(dissenting):
I respectfully dissent. As I see it, the majority, falling back upon an eleven-year-old decision of the Supreme Court, essentially disregards the more recent teaching of Chimel v. California, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, we were quite clearly told that a warrantless search is impermissible except as it may be reasonably necessary to protect the safety of the arresting officers, or to preserve evidence from possible destruction. Here, the accused was handcuffed and arrested as soon as he stepped from the airplane. It is undeniable that he then, and thereafter, had no access to his suitcase. It is undeniable that the immediate search that followed his arrest was motivated neither by the possibility that the handbag or its contents constituted a threat to the officers, nor by the possibility that evidence contained therein was in danger of destruction.
The majority attempts to analogize Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), which permitted a warrantless search of an automobile as an alternative to impoundment, when the automobile had been seized incident to a lawful arrest and there was probable cause for the search. However, the factors that influenced that decision are not present in this case.
As Mr. Justice White wrote in Chambers,
“The circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily moveable. * * *
“Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the ‘lesser’ intrusion is permissible until the magistrate authorizes the ‘greater.’ But which is the ‘greater’ and which the ‘lesser’ intrusion is itself a debatable question and the answer may depend on a variety of circumstances.”
399 U.S. at 50-52, 90 S.Ct. at 1981.
*151Here, there can be no question as to that which would constitute the “greater” intrusion. The information which led the police to lay in wait for Mehciz was sufficient, as well, to justify their application for a warrant to search Meh-ciz’ baggage, and the information was received in ample time for such a warrant to have been issued. Moreover, suitcases, which have neither wheels nor independent motive power, do not provide only that “fleeting” opportunity for a search as may exist as to automobiles. Additionally, one’s need for an automobile in our mobile society, which surely is a factor in any determination that an immediate search is a “lesser” intrusion than impoundment until a warrant can be issued, does not apply with quite the same force to suitcases. Finally, to require that private baggage be impounded and a warrant obtained for its search would not likely impose an onerous burden upon investigating authorities, as might a similar rule with respect to automobiles. If Fourth Amendment questions are to be decided by analogy, then I should think it more appropriate to liken suitcases to houses, rather than to vehicles.1
It is, I hope, unnecessary for me to add that I hold no sympathy for Mehciz. Admittedly, my approach is conservative, but I cannot conscientiously ignore the tradition that judges of inferior courts are compelled, whether they like to do so or not, to apply the controlling principles of the Supreme Court. Our function is not to apply the law as we might like it to be, or that we might speculate that it may become, but to apply it as it is.
I would reverse.
. Even automobiles, of course, are not subject to search at the whim of an arresting officer. As was noted in Cliimel, “assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ Carroll v. United States, 267 U.S. 132, 133, 45 S.Ct. 280, 69 L.Ed. 543.” 395 U.S. at 764 n. 9, 89 S.Ct. at 2040. (emphasis added) This impracticality is absent here. Absent some reasonable assumption that Mehciz’ plane might be hijacked to Cuba or elsewhere, the police could be assured that he, and his suitcase — and their information was sufficient to alert them to the fact that only a suitcase or other package would be large enough to hold the quantity of LSD that Mehciz was supposed to be carrying— would be found at an exact time and place, and that, in the meantime, no opportunity to “quickly move out of the locality or jurisdiction” would possibly arise. Cf. Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).