(dissenting).
Because the majority has presumed a “search” I must respectfully dissent. On appeal the United States argued that the guns were not the products of a search, as that term is used in the Fourth Amendment. The majority has casually dismissed this proposition by concluding that the act of opening and itemizing the contents of Faubion’s luggage was ipso facto a search. Until now the police have been permitted to inventory all the personal belongings of a prisoner for the purpose of safekeeping during the prison term. The reason this is permitted is that the officers are not attempting to locate and confiscate evidence but rather to guarantee the safety of one's belongings. Under the majority’s presumption, this latitude seems to be abrogated. I do not believe such a result to be compelled by the Fourth Amendment.
The Fifth and Sixth Circuits have settled on what seems to be a well considered definition of “search”: “A search implies an examination of one’s premises or person with a view to the discovery of contraband or evidence of guilt to be used in prosecution of a criminal action. The term implies exploratory investigation or quest.” Haerr v. United States, 240 F.2d 533, 535 (5th Cir. 1957) and United States v. Blackburn, 389 F.2d 93, 95 (6th Cir. 1968).1 Implicit in the definition is an element of intent. When that crucial intent is lacking, as it is in a police station inventory of personal effects, there cannot be an illegal search.
*441The Ft. Smith police, employing their usual procedure, opened Faubion’s suit-ease and itemized the contents without any intent to seize contraband or evidence of guilt to be used in prosecuting the crime charged. The fact that Fau-bion had earlier mentioned the presence of two pistols in the suitcase does not taint the police procedure for three reasons. First, there was no indication that the weapons were stolen and could form the basis of an independent criminal charge. Second, even had Faubion not made the statements, the same procedure would have been followed, and the guns found. And third, there is an element of self-protection and jail security involved in locating and isolating weapons which are, in all probability, part of an accused’s possessions.
The decision of Brett v. United States, 412 F.2d 401 (5th Cir. 1969) is used by the majority as authority for the proposition that this was an illegal search. That case is factually different from this one but, at the same time, recognizes the distinction I attempt to make. In Brett, a search was made of appellant’s effects when he was booked into jail. However, several days later, at the insistence of a narcotics agent, another search was conducted which uncovered evidence of heroin. The latter search was challenged and deemed illegal. The court said: “The search was unrelated to the duties of the police as guardians of the prisoner’s property, to inventory or to protect property in their hands for safekeeping.” [at 405-406] That language and all that it implies should control this case.
To the same effect is United States v. Blackburn, 389 F.2d 93 (6th Cir. 1968). The Sixth Circuit held that no search had occurred when, after arresting defendants and taking them to police headquarters, police officers were sent back to the hotel room to collect the personal effects of defendants. In the course of that act, a pistol and notebook were found and later introduced into evidence. The court found no search. “The police employed their usual procedure when a person who was staying in a hotel or motel room was arrested. In sending for the belongings of the parties there was no intention of making a search for evidence or instruments of the crime. The conduct of the police department in sending for the personal effects of the parties, itemizing them and storing them for safekeeping was entirely reasonable and logical. We find that the action of the police officers does not constitute a search.” [at 95] This recognizes the refinement I attempt to point out between a search which intends to uncover concealed evidence to be used in a criminal prosecution and the routinely conducted inventory at a police station prior to incarceration.
Even if the majority is right in saying a search was conducted, the circumstances under which it was done do not indicate unreasonableness. In Brett it was recognized that warrantless searches may spring from exceptional circumstances. Certainly when a jail prisoner-to-be states that weapons are concealed among his effects, an exception ought to exist for reasons of personal preservation and jail security.
I would affirm the District Court on this point.
. Other cases similarly defining “search” are: United States, v. Haden, 397 F.2d 460 (7th Cir. 1968); Di Marco v. Greene, 385 F.2d 556 (6th Cir. 1967); United States v. Lodahl, 264 F.Supp. 927 (D.Mont.1967); United States v. Cook, 213 F.Supp. 568 (E.D.Tenn.1962); United States v. Strickland, 62 F.Supp. 468 (W.D.S.C.1945); in addition see 79 C.J.S. Searches and Seizures § 1; Black’s Law Dictionary (Fourth ed.) p. 1518.