(dissenting):
Appellant was convicted on two counts of violation of narcotics laws. The narcotics themselves, which were introduced into evidence at trial, were discovered by the police when they searched appellant after arresting him for vagrancy under 22 D.C.Code § 3302 (1967). On appeal it is argued that the vagrancy statute is unconstitutional, that therefore the arrest under it is invalid and that the exclusionary rule should apply to bar the use at trial of the fruits of a search incident to that arrest.
I
The majority maintains that the constitutionality of the vagrancy statute is not necessarily before this court because *1111no challenge was made to it at trial. But as the Supreme Court has long held, the waiver of a federal constitutional right is not lightly to be presumed. See, e.g., Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).1 I would not presume such a waiver here and would allow the point to be raised for the first time on appeal. See Fed.R.Crim.P. 52(b).
This court’s footnote discussion in Johnson v. United States, 125 U.S.App.D.C. 243, 245 n. 2, 370 F.2d 489, 491 n. 2 (1966), suggests that even if the vagranj cy statute is unconstitutional, a search incident to an arrest under it might still be lawful so long as there was probable cause for the arrest under the statute as written. The idea apparently is that, since the police had probable cause, they therefore had a duty to arrest for violation of a statute which, at the time of the arrest, appeared to be valid, and that, because the exclusionary rule is invoked to deter police misconduct, it should not apply here where the police conduct was, given the statute, reasonable.
With respect, I think this approach is misguided. By barring the admission of evidence seized pursuant to an unreasonable search, the exclusionary rule seeks to deter such searches irrespective of which arm of the government has authorized them. As the Supreme Court said in Sibron v. State of New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 1902 (1968), “The question in this Court upon review of a state-approved search or seizure ‘is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. * * * ’ Cooper v. [State of] California, 386 U.S. 58, 61, [87 S.Ct. 788, 17 L.Ed.2d 730] (1967).” Similarly, the question here is not whether the search was authorized by the District of Columbia Code.
It could be argued that any search incident to an arrest under an unconstitutional statute is an unreasonable one, see United States v. Margeson, E.D.Pa., 259 F.Supp. 256, 268 (1966); but we need not go that far. For the vagrancy statute, if unconstitutional, is so for reasons so intimately connected with the Fourth Amendment itself that the fruits of a search incident to an arrest under it should definitely be excluded. The problems with the statute are several: First, it is incredibly broad and vague, thereby giving police (and prosecutors) almost unfettered discretion to stop, question and search (and prosecute) almost anyone they choose. In addition, this vagueness does not give adequate warning to prospective delinquents who may seek to conform their behavior to the law. Second, the statute authorizes arrest (and search) for a status which, arguably, cannot constitutionally be made the subject of the criminal sanction. Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962); Lacey, Vagrancy and Other Crimes of Personal Condition, 66 Harv.L.Rev. 1203 (1953). Indeed, certain of the “conduct” proscribed by the statute may simply be so obviously harmless that to brand it criminal violates substantive due process. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). If this is so, then it could be said that arrests and searches under the statute are themselves unreasonable and the statute could be said to be unconstitutional under the Fourth Amendment itself. Third, it is sufficiently notorious to be a fitting subject of judicial notice that arrests for vagrancy are often made simply as a pretext for a search (or interrogation) which it is hoped will turn *1112up evidence of a crime which the police “merely suspect” the defendant has committed, is committing or will commit and for which the police therefore cannot constitutionally arrest. See, e.g., W. LaFave, ARREST 354 et seq. (1965); Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 9 (1960); Foote, Vagrancy-Type Law and Its Administration, 104 U.Pa.L.Rev. 603, 625-631, 649 (1956); Note, 59 YALE L.J. 1351 (1940); Report of President’s Commission ON Crime in D.C. 569 (1966) (dealing specifically with the narcotics vagrancy statute, 33 D.C.Code § 416a (1967)). Where the putative constitutional defects in the vagrancy statute are so closely related to the policies of the Fourth Amendment itself, it seems to me that if the statute is ultimately held to be unconstitutional, the exclusionary rule should be applied to the fruit of searches made incidental to arrests thereunder.2
II
Though I entertain serious doubts as to the constitutionality of the District of Columbia vagrancy statute, like the majority I do not think we have to reach the ultimate question of its validity. But unlike the majority, I think that issue can be avoided, not because the search was constitutional even if the underlying statute is not, but rather because I think the search was unconstitutional even if the statute is valid.
