(dissenting).
I would affirm and hold that the seizure of the incriminating documents falls within the rule announced in Harris v. United States, 390 U.S. 234, 236, 888 S.Ct. 992, 993, 19 L.Ed.2d 1067 (1968), where the Court held:
“It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Ker v. State of California, 374 U.S. 23, 42-43, 83 S.Ct. 1623, 1634, 1635, 10 L.Ed.2d 726 (1963); United States v. Lee, 274 U.S. 559, 47 S.Ct. 746, 71 L.Ed. 1202 (1927); Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).”
In Harris, an officer was examining the defendant’s car for the purpose of removing any valuables. When he *887opened the door to the vehicle he viewed a registration certificate. The document was seized and used to incriminate the defendant at trial. The examination was conducted pursuant to a police regulation, and as in the instant case, the evidence was seized without a warrant and while the defendant was incarcerated in the station house.
Defendant Heffley was arrested for illegal possession of a gun. At the scene of arrest the officers viewed, in bulk, the following items lying in the back portion of the vehicle: six shotguns, two rifles, two pistols, four cameras, field glasses, a timing light and various papers. The documents in issue were either underneath the weapons or lying next to them.1 When Heffley’s vehicle was later taken to the police station Officer Santich seized the weapons and the documents.
Assuming the two passports and the two certificates of registration were not visible from outside the vehicle, it does not follow that they could not be seized by the officer once he was lawfully in the vehicle. As in Harris, if the officer’s presence in the car is lawful, he can seize evidentiary items falling into view at that time. In this case, Officer Santich’s presence in the vehicle was the result of the view of the weapons he had at the scene of arrest, and therefore lawful.
The majority opinion is correct in stating “* * *' [t]he ‘narrow circumstances’ of Harris are not present here.” Majority Opinion supra p. 883. In Harris, the officer did not have a view of any incriminating objects before he entered the vehicle. The entrance there was justified under a police regulation. In this case the officer had the view before he entered the vehicle, and, as Harris clearly holds, those objects so viewed were subject to immediate seizure. Therefore I cannot agree that the officer in Sacramento had no right to enter and remove the guns or that he was required to get a search warrant to seize additional objects he saw once he was within the vehicle.
Adopting the reasoning of the majority opinion based on Pendleton v. Nelson, 404 F.2d 1074, 1077 (9th Cir. 1968), the officer in Harris, could not have seized the incriminating documents without first obtaining a warrant. His seizure would be unreasonable since no exigent circumstances existed justifying a war-rantless seizure.
Such reasoning does violence to the Harris opinion, and the premise upon which the United States Constitution should be interpreted “There is no war between the Constitution and common sense.” Mapp v. Ohio, 367 U.S. 643, 657, 81 S.Ct. 1684, 1693, 6 L.Ed.2d 1081 (1961).
Decisions involving facts similar to those before us have sustained the validity of the seizure without a- warrant. See e.g., Leffler v. United States, 409 F.2d 44, 50 (8th Cir. 1969); Creighton v. United States, 132 U.S.App.D.C. 115, 406 F.2d 651, 652 (1968); People v. Harris, 67 Cal.2d 866, 64 Cal.Rptr. 313, 434 P.2d 609 (1968). Cf. United States v. Riso, 405 F.2d 134 (7th Cir. 1968), cert. denied 394 U.S. 959, 89 S.Ct. 1306, 22 L.Ed.2d 560 (1969). Nor is a warrant required under authority of Harris, supra, to inspect evidence in possession of police. Westover v. United States, 394 F.2d 164, 165 (9th Cir. 1968).
There is no argument with the proposition that the officers could have seized the items at the scene of arrest — regardless of the feasibility of obtaining a warrant.
“The practicability of obtaining a warrant is not the controlling factor when a search is sought to be justified as incident to arrest, * * *888Ker v. California, 374 U.S. 23, 41, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726 (1963).
Instead, the officers drove the vehicle three blocks from the scene of arrest and there immediately seized the incriminating documents. If exigent circumstances were required it would seem that the public safety factor resulting from police procedures utilized in this case suffice.2 The officers here should be commended not condemned.
I would also affirm on other grounds. The seizure here was not “* * * remote in time or place from the arrest.” Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Under the circumstances present here the availability of warrant process is not determinative. Ker v. California, supra.
The majority opinion places this Circuit in the minority of the jurisdictions which have decided this question. Majority Opinion supra p. 883. This position is not heretofore reflected by our previous holdings. Pasterchik v. United States, 400 F.2d 696 (9th Cir. 1968) (evidence suppressed where some four hours after accused was arrested F.B.I. agents went to his home and searched his car located in the garage). Schoepflin v. United States, 391 F.2d 390 (9th Cir.), cert. denied 393 U.S. 865, 89 S.Ct. 146, 21 L.Ed.2d 133 (1968), (search held violative of Preston, supra, where F.B.I. agent was called into case and searched accused’s car at police garage some two hours after arrest). Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965) (evidence suppressed where accused was picked up on the street, driven to his place of residence, and residence searched). In each of the above cases the location of the search was either distant from the place of arrest or the lapse of time from arrest to search exceeded two or more hours.
The majority would find support in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) notwithstanding this Circuit’s recent decision limiting Chimel to prospective application. Williams, et al. v. United States, 418 F.2d 159 (9th Cir. Decided Oct. 17, 1969). In so doing law enforcement officials are held to a standard in 1965, announced in 1969. The arrest and search in this ease occurred on November 13, 1965.
I do not find a reference in the Chimel opinion that indicates Preston is to be “stringently” applied as the majority states. On the contrary that opinion specifically excludes certain automobile searches.3 Preston is cited as authority in Chimel but the Supreme Court has not enlarged that holding even though opportunity to do so has existed.4
This Court should favor the reasoning of the Eighth Circuit in Leffler v. United States supra, where Judge Mehaffy, writing in a case similar to this one, says:
“* * * We must bear in mind that the Fourth Amendment denounces only unreasonable searches and seizures, and if the criminal laws of this country are to be enforced and law-abiding citizens protected, care should be taken not to place a doctrinaire or hypertechnical interpretation upon the plain and simple language of the Constitution in our zeal to protect the rights of those charged with crimes.” Leffler v. United States, 409 F.2d 44, 49 (8th Cir. 1969).
I would affirm.
. The “record” supports the findings of the district court below that: “ * * * Most of the articles seized were in plain view in the rear portion of the sedan, and the evidentiary items essential to the Nevada prosecution were there found, although they may have been covered or obscured by the guns and other paraphernalia.” (Emphasis added) Record at 137.
. Heffley's ear was stopped on a three lane one way street. Cars were backed up behind the scene of arrest and were forced around in order to resume their travel. (Record at 33 and 36). See Morris v. Boles, 386 F.2d 395 (4th Cir. 1967), cert. denied 390 U.S. 1043, 88 S.Ct. 1640, 20 L.Ed.2d 304 (1968), where the needs of crowd control and protection of the prisoner warranted removal of the car and a subsequent search.
. 395 U.S. at 704 fn 9, 89 S.Ct. 2034.
. See e. g., Cooper v. California, 386 U.S. 58, 62, 65, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (dissent).