(concurring in part and dissenting in part):
I concur in Part II A and B of the court’s opinion.1 I respectfully dissent from Part I which upholds a nighttime warrantless search of a home. As I read the majority opinion, it upholds the search, to some extent at least, on the *399theory that the new system for issuing warrants after office hours may work better than the one in effect at the time of this search. As I see it, constitutional rights cannot be denied by the malfunctioning of a system designed to protect them. In affirming the judgment of the District Court, I submit that the privacy of homes generally in the District of Columbia would be better protected under the Fourth Amendment from official intrusion if the court here had simply held that the evidence of guilt is so overwhelming2 that beyond a reasonable doubt the admission of the fruit of the illegal search did not taint the conviction. Chapman v. California, 386 U.S. 18, 22-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
On December 2, 1966, four men robbed a clothing store in the District of Columbia. Appellant was tried and convicted as one of the participants in the crime. On appeal Dorman argues that his rights were violated by the police in searching his house at night without a warrant and accordingly the fruit of that search — a suit of clothes from the robbed store — should not have been allowed in evidence.
The store was robbed at about 6:15 on a Friday evening. Several clerks and customers were in the store at the time, and a policeman was on duty nearby. The policeman saw the robbers emerge and chased them in vain. Other police were summoned, including Detective Blancato, who was in charge. The police found some papers apparently left by one of the robbers which contained the name and address of Dorman. At 8:00 P.M. they took two of the witnesses to the police station where the witnesses identified Dorman from a photograph as one of the perpetrators of the crime. Detective Blancato then “sat down and started typing up an application for a warrant” while his partner called the Assistant United States Attorney on duty at the time. Dectective Blancato testified that he had almost finished typing up the application when the Assistant United States Attorney called back and “told us that they were unable to locate a judge.” He testified that the attorney told them that since the crime was a felony they could go ahead and arrest Dorman without a warrant.
Detective Blancato then rounded up a number of policemen and proceeded to Dorman’s home. Some officers stayed outside the apartment house and approximately six officers, most in plain clothes, went to the door of Dorman’s apartment. Two of the officers were carrying shotguns. They arrived at the apartment at about 10:20 P.M. The police knocked on the door and Dorman’s mother, who lived in the apartment, answered. Dorman’s mother, in the words of the prosecutor, “was in her nightgown or something equally gossamer at the time.” The police made known their purpose to arrest Dorman, asked if he was at home, were told that he was not, heard a sound within, and rushed into the apartment. Dorman was not there but a man friend of his mother’s, who lived in the apartment with her, was. He was watching television, apparently dressed only in a pair of shorts.
The police then thoroughly searched the apartment. One policeman entered a walk-in closet where he found an unhemmed suit from the clothing store. The policeman removed that suit, and half a dozen others which belonged to Mrs. Dorman’s friend. Other policemen, as Judge Gasch who heard testimony at a suppression hearing found, “rummaged about the apartment and seized other items which have since been returned” to Dorman. Finding that Dorman was not at home, the police nevertheless stayed in the apartment until 4:00 the next morning, passing the time, according to Mrs. Dorman, “smoking cigarettes and laughing.” Mrs. Dorman *400and her friend discussed trying to find a place to stay during the night since the police seemed intent on remaining. The next day the police apprehended Dorman as he was riding in a car. At trial the Government introduced into evidence, over defense counsel’s objection, the suit taken from the closet.
The Government here contends that the police had probable cause to arrest Dorman; that it was reasonable to believe he might be at his home; that the police entrance into the home without a warrant to look for him was reasonable; that, although Dorman was eventually discovered not to be at the apartment, it was reasonable for the police to look into the closet to see if he was hiding there; and that since the suit was in the plain view of the officer once he looked into the closet the suit was validly seized as being within the proper scope of a lawful search for a suspected felon. I agree with the Government that the actions of the police in this case should be judged from their position at the time they came to, and entered, Dorman’s apartment with the intent of finding and arresting him. Further, I agree that at that time the police had probable cause to arrest Dorman. Finally, I agree that it was reasonable for the police to believe that Dorman might have been at his home. The question then becomes whether, nonetheless, the police violated the Fourth Amendment when they entered Dorman’s home without a warrant.
Both the Supreme Court and this court have made clear on numerous occasions that, when police enter a home to search for a person or for evidence or fruits of crime, the preferred method of proceeding is to obtain a warrant.3 Mr. Justice Jackson, a distinguished prosecutor before becoming a Justice, expressed it well:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies *401law 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. * * * The right of officers to thrust themselves into a home is * * * a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). (Footnotes omitted.)