The idea that a warrantless search incident to a lawful arrest always satisfies the Fourth Amendment’s requirement of reasonableness has become a virtual shibboleth, unthinkingly repeated by the courts. But it is a shibboleth without adequate foundation in reason, and it is time that it be reexamined. In Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964), the Supreme Court asserted that the rule permitting such searches was .justified “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 * * But as the recent “stop and frisk” cases indicate, a frisk, which is less of an intrusion upon the sanctity of the person than is a thorough search,3 should be adequate to reveal weapons which might be used against the officer or to effect an escape. And since vagrancy is a crime with no conceivable attendant evidence, much less “fruits,” “instrumentalities” or “contraband,” the need to prevent the “disappearance or destruction of evidence of crime,” Terry v. State of Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884 (1968), or to “restore [the fruits of the crime] to their true *1113owner, Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 311, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (concurring opinion of Mr. Justice Fortas), is illusory. Indeed even the reasonableness of a frisk for weapons can be questioned, for probable cause to believe the individual is a vagrant does not in itself provide probable cause or even “reasonable suspicion” to believe he is armed or dangerous in any way.4
Admittedly there is no case law directly supporting my thesis that a search incident to a lawful arrest for a crime such as vagrancy may be, and without more is, unreasonable under the Fourth Amendment. Indeed, until recently there had been very little judicial attention paid to the connection between the scope of a search of the person and its reasonableness. The approach of the courts had generally been to say that a search of the person, no matter what its scope, was either valid or invalid, and that if it was incident to a lawful arrest, for any crime whatever, it was valid. But the Supreme Court’s recent pronouncements seem to me to repudiate that approach and, though not directly on point, to provide substantial support for the position I have taken. In Dyke et al. v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), the Supreme Court hinted that the search of a car incident to an arrest for a traffic offense might always be unconstitutional. See Note, Search Incident to Arrest for Traffic Violation, 1959 Wis.L.Rev. 347. It did not, however, decide that question because it found that the search in Dyke was too remote in time or place to be incident to the arrest. But even such a hint is noteworthy for its novelty.
Much more to the point, however, are the so-called “stop and frisk” decisions, Terry v. State of Ohio, supra, and Sibron v. State of New York, supra. In Terry, the Court upheld the on-the-street detention and search for weapons of three suspects who the detaining police officer had “adequate constitutional ground,” but not probable cause, to suspect were going to commit a crime. In its opinion the Court repeatedly emphasized that the Fourth Amendment governs all intrusions by agents of the public upon personal security and that the scope of the particular intrusion, in light of all the exigencies of the case, is a central element in the analysis of reasonableness. It emphasized also that an intrusion reasonable at its inception may violate the Fourth Amendment by virtue of its intensity and scope and that the “scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” (Citing Warden, Maryland Penitentiary v. Hayden, supra, 387 U.S. at 310, 87 S.Ct. 1642, concurring opinion of Mr. Justice Fortas.) 392 U.S. at 19, 88 S.Ct. 1878. The Court felt that its inquiry was a dual one — “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at 20, 88 S.Ct. 1879.
In Sibron v. State of New York, supra, a related case, the Court reversed Sibron’s narcotics conviction on the ground that the search which uncovered the narcotics violated the Fourth Amendment and therefore the evidence should have been excluded. The Court held that, unlike in Terry, there was no “constitutionally adequate reasonable ground” to conduct even a self-protective search for weapons. It went on, however, to point out that, even if there had been adequate grounds for such a search, “the nature and scope of the search conducted by Patrolman Martin were so clearly un*1114related to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.” 392 U.S. at 65, 88 S.Ct. 1904. The Court emphasized that the search of Sibron was invalid because it was “not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.” Ibid.
Mr. Justice Harlan, concurring, went even further and said clearly what may have been implicit in the Court’s opinion: that even if the police had reasonable grounds to suspect a narcotics offense, even a limited search for weapons might be unconstitutional because “the nature of the suspected offense creates no reasonable apprehension for the officer’s safety * * * ” 392 U.S. at 74, 88 S.Ct. at 1907.
It is true that the issue in both Terry and Sibron was the validity of searches incident to confrontations with suspects where the police lacked probable cause. But the Court’s approach in both cases was to gauge the reasonableness of the intrusion on the basis of its intensity and on the basis of the grounds for its inception. The Court’s formulation of the issues would not have been susceptible of resolution in terms of the non sequitur that because the arrest was lawful a thorough search incident to it was therefore reasonable under the Fourth Amendment.
