(dissenting):
I respectfully dissent. Our court has previously written in language too clear to be misinterpreted that a United States Customs Agent must have probable cause to stop and search a vehicle for contraband in a non-border search situation. United States v. Jackson, 423 F.2d 506, 507 n. 2 (9th Cir.), cert. denied, 400 U.S. 823, 91 S.Ct. 44, 27 L.Ed.2d 57 (1970). See also United States v. Almeida Sanchez, 452 F.2d 459, 461 (9th Cir. 1971) (Browning, J., dissenting). Customs agents, unlike local or state police, are not “general guardians of the public peace,” Jackson, supra at 508, and their powers are expressly limited by statute. See 19 U.S.C. §§ 482, 1581; 26 U.S.C. § 7607. See also United States v. Glaziou, 402 F.2d 8, 14 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 89 S.Ct. 999, 22 L.Ed.2d 126 (1969); Alexander v. United States, 362 F.2d 379, 381-382 (9th Cir.), cert. denied, 385 U.S. 977, 87 S.Ct. 519, 17 L.Ed.2d 439 (1966).
The distinctions between the present case and those relied upon by the majority are, I think, quite patent. Wilson v. Porter involved investigatory detention by California police officers, not *912United States Customs Agents, and in Jackson, the court concluded that probable cause existed prior to the stopping of the defendants’ vehicle. I therefore cannot agree with my Brothers that those two cases control the disposition of this appeal.
Even more disturbing than the majority’s failure to recognize the fundamental distinctions discussed above is its bifurcation of the stop and search episode into two separate events. The supervising officer, Boldin, candidly admitted, in the hearing on the motion to suppress, that he intended, before the vehicle was halted, that it be searched and that he “figured [he] would arrest” Blackstock. Obviously, then, it was not the intention of the officer, when the car was stopped, to conduct a “limited inquiry in the course of routine police investigation [s].” Boldin stopped the vehicle for the purpose of conducting a search for contraband. Since there was absolutely no probable cause for initiating the search when the automobile was stopped, the search was invalid ab initio.
“Automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a war-rantless search of a residence or office. Brinegar v. United States, 338 U.S. 160 [69 S.Ct. 1302, 93 L.Ed. 1879] (1949); Carroll v. United States, 267 U.S. 132 [45 S.Ct. 280, 69 L.Ed. 543] (1925). The cases so holding have, however, always insisted that the officers conducting the search have ‘reasonable or probable cause’ to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search.”
Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538 (1968).
The majority’s holding, allowing an initially unlawful search to be validated by the fortuitous discovery of probable cause during the course of the illegal proceedings, subverts the Fourth Amendment’s unqualified proscription of unreasonable searches.
“Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travellers may be so stopped in crossing an international boundary because of national self protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.”
Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925); see Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) ; cf. Whiteley v. Warden, 401 U. S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) . See generally Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).
I would reverse.