(dissenting);
If the logic of the Supreme Court’s decision in the Preston1 ease requires the conclusion that the search in this case is illegal, then I believe we have entered a topsy-turvy world in which the reasonable is unreasonable and common sense is nonsense. The Court of Appeals for the District of Columbia Circuit recently rejected a similar appeal to the logic of Preston with the observation that it would not be the “first court” in the land to be shackled to a supposed Preston syllogism. Adams v United States.2
If Preston demands the result reached by the majority in this case, then perhaps we should hope that the Supreme Court will disavow it, just as it reversed Trupiano3 by Rabinowitz.4 But Preston does not stamp as unreasonable and illegal what was done here.
Air Policeman Joseph R. Rego apprehended the accused at Eielson Air Force Base. The majority concedes the apprehension was lawful. Had the policeman then and there looked in the *255automobile, and seen and confiscated the gun, the seizure of the weapon would undeniably be legal.5 The policeman, however, did not attempt to put himself in the awkward position of checking out a vehicle, while exercising control over the two accused. The Air Force station was just a half hlock away; so he directed the accused to proceed to the station house. There, Rego identified the accused Herberg as the driver. Herberg contended he was the owner of the car, but could not produce proof of ownership. It was at this point that Rego went out to the automobile to look for the registration certificate which, under local law, was “supposed to [be] ... in the vehicle.” Was this action unreasonable? Was it so separated in time, place, and circumstance from the accused’s apprehension as to require us to brand the seizure of the gun as an illegal act? I think not.
In United States v Ross,6 we considered the general problem of a search incident to a lawful arrest where there was an actual physical separation between the person of the accused and the place of the search. We held that if the place of apprehension and the place of search are intimately connected, then the arrest justifies a particularized search. The rationale of Ross applies to this case. The accused were in the police station; the car was just outside. In my opinion, the car and the accused were still so connected in time, place, and circumstance as to make the automobile subject to search incident to the arrest. I am satisfied the long-established rule that a police oificer can, without violating the Constitution, search a vehicle incident to a lawful arrest of the driver and passenger does not demand that the search be made at the immediate place of arrest. A search of the arrested accused can be made either at the place of arrest or at the station house when he is booked. In my opinion, incidental search of the car can be similarly deferred. I am not facetious in saying I think it unreasonable and unrealistic to imply, as the principal opinion does, that the car cannot be searched unléss it is taken into the station house with the accused. I refuse to accept the conclusion that, because the car was left outside when the accused were taken inside, the connection between them was so attenuated as to make it constitutionally unreasonable to search the car incident to the arrest.
This case is just not Preston. Here, the car was searched contemporaneously with the arrest; it was searched at the police station at the time the accused were booked; and the vehicle was not in police custody. It was the converse of all these factors that induced the Supreme Court in Preston to hold the search and seizure illegal. This is evident from the following excerpt from its opinion:
“. . . Here, we may assume, as the Government urges, that, either because the arrests were valid or because the police had probable cause to think the car stolen, the police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place. See Stoner v California, 376 US 483, 11 L ed 2d 856, 84 S Ct 889. The search of the car was not undertaken until petitioner and his companions had been arrested and taken in custody to the police station and the car had been towed to the garage. . . . Nor, since the men were under arrest at the police station and the car was in police custody at a garage, was there any danger that the car would be moved out of the locality or jurisdiction. See Carroll v United States, supra, 267 US, at 153, 69 L ed at 551. We think that the search was too remote in time or place to have been made as incidental to the arrest and conclude, therefore, that the search of the car without a warrant failed to meet the test of reasonableness under the Fourth Amendment, rendering the evidence obtained as a result of the search inadmissible.” [Preston v United *256States, 376 US 364, 367-368, 11 L ed 2d 777, 84 S Ct 881 (1964).] [Emphasis supplied.]
I would affirm the decision of the board of review,
Preston v United States, 376 US 364, 11 L ed 2d 777, 84 S Ct 881 (1964).
Adams v United States, 336 F2d 752 (CA DC Cir) (1964).
Trupiano v United States, 334 US 699, 92 L ed 1663, 68 S Ct 1229 (1948).
United States v Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430 (1950).
United States v Summers, 13 USCMA 573, 33 CMR 105.
United States v Ross, 13 USCMA 432, 32 CMR 432.