(concurring):
The Fourth Amendment, of course, protects the person against illegal arrest as *934well as property against unlawful search. Unfortunately, however, a different set of principles has evolved with respect to the protection of each. As to the search of property, with certain well defined exceptions, it is clearly the law that a search warrant must be obtained.1 **45**When a police officer has evidence which he deems to be probable cause for the search, he must place that evidence before a judicial officer who will make that judgment. The security of property is not left to the judgment of a police officer “engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, supra Note 1, 833 U.S. at 14, 68 S.Ct. at 369.
With reference to the protection of persons from illegal arrest and subsequent search pursuant thereto, not only of their persons but of their immediate surroundings, it has been held that state law determines the validity of arrests without warrant. Johnson v. United States, supra Note 1, 333 U.S. at 15 n. 5, 68 S.Ct. 367; United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Most states follow the old common law principle that a police officer may make a valid arrest without a warrant for a misdemeanor or a felony committed in his presence and for a felony not committed in his presence where he has probable cause to believe that a felony has been committed and that the person arrested committed it.2
Currently there appears to be a certain amount of uneasiness with this dichotomy between search and arrest. The Supreme Court, in Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958), held that the issuance of an arrest warrant under Rules 3 and 4, Fed.R.Crim.P., must be based on the judgment of “a neutral and detached magistrate” who, in determining probable cause, “should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.” In Jones v. United States, supra Note 1, 357 U.S. at 499-500, 78 S.Ct. at 1257, where the Government sought to justify the entry of a home to arrest without an arrest warrant, the Supreme Court stated:
“These contentions, if open to the Government here, would confront us with a grave constitutional question, namely, whether the forceful nighttime entry into a dwelling to arrest a person reasonably believed within, upon probable cause that he had committed a felony, under circumstances where no reason appears why an arrest warrant could not have been *935sought, is consistent with the Fourth Amendment. * * * ”3
This court has several times ruled on the Jones situation and has held that such arrests are illegal in the District of Columbia. Morrison v. United States, 104 U.S.App.D.C. 352, 357, 262 F.2d 449, 454 (1958); Accarino v. United States, 85 U.S.App.D.C. 394, 402, 179 F.2d 456, 464 (1949); cf. District of Columbia v. Little, 85 U.S.App.D.C. 242, 246, 178 F.2d 13, 17, 13 A.L.R.2d 954 (1949), affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950). And in Gatlin v. United States, 117 U.S.App.D.C. 123, 128 n. 10, 326 F.2d 666, 671 n. 10 (1963), we said: “The police here, as in Wong Sun [v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)], acted without an arrest warrant. Thus they failed to place their information before a ‘neutral and detached magistrate’ who obviously is in a better position to determine probable cause than an ‘officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). This failure alone, absent exceptional circumstances, may be sufficient to invalidate this arrest. [Citing cases.]”
Thus we see, as the dissents in Giordenello, 357 U.S. at 489-492, 78 S.Ct. 1245, and Jones, 357 U.S. at 500-503, 78 S.Ct. 1253, clearly indicate,4 the law with reference to the necessity of arrest warrants is in a state of flux with change possibly impending. This change would, of course, eliminate some of the problems which now arise from warrantless arrests followed by interrogation of the accused. For example, if probable cause for arrest were just established before a judicial officer, there would be no occasion for attempting to have the arrestee provide additional evidence of probable cause prior to being brought before the Commissioner. See Rule 5(c), Fed.R.Crim.P. Thus the disreputable and unconstitutional practice of arresting for investigation and interrogation would be discouraged.
The trial court here held that, after obtaining information amounting to what they considered probable cause for the arrest of appellants, it would have been practicable for the police to obtain arrest *936warrants. The trial court held further, however, that the arrests were legal without them.
In the present state of the law this ruling was undoubtedly correct. Nevertheless, I have no doubt that before too long personal liberty will be accorded the same protection under the Fourth Amendment as the ownership and possession of property now enjoy. See Barrett, Personal Rights, Property Rights, and the Fourth Amendment, in 1960 SUPREME Court Review 46.
. “Were federal officers free to search without a warrant merely upon probable cause to believe that certain articles were within a home, the provisions of the Fourth Amendment would become empty phrases, and the protection it affords largely nullified.” Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). See also Johnson v. United States, 333 U.S. 10, 13-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Chapman v. United States, 365 U.S. 610, 614-615, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961). “[S]uch searches are * * * unlawful notwithstanding facts unquestionably showing probable cause.” Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925); Chapman v. United States, supra, 365 U.S. at 613, 81 5. Ct. 776. See also, e. g., Taylor v. United States, 286 U.S. 1, 52 S.Ct. 466, 76 L.Ed. 951 (1932); McDonald v. United States, 335 U.S. 451, 69 S.Ct 191, 93 L.Ed. 153 (1948) . “In cases where the securing of a warrant is reasonably practicable, it must be used * * *.” Carroll v. United States, 267 U.S. 132, 156, 45 S.Ct. 280, 286, 69 L.Ed. 543 (1925). "Over and again this Court has emphasized that the mandate of the Amendment requires adherence to judicial processes. See Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4 (1925).” United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951).
. But it has been said that “[t]he rule is that an officer should obtain a warrant. wherever possible * * *.” 1 Alexander, The Law oe Arrest § 74, p. 428 (1949) .
. The Supreme Court’s holding in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that evidence obtained by state officers as well as federal officers in violation of the Fourth Amendment is inadmissible in state court proceedings is a further indication that prior rulings in Fourth Amendment cases do not necessarily represent the Supreme Court’s present position in this area.
. See also Mr. Justice Douglas, concurring, in Wong Sun v. United States, 371 U.S. 471, 497-498, 83 S.Ct. 407, 422 (1963):
“While I join the Court’s opinion I do so because nothing the Court holds is inconsistent with my belief that there having been time to get a warrant, probable cause alone could not have justified the arrest of petitioner Toy without a warrant.
“I adhere to the views 1 expressed in Jones v. United States, 362 U.S. 257, 273, 80 S.Ct. 725, 4 L.Ed.2d 697. What I said in the Jones case had been earlier stated by Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367 (another narcotics case):
‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a 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.’ Pp. 13-14, 68 S.Ct. p. 369. And see Chapman v. United States, 365 U.S. 610, 615-616, 81 S.Ct. 776.
“The Court finds it unnecessary to reach that constitutional question. I mention it only to reiterate that the Johnson case represents the law and is in no way eroded by what we fail to decide today.”