dissenting.
Federal officers, following a lawful arrest, seized contraband materials which were being employed in open view in violation and defiance of the laws of the land. *711Today, the Court for the first time has branded such a seizure illegal. Nothing in the explicit language of the Fourth Amendment dictates that result. Nor is that holding supported by any decision of this Court.
The material facts are not in dispute. In January,' 1946, certain of the petitioners approached one Kell offering to rent a portion of the latter’s farm on which a building was to be erected. His suspicions aroused, Kell reported the matter to agents of the Alcohol Tax Unit of the Bureau of Internal Revenue. He was advised that the offer could be accepted provided that nothing was done to entice petitioners into completion of their plans. An agent, Nilsen, was assigned to the farm to act the part of a farm hand in the employ of Kell.
Ultimately, an agreement was entered into whereby Kell rented a portion of his farm to petitioners at $300 a month. Petitioners, with the assistance of Kell and Nilsen, constructed a barn-like structure some two hundred yards from the farmhouse. A still and vats were installed. After the still began operation, Nilsen acted as a “mash man” receiving a salary of $100 a week from petitioners. All sums received by Nilsen were turned over to the Federal Government.
Throughout this period, Nilsen reported regularly to his superiors. As a result of this information, federal agents on May 31, 1946, seized a truckload of alcohol about an hour after it had left the Kell farm.
The night of June 3, 1946, was chosen by the agents to conduct their raid. Kell cooperated fully with the officers and drove three of the agents to the farm in his own car. As the car entered the farm premises, the odor of fermenting mash and the sound of a gasoline motor became apparent. When the agents alighted from the car it was obvious that the sound and the odor were emanating from the building in which the still was located. One of the agents approached the structure and through an *712open door observed a still and a boiler. He also saw the petitioner Antoniole bending over a gasoline pump. The agent entered the building and placed Antoniole under arrest on the theory that a crime was being committed in his presence. Subsequently, the agent seized the still, mash vats containing fermenting mash, other distillery equipment, and 262 five-gallon cans containing illicit alcohol. Neither the arrest nor the seizure was effected under the authority of a warrant. Later six other persons were arrested, including three of the petitioners in this case.1
There can be no doubt that the activities of petitioners were in flagrant violation of the laws of the United States.2 It is clear, also, that the materials seized consisted of instrumentalities used by petitioners in their criminal enterprise and contraband goods, possession of which is a crime. The materials and objects falling into the control of the federal agents, therefore, were of the type properly subject to lawful seizure.3
Further, it is obvious that entry of the federal agents onto the farm premises was in no sense trespassory or otherwise illegal. Amos v. United States, 255 U. S. 313 (1921); Byars v. United States, 273 U. S. 28 (1927). *713Kell, the owner of the farm, gave his active consent to the entry. Indeed, he voluntarily drove three of the agents to the premises in his own car.
Nor can there be doubt that the arrest of the petitioner Antoniole while engaged in the commission of a felony in the presence of the agent was a valid arrest. The majority of the Court explicitly concedes such to be the fact. Under the English common law, a police officer had power without a warrant to arrest persons committing a misdemeanor in the officer’s presence and persons whom the officer had reasonable cause to believe had committed a felony. This rule, which had its origin in the ancient formative period of the common law, was firmly established at the time of the adoption of the Fourth Amendment.4 Since that time it has received general application by state and federal courts.5 Indeed, this Court has heretofore given specific recognition to the rule. Carroll v. United States, 267 U. S. 132, 156-157 (1925).6
Thus, even though agents charged with enforcement of the laws of the United States made a lawful entry onto the farm and despite the fact that a valid arrest was made of a party who was in the act of committing a felony, the Court now holds that the arresting officer in the absence of a search warrant was powerless to make a valid seizure of contraband materials located in plain sight in the structure in which the arrest took place. And this despite the long line of decisions in this Court recognizing as consistent with the restrictions of the Fourth Amendment the power of law-enforcement officers *714to make reasonable searches and seizures as incidents to lawful arrests.
In Agnello v. United States, 269 U. S. 20, 30 (1925), this Court stated: “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime ... as well as weapons and other things to effect an escape from custody, is not to be doubted. . . . Such searches and seizures naturally and usually appertain to and attend such arrests.” 7 And see Weeks v. United States, 232 U. S. 383, 392 (1914); Carroll v. United States, supra at 158; United States v. Lee, 274 U. S. 559, 563 (1927); Marron v. United States, 275 U. S. 192, 198-199 (1927); Go-Bart Importing Co. v. United States, 282 U. S. 344, 358 (1931); United States v. Lefkowitz, 285 U. S. 452, 465 (1932); Harris v. United States, 331 U. S. 145, 150-151, 168, 186 (1947).