As I have tried to show, a thorough search, and perhaps even a frisk,5 incident to a vagrancy arrest is not “ ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Terry, supra, 392 U.S. at 19, 88 S.Ct. p. 1878. It is not, in the words of the Court in Sibron, “reasonably limited in scope to the accomplishment of the [goals] which might conceivably have justified its inception.” 392 U.S. at 65, 88 S.Ct. p. 1904. It is, of course, related to a goal which could not have justified its inception — that of providing the police with an excuse for thoroughly searching individuals they merely suspect of crime. The vagrancy arrest has too long served as a cloak for such illegal searches.6 If the only crime for which the police have probable cause is vagrancy, a thorough search incident to the vagrancy arrest is unreasonable under the Fourth Amendment, and evi*1115dence uncovered in the course of such a search should be inadmissible.7 Accordingly, the narcotics admitted in evidence against the appellant here should have been excluded, and his conviction should be reversed.
I respectfully dissent.
. AH that the Supreme Court said in its footnote 3 in On Lee v. United States, 343 U.S. 747, 750, 72 S.Ct. 967, 970, 96 L.Ed. 1270 (1952), is that it thought the Court of Appeals “would have been within its discretion” in refusing to consider a constitutional point not raised at trial. It certainly did not say the court could not consider such a point. In fact in On Lee itself the Court of Appeals and the Supreme Court did pass on the issue thus raised.
. Moreover, assuming the statute is constitutional on its face, I think there are constitutional doubts with respect to its application to appellant here. It seems clear that until Worthy replied that he made his living “hustling, you know, stealing” there would not have been probable cause for an arrest even under the absurdly extensive vagrancy statute. It was appellant’s unsatisfactory “account of himself” that provided the police with the final element of the “crime.” But was Worthy free to refuse to answer and just leave when the police asked him to make such an account? If not, then was not his freedom of action impaired for purposes of the application of the strictures of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)? What could be more incriminating than a statement which itself constitutes an element of a crime? Should not the police have given Worthy the Miranda warnings before asking him to account for himself? And if Worthy simply refused to give any account could this assertion of his privilege against self-incrimination have been used against him to establish an element of the crime of vagrancy and thus provide probable cause for arrest?
. Even though a frisk for weapons is a “severe, though brief, intrusion upon cherished personal security,” Terry v. State of Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 1882 (1968), “which may inflict great indignity and arouse strong resentment,” id. at 17, 88 S.Ct. 1877, it still may “realistically be characterized as something less [intrusive] than a ‘full’ search * * Id. at 26, 88 S.Ct. 1882.
. Of course it may be that while there is a probable cause of vagrancy there is also some “adequate constitutional ground” short of probable cause to suspect that the accused is going to commit or has committed a dangerous crime. In this situation the police could, if the standards laid down in Terry and Sibron v. State of New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), are met, make a self-protective limited search of the outer clothing for weapons.
. The majority seems to assume that the search conducted here was a limited one for weapons. While it may be true, as one of the arresting officers testified, that all the police were looking for was weapons, there is absolutely nothing in the record to indicate that the search of the appellant was not a thorough one which intruded beyond a frisk of his outer clothing. And as Terry and Sibron, decided after the trial in this case, teach, it is the extensiveness of the search as well as the reason it is initiated that determine its Fourth Amendment reasonableness. Since the search was conducted before these decisions, there is no reason to think the police conducted only a frisk. As far as they knew, if a frisk was justified so was a thorough search. Indeed that an eye dropper and a needle were uncovered evidences the probable extensiveness of the search. Moreover, even the majority concedes that it “is possible for us now to speculate, in light of what developed, that the officers did suspect appellant of having narcotics in his possession * * To assume that they nevertheless limited their intrusion to a frisk for weapons is unjustified.
. Such arrests may also provide the police with an excuse to question the accused about other crimes which they suspect he has committed. See United States v. Carignan, 342 U.S. 36, 46, 72 S.Ct. 97, 96 L.Ed. 48 (1951); Culombe v. Connecticut, 367 U.S. 568, 631-632, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). See also the statement of Mr. Chief Justice Warren dissenting from the dismissal of the writ of certiorari as improvidently granted in Wainwright v. City of New Orleans, 392 U.S. 598, 605-606, 88 S.Ct. 2243, 20 L.Ed.2d 1322 (1968).
. It may be that if, for want of bail, the vagrant is to be incarcerated, a thorough search at the jail house is reasonable under the Fourth Amendment. But the questions of the validity of such a search and of whether evidence uncovered in the course of it should be admissible are not raised by the instant case.