(concurring in the result):
I agree with Judge EDGERTON that appellant’s conviction must be reversed because of the admission of illegally seized evidence which should have been excluded under Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964). The Preston opinion sets out the policies which justify a departure from the usual warrant requirement when a search is made as an incident to an arrest:
“The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime— things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest. Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U.S., at 31 [46 S.Ct. 4, *1004at 5, 70 L.Ed. 145].” 376 U.S. at 367, 84 S.Ct. at 883.1
The Court held the search unreasonable because the search was “too remote in time or place” from the arrest. 376 U.S. at 368, 84 S.Ct. at 884. At the time of the search, “there was no danger that any of the men arrested could have used any weapons in the car or could have destroyed any evidence of the crime” and there was no “danger that the car would be moved out of the locality or jurisdiction.” 376 U.S. at 368, 84 S.Ct. at 883. The same is true of the instant case. The appellant and his associates had been arrested and taken to another place. They had no access to the car, which was also in police custody. It is true that appellant was present at the time of the search, and defendant in Preston was not. But I attach no significance to that difference.2
I appreciate the facts that the Preston opinion is somewhat ambiguous and that the policy justifications for a search pursuant to an arrest stated in Preston are difficult to reconcile with older Supreme Court decisions.3 But the Preston case has recently been quoted at length by the Court as setting forth the scope of permissible search incident to a lawful arrest. United States v. Ventresca, 380 U.S. 102, at 107 n. 2, 85 S.Ct. 741, at 745 n. 2, 13 L.Ed.2d 684, at 688 n. 2 (1965). In the light of this reaffirmation of the Preston reasoning, we are unwilling to give the case the narrow reading urged by the Government.4
I do not think it necessary for us to reach the vexatious questions of whether stopping a moving car always constitutes an “arrest,” and whether the Virginia statute was properly invoked or fairly interpreted by the police in this case. Accordingly, I express no view on those questions.
. See also United States v. Rabinowitz, 339 U.S. 56, 72, 70 S.Ct. 430, 437, 94 L. Ed. 653, 663 (dissent, Frankfurter, J.). Cf. Price v. United States, 121 U.S.App.D.C. -, 348 F.2d 68, cert. denied, 86 S.Ct. 170 (1965).
. The closest Court of Appeals case to the case at bar that we have found is Crawford v. Bannan, 336 F.2d 505 (6th Cir. 1964), in which the admission of evidence seized in similar circumstances was sustained. In Crawford the defendant was not present at the time of the search. I do not think that the factual differences between the two cases justify distinguishing them; with due respect to the Sixth Circuit, I disagree with the result therein. Compare United States v. Cain, 332 F.2d 999 (6th Cir. 1964); United States v. Herberg, 15 U.S.C.M.A. 247, 35 C.M.R. 219 (1965).
. See, e. g., Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). In that case appellant was lawfully arrested and handcuffed in his living room. FBI agents then searched his entire apartment for five hours without a warrant. The Supreme Court held that this search was reasonable.
This court has stated explicitly that searches of the kind made in this case are illegal. In Smith v. United States, 118 U.S.App.D.C. 235, 238, 335 F.2d 270, 273 (1964), we said:
“Even before the recent case of Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964), it was clear that a warrantless search of a car in police custody at a time after the occupants’ arrest and under circumstances where there is no danger of removal is illegal. Rent v. United States, 209 F.2d 893 (5th Cir. 1954) ; Shurman v. United States, 219 F.2d 282 (5th Cir. 1955) ; Millette v. State, 167 Miss. 172, 148 So. 788 (1933). The Supreme Court’s holding to the same effect in Preston puts the matter to rest.”
. Cf. Sisk v. Lane, 331 F.2d 235, 239 (7th Cir. 1964). See Adams v. United States, 118 U.S.App.D.C. 364, 336 F.2d 752 (1964), where we declined to apply Preston because the search was strictly contemporaneous to the arrest.