color of his federal office and that the search in substance and effect was a joint operation of the local and federal officers. In that view, so far as this inquiry is concerned, the effect is the same as though he had engaged in the undertaking as one exclusively his own.” (Emphasis added.)
The Byars case counsels that if police are present when private citizens conduct an unlawful search, the determinative issue in resolving whether constitutional restrictions are applicable is the character of the police presence. If *332the police were present primarily upon the chance that something of official interest might be discovered, compliance with the Fourth Amendment is required.
One reason given by the majority to support its conclusion that the October 28th search was a private search is the fact that the search “was instigated by private individuals, for private purposes * * However, the mere fact that the police do not initiate a search does not preclude a finding that the police joined in the search to fulfill an investigative function. Such a finding would convert the search from an exclusively private search into a joint venture between the police and the private individuals.
The majority states that the police “had every right to be present at the unlocking and opening of the bag in pursuance of their duty to safeguard the safety of the community from the threat of harm.” To the extent that this statement indicates the majority’s conclusion that the police presence and activity in unlocking the suitcase was justified by exigent circumstances, it simply is a contradiction of the facts in the record. However, to the extent that it reflects the majority’s conclusion that the police went to the train station primarily to ascertain the contents of the suitcase, it is accurate. Their purpose was to search the suitcase, and a warrant should have been obtained before that search.
The “community caretaking function” mentioned in Cady v. Dombrowski (1973), 413 U. S. 433, also does not apply. Any search in the interest of the public safety must have some reasonable basis. In Cady, supra, therei was some cause for the belief that an off-duty police officer had to carry a revolver at all times and it was standard procedure to retrieve a police service revolver to prevent vandals from getting the weapon. Although the principles underlying that decision are not clear, it appears that the special rules applicable to automobile searches, the fact of a type of police custody of the vehicle, and the existence of exigent circumstances stemming from the difficulties of rural police practice were basic to the decision in that case, *333Most importantly, the critical factor was the searcher’s reasonable belief that the automobile contained a dangerous, but not illegal, object. None of those factors are present here, and the unusual facts of that case provide no support for the proposition that a search claimed to be for the public safety is somehow not subject to the usual requirement that a warrant be obtained, absent exigent circumstances. See Almeida-Sanchez v. United States (1973), 413 U. S. 266. If there were reasonable grounds for belief that the public safety required a search, that search could have been carried out under a proper warrant as readily as under police discretion. The majority suggests no reason why a search for purposes of the public safety should not be subject to the usual requirement that a warrant be obtained, nor can I accept the implication that a police search which is not part of a criminal investigation is any less an intrusion upon privacy or any less subject to the Fourth Amendment.
The reliance of the majority upon the “plain view” doctrine is similarly misplaced. As was stated in Coolidge v. New Hampshire (1971), 403 U. S. 443, 466: “What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertantly across a piece of evidence incriminating the accused.” Even if the search in the present case is somehow considered to be a private search for explosives, the “plain view” doctrine alone would not permit the police to seize the narcotics in the suitcase, because “no amount of probable cause can justify a warrantless search or seizure absent exigent circumstances,” even where the article seized is contraband. Coolidge v. New Hampshire, supra, at 468. A private person making a search has no right to seize property, even contrabands, and there is no logic in considering a search to be private until the moment at which the seized object comes into plain view, and then finding that the right to seize derives from the fact that police officers, heretofore considered as private persons, have the object in “plain view.” The *334mere fact that an object subject to seizure is in plain view does not eliminate the requirement of a search warrant, absent exigent circumstances, for the “plain view” rule only applies where the initial police intrusion was lawful. Here, the police were, at best, participants in an unlawful private search, and, at worst, conducting a police search in violation of the Fourth Amendment. The police intrusion in this case was the picking of the suitcase locks in order to open the bag, and this intrusion was unlawful, without warrant, and not made under exigent circumstances. This wrongful intrusion is not a basis upon which the “plain view” rule can be applied.
A second requirement of the “plain view” rule is that the discovery of evidence must be inadvertant. It is clear that the purpose of the Toledo police was to participate in a baggage search, and that if explosives had been found, the explosives would have been liable to seizure, or at least to use as evidence against the owner of the bag. They would incriminate as surely as narcotics. It is absurd to argue in this situation that the discovery of the contents of the suitcase was in any way inadvertant, since their discovery was precisely the purpose for brealdng into the suitcase. In Fifth Amendment eases, the fact that a judicial inquiry is not for the immediate purpose of criminal prosecution does not prevent the assertion of the privilege against self-incrimination; so too in Fourth Amendment cases the fact that a warrantless search was for one type of evidence does not act as a bootstrap to justify the seizure and use of evidence of a different kind, for the unwarranted invasion of privacy remains the same.
The cases applying the Fourth Amendment to warrantless search and seizure cannot be reconciled into a set of simple principles. In many of those cases, there is a tension between two conflicting approaches. One approach considers that if a police search is subsequently found to be reasonable, no warrant is necessary, since the warrant requirement applies only to unreasonable searches. The majority apparently adopts that approach in this case. The other approach recognizes that the primary protection of *335the Fourth Amendment against unbridled police discretion lies in the requirement that a warrant be obtained from an impartial magistrate, and that the fundamental guarantees of the Fourth Amendment are eroded whenever the decision that a search is reasonable is made by a police officer, regardless of his good faith, except in exigent circumstances. Hard cases make bad law; but the result of this case inevitably reduces the security of every person’s property and effects against unconstitutional police intrusion, and undermines the simple principle “that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest.” Coolidge v. New Hampshire, supra, at 484.
Accordingly, I dissent.
O’Neill, C. J., concurs in the foregoing dissenting opinion.A subsequent case, Lustig v. United States (1949), 338 U. S. 74, also involved federal participation in a state search. In a 5-4 decision, the court held that the federal participation was such as to require application of the Fourth Amendment. The judgment of the court vías announced in an opinion written by Mr. Justice Frankfurter. The clear import of this opinion was that a search is a federal search if there was any federal participation in the search and seizure prior to actual appropriation of the seized objects from the premises searched. *330stated negatively, the thrust of the opinion was that a search and seizure is not a federal undertaking only if the illegally seized objects are appropriated by the state agents and then delivered to the federal agents “on a silver platter” (338 U. S., at 79).
Applying this rule to the facts of the present appeals would require invocation of the Fourth Amendment to the October 28th depot search and seizure. The police participation in the search clearly occurred prior to appropriation of the suitcase and its contents. In fact, the police were the appropriating parties; the Penn Central agents did not seize the bag and then turn it over to the police.