The validity of a search and seizure as incident to a lawful arrest has been based upon a recognition by this Court that where law-enforcement agents have lawfully gained entrance into premises and have executed a valid arrest of the occupant, the vital rights of privacy protected by the Fourth Amendment are not denied by seizure of contraband materials and instrumentalities of crime in open view or such as may be brought to light by a reasonable search. Here there can be no objection to the scope or intensity of the search. Cf. Marron v. United States, supra; Go-Bart Importing Co. v. United States, supra; United States v. Lefkowitz, supra; Harris v. United States, supra. The seizure was not preceded by an exploratory search. The objects seized were in plain sight. To insist upon the use of a search warrant in situations where the issuance of such a warrant can contribute nothing to the preservation of the rights which *715the Fourth Amendment was intended to protect, serves only to open an avenue of escape for those guilty of crime and to menace the effective operation of government which is an essential precondition to the existence of all civil liberties.
In reaching its result the Court relies on Taylor v. United States, 286 U. S. 1 (1932). There, federal agents broke into a garage and seized a quantity of illicit liquor. At the time of entry, “No one was within the place and there was no reason to think otherwise.” Id. at 5. The agents acted without the authority of a search warrant, nor, unlike the present case, was lawful entry into the building made for the purpose of effecting a valid arrest. Under these circumstances the Court ruled that the seizure was unlawful. But to apply that holding in a situation like the present, where law-enforcement officers have entered a building to arrest a party openly engaged in the commission of a felony, is to disregard the very basis upon which the Taylor case was decided.
We are told, however, that although the petitioner Antoniole was arrested while undeniably engaged in the commission of a felony, his presence in the building in which the contraband materials were located was a “fortuitous circumstance which was inadequate to legalize the seizure.” We should suppose that any arrest of a party engaged in the commission of a felony is based in part upon an element of chance. Criminals do not normally choose to engage in felonious enterprises before an audience of police officials. We may well anticipate the perplexity of officers engaged in the practical business of law enforcement when confronted with a rule which makes the validity of a seizure of contraband materials as an incident to a lawful arrest dependent upon subsequent judicial judgment as to the “fortuitous” circumstances relating to the presence of the party arrested on the premises in which the illegal goods are located.
*716Nor are we free to assume that the agents in this case would have proceeded illegally to seize the materials in the barn in the absence of the justification of a valid arrest. A lawful seizure is not to be invalidated by speculations as to what the conduct of the agents might have been had a different factual situation been presented.
The case of Johnson v. United States, 333 U. S. 10 (1948), does not support the result which the Court has reached. For there the majority of the Court held that the arrest in question was an invalid one. Obviously, a search and seizure may not be held valid on the sole ground that it was an incident to an invalid arrest. Such is not the situation here.
In Carroll v. United States, supra at 149, this Court observed: “The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” We believe that the result reached today is not consistent with judicial authority as it existed before the adoption of the Fourth Amendment nor as it has developed since that time. Nor do we feel that the decision commends itself as adapted to conserve vital public and individual interests. Heretofore it has been thought that where officers charged with the responsibility of enforcement of the law have lawfully' entered premises and executed a valid arrest, a reasonable accommodation of the interests of society and the individual permits such officials to seize instru-mentalities of the crime and contraband materials in open view of the arresting officer. The Court would now condition this right of seizure after a valid arrest upon an ex post facto judicial judgment of whether the arresting officers might have obtained a search warrant. At best, the operation of the rule which the Court today enunciates for the first time may be expected to confound confusion in a field already replete with complexities.
Subsequently, petitioners moved the District Court to order the return of the property seized and to suppress its use as evidence. 70 F. Supp. 764 (1947). The motion was denied. The order was affirmed by the Circuit Court of Appeals in a per curiam statement. 163 F. 2d 828 (1947).
See §§ 2803, 2810, 2812, 2814, 2831, 2833 of the Internal Revenue Code.
Boyd v. United States, 116 U. S. 616, 623, 624 (1886); Weeks v. United States, 232 U. S. 383, 392-393 (1914); Gouled v. United States, 255 U. S. 298, 309 (1921); Carroll v. United States, 267 U. S. 132, 149-150 (1925); Agnello v. United States, 269 U. S. 20, 30 (1925); Marron v. United States, 275 U. S. 192, 199 (1927); United States v. Lefkowitz, 285 U. S. 452, 465-466 (1932); Harris v. United States, 331 U. S. 145, 154 (1947).
Samuel v. Payne, 1 Doug. K. B. 359 (1780); Wakely v. Hart, 6 Binn. 316 (1814). And see 2 Hale, Pleas of the Crown 85-97; 4 Blackstone, Commentaries 292-293; Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 541, 673.
United States v. Daison, 288 F. 199 (1923); Rohan v. Sawin, 5 Cush. 281 (1850); Wade v. Chaffee, 8 R. 1.224 (1865).
Cf. Kurtz v. Moffitt, 115 U. S. 487, 498-499 (1855).
And see id. at 32,33.