These considerations have resulted in the requirement that when police enter a house to search for and arrest a person they must have a warrant unless “exigent circumstances” require their immediate entry. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948). This court stated the requirement quite explicitly as long ago as 1949. In Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456 (1949), we discussed the right of privacy which underlies the Fourth Amendment. We noted that a person has an additional right of privacy in his home. We went on to say:
“ * * * That additional right imposes additional requirements upon the power of arrest. In District of Columbia v. Little, [85 U.S.App.D.C. 242, 178 F.2d 13 (1949), affirmed on other grounds, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950)], we said: ‘We emphasize that no matter who the officer is or what his mission, a government official cannot invade a private home, unless (1) a magistrate has authorized him to do so or (2) an immediate major crisis in the performance of duty affords neither time nor opportunity to apply to a magistrate.’ ”
85 U.S.App.D.C. at 402, 179 F.2d at 464. We have since recognized a number of times the requirement that the police must be faced with exigent circumstances, sometimes called necessitous circumstances, before they can enter a home to make an arrest without a warrant. See, e. g., Chappell v. United States, 119 U.S.App.D.C. 356, 360, 342 F.2d 935, 939 (1965); Jackson v. United States, 112 U.S.App.D.C. 260, 302 F.2d 194 (1962); Morrison v. United States, 104 U.S.App.D.C. 352, 262 F.2d 449 (1958).
“Exigent circumstances” means something more than probable cause to believe a person has committed a crime and reasonable grounds to believe he is within his home.4 The Supreme Court has listed some exigent circumstances. These include a suspect fleeing or likely to flee the jurisdiction, evidence, weapons or contraband threatened with removal or immediate destruction, or a ease where “the officers, passing by on the street, hear a shot and a cry for help and demand entrance in the name of the law.” McDonald v. United States, supra, 335 U.S. at 454, 69 S.Ct. at 192; Johnson v. United States, supra, 333 U. S. at 14-15, 68 S.Ct. 367.
Most recently, in Warden, Maryland Penitentiary v. Hayden, supra, the Court expanded the meaning of exigent circumstances to include a situation of “hot pursuit.” In Hayden there was an armed robbery; two cab drivers came *402on the scene and followed the robber to a house. The cab drivers notified the police by radio and the police arrived at the house within five minutes. They entered the house to look for the robber, found him there, and arrested him. The Court held that under those circumstances a warrant was not necessary.
At the suppression hearing here the Government tried to justify the police entry as an extension of the principle laid out in Hayden.5 The District Judge, somewhat reluctantly, agreed. He ruled:
“* * * [I] t appears to this Court that the entry, search and seizure in this case should be upheld as a reasonable exercise of police authority, following the reasoning of Warden v. Hayden, supra. Once the police found papers identifying defendant Dorman at the scene of the crime, and showing his address, the police had probable cause to believe that he would have gone home following the robbery, and that he might still be there. They knew he was armed and that he was not unwilling to use force and violence to accomplish his aims. They had a duty to try to apprehend him as quickly as possible. * * * ”
However, this case does not present hot pursuit as in Hayden. Here there was a four-hour delay between the crime and the entry. In Hayden the whole episode took but a few minutes. This difference in time between the two cases undercuts the application of the hot pursuit exception to this case. In the four hours any fruits of the crime that the suspected robber intended to dispose of immediately would no longer be in his custody; similarly, if the suspect was in fear of being caught or felt he was being pursued, it was not likely that he would linger at his home for four hours prior to fleeing. Also, if he intended to get rid of any possible weapons, the time was ample for him to have already done so. Thus the primary rationale for the Hayden hot pursuit exception is absent here.
“The consent theory can be disposed of quickly, for no valid consent can be found when police armed with shotguns present themselves at the door of a house or apartment late at night and state that they want to arrest the householder’s son. * * * ”
The police, while waiting for a judicial officer to authorize entry into the home, could simply have staked out the apartment. In fact, while the group of officers entered, others did cover the exits to the building and apartment. The police could have remained outside the apartment until a warrant was obtained. If Dorman was in the apartment and left it, the police could have arrested him then. The difference in approach is not slight. Had the police followed this procedure, Mrs. Dorman and her friend might have been spared the shame, shock and embarrassment of the nighttime shotgun-bearing entrance of half a dozen policemen into their home. Further, the insensitive action of the group remaining inside the home through most of the night might have been avoided. This is so because, even if the magistrate or judge had decided that probable cause existed to issue a warrant, he might have put reasonable limits on its execution — for example, he might have limited the entry of a home in its execution to daytime,6 or he might *403have made explicit that the warrant was good only to search for Dorman and that it was not a license to remain indefinitely in the apartment.7
A final point should be made regarding the advice of the Assistant United States Attorney to the police that a judge could not be found so the police should make the arrest without a warrant. First, the attorney was called when Detective Blancato began typing an application for a warrant, and he called back with his advice before Detective Blancato had finished typing it. The time elapsed was thus very short. It is hardly credible that a diligent search for a judge or magistrate was made within that time.8 This court has noted several times that magistrates are available 24 hours a day. Ricks v. United States, 118 U.S.App.D.C. 216, 221, n. 11, 334 F.2d 964, 969, n. 11 (1964); Jones v. United States, 113 U.S.App.D.C. 256, 258, 307 F.2d 397, 399 (1962). And if the magistrate on duty was somehow unavailable, there were, as the Government concedes, over 125 other judicial officers in the District authorized to issue warrants.
