(specially concurring):
There was probable cause for the traffic arrest, but the acknowledged motive for making the arrest was to search the car for narcotics. Under uniform authority well set out by Judge Wisdom such a search is invalid, and the evidence obtained from the search and the incriminating statement which is the fruit thereof must be suppressed. Therefore, I concur in the result.1
Legality of a search conducted after a traffic arrest which has not been made for an improper motive is not involved in this litigation and not hammered out as an issue between the parties. Justice Brandéis’ statement of rules of policy for passing on constitutional questions is still valid. “The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’ * * * The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’ * * * The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-347, 56 S.Ct. 466, 483, 80 L.Ed. 688, 711 (1936) (concurring opinion).
This case presents no reason for departing from that policy; in fact, it demonstrates the desirability of the rule of restraint in decision of constitutional issues. Search after traffic arrest is in a sensitive, developing and difficult area of the law, and the authorities and the underlying considerations are in conflict. Agencies of government, especially those engaged in criminal law enforcement, are entitled to full opportunity to participate in, brief and argue if they wish, a headon determination of the issue and to do so in a context in which it is appropriately raised for decision.
In Jackson v. United States, 352 F.2d 490 (5th Cir. 1965) there was in issue the validity of an automobile search after a traffic arrest. Defendant claimed the arrest was pretextual; the district court found it not so. On appeal this court held the finding of the district court not clearly erroneous, hence the search at the time of arrest permissible. Jackson is a less than full consideration, but the present case is not the appropriate vehicle for determining whether to overrule it.
I am not able to agree with the overly generalized language that “a search incident to an arrest must have as one or *320more of its purposes the discovery of [listing five categories].” The language can refer to search of the person of the accused, to search of physical premises and to search of an automobile (a specialized kind of “premises”). These varying kinds of searches cannot with accuracy be treated together indiscriminately under one generalized rule that purports to stake out the limits of the entire field.
“Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar.”
Preston v. United States, 876 U.S. 364, 366-367, 84 S.Ct. 881, 11 L.Ed.2d 777, 780 (1964). In the particular case of automobiles, chiefly because of their mobile nature, there are circumstances under which a search may be made incident to arrest for purposes other than discovery of the enumerated items. If incident to arrest a vehicle is impounded for reasons other than containing contraband — it simply may be necessary to remove it from the street — the police may have not only a right but a duty to search the vehicle to safeguard its contents and to protect themselves from subsequent claims that contents are missing. Williams v. United States, 382 F.2d 48 (5th Cir. 1967). If at the moment of arrest an accused lapses into what appears to be a diabetic coma the arresting officer may search in his pockets, and if he was in an automobile look in the glove compartment for emergency medication.
Many varying circumstances will continue to arise, so I do not indicate that with the addition of these examples the list is complete, only that the constitutional test of search and seizure is reasonableness, which is not to be either delineated or frozen in amber by a restatement of purposes that are stated to be the only ones constitutionally allowable.
. This case does not involve validity of the arrest, therefore, I do not at this time explore whether in a situation where probable cause exists an arrest made for the primary purpose of making a search to be justified as incidental to the arrest, may be unreasonable in constitutional terms and therefore invalid. It may be. Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961); Worthington v. United States, 166 F.2d 557 (6th Cir. 1948); Henderson v. United States, 12 F.2d 528 (4th Cir. 1926); Restatement (Second) of Torts § 127 (1965).