In my judgment the police were right in seeking a warrant before they entered and searched this home. I join the majority here in hoping they will do so again when confronted with a similar situation.
. As to the identification issue discussed in Part II B, the court notes that the arrest occurred before United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Since the Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), issue is a constitutional one, it may be raised collaterally. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969).
. Appellant left copies of his monthly probation report showing his name and address at the scene of the crime. In addition, he was identified as one of the robbers by at least three eye witnesses,
. See, e.g., Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Katz v. United States, 389 U.S. 347, 356-357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 528-529, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); United States v. Ventresca, 380 U.S. 102, 105-106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Beck v. Ohio, 379 U.S. 89, 96, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) ; Aguilar v. Texas, 378 U.S. 108, 110, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) ; Preston v. United States, 376 U.S. 364, 367-368, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Wong Sun v. United States, 371 U.S. 471, 481-482, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Chapman v. United States, 365 U.S. 610, 614-617, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Jones v. United States, 357 U.S. 493, 498, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958); Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951); McDonald v. United States, 335 U.S. 451, 454-456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Chappell v. United States, 119 U.S.App.D.C. 356, 359-360, 342 F.2d 935, 938-939 (1965); Morrison v. United States, 104 U.S.App.D.C. 352, 262 F.2d 449 (1958); Accarino v. United States, 85 U.S.App.D.C. 394, 179 F.2d 456 (1949).
The concern of the courts has been expressed forcefully. In McDonald v. United States, supra, 335 U.S. at 456, 69 S.Ct. at 193, the Supreme Court said:
“* * * Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. * * *”
I note a renewed concern today in the face of figures which indicate that the Fourth Amendment warrant requirement is not being respected by the police. Thus in the city of San Francisco there were only 19 search warrants issued in 1966 and only 20 in 1967. Letter from Fred Graham, New York Times Reporter, to Professor Telford Taylor, School of Law, Columbia University, December 20, 1968, reporting on figures obtained from Harry Green, Chief Division Clerk, Criminal Division, San Francisco Municipal Court.
. Compare Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925) :
“* * * Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And sucii searches are held unlawful notwithstanding facts unquestionably showing probable cause. $ * * >t
. In the District Court the Government also tried to justify the entry on the ground of consent, since Mrs. Dorman had told the police they could enter. Judge Gasch quite properly rejected this argument:
. Rule 41(c), Fed.R.Crim.P., directs that search warrants can be served only in the daytime, unless the affidavits are positive that the property is in the house, in which case the judge or commissioner has discretion to authorize a nighttime search. Rule 4, Fed.R.Crim.P., dealing with arrest warrants, is silent on this subject, but no reason appears why the judge or commissioner cannot put reasonable limits on its execution, at least where the police state that they intend to enter a home to effectuate the arrest. As Rule 41 shows, entry at nighttime is viewed more gravely than a daytime entry, so the time of execution is clearly a consideration that the judge or commissioner can take into account. As noted, *403the facts in this case speak eloquently for the placing of reasonable limitations on the execution of warrants. 11 D.C. Code § 9S1 (1967), authorizing judges of the Court of General Sessions to issue warrants, is also silent on the subject of limitations to be placed on execution. Similarly, no reason appears why the judges of that court cannot exercise discretion to place reasonable limits on the execution of the warrant.
. Broad policy considerations not unlike the ones raised by this case may have been in the minds of the Framers when they wrote into the Constitution, as the third part of the Bill of Rights:
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner * *
. A wide variety of persons have power to issue arrest warrants. 11 D.C. Code § 981 empowers any judge of the Court of General Sessions to issue warrants. In fact, that statute quite explicitly envisions the judges being called upon at unusual times to exercise this important function:
“Each judge of the District of Columbia Court of General Sessions may, at any time, including Sundays and legal holidays, * * (Emphasis added.)