(dissenting):
The appellant was arrested June 5, 1965 for violation of the District of Columbia Narcotics Vagrancy Law, 33 D.C.Code § 416a (1967). A search pursuant to the arrest disclosed 56 capsules of heroin in the appellant’s pocket. He was indicted for violation of the federal narcotics laws and on October 11, 1966 was convicted. On December 23, 1968, 3% years after the arrest and search, this court held the narcotics vagrancy law unconstitutional. Ricks v. United States, 134 U.S.App.D.C. 215, 414 F.2d 1111 (1968).
There is no doubt that the facts known to the police gave them probable cause to arrest the appellant under the District of Columbia narcotics vagrancy statute. The search was incident to the arrest. All this is conceded. Yet, because the *846narcotics vagrancy law was later declared unconstitutional, the majority concludes that the search was unreasonable and therefore invalid. I cannot agree.
The police acted reasonably and in good faith to enforce a statute that had several times been sustained by the District of Columbia courts. See Brooke v. United States, 208 A.2d 726, 728 (D.C. App.1965); Harris v. United States, 162 A.2d 503, 505 (D.C.Mun.App.1960); Jenkins v. United States, 146 A.2d 444, 447 (D.C.Mun.App.1958).1 Certainly they could not be charged with predicting the future decisions of this court. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Nevertheless the majority invalidates their action, converting a reasonable search to an unreasonable one by making the decision in the Ricks case retroactive.
In a recent and closely analogous case the Supreme Court declined to apply a constitutional decision retroactively so as to invalidate a search and seizure. Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). In 1967 Williams was arrested and a quantity of heroin was discovered and seized in the course of a search incident to the arrest. The trial court sustained the search, the heroin was introduced in evidence, and Williams was convicted and sentenced. The search was valid under the law evidenced by United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) and Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947). Those decisions, however, were disapproved by Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, decided in 1969; and Williams argued that under the standards of the Chimel case the search was unreasonable. The Supreme Court held that the Chimel decision was not retroactive, and the judgment of conviction was affirmed. I think our Ricks decision should likewise be nonretroactive. I see no difference in principle between a decision invalidating standards previously established by the Supreme Court and a decision invalidating rules established by Congress.
In holding that the Chimel standard was not retroactive the Supreme Court observed that Williams was “duly convicted when judged by the then-existing law”, Williams v. United States, 401 U.S. 646, 656, 91 S.Ct. 1148, 1154, 28 L.Ed.2d 388 (1971), and that the new doctrine raised no question about his guilt or about the relevancy or probative effect of illegally seized evidence. These circumstances, the Court said, distinguished the Williams case from those in which a new constitutional doctrine is given retroactive effect because its purpose “is to overcome an aspect of the criminal trial which substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials”, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152 (1971). These observations I think are pertinent to the appellant Hall’s case. There is no doubt of his guilt under the federal narcotics laws. Moreover, he was not arrested on suspicion or on a pretext, but for conduct that plainly violated the narcotics vagrancy law; the police were not at fault in any way. The discussion by the majority of possible unreasonable and improper police applications of the narcotics vagrancy law is therefore beside the point. Cf. United States v. Raines, 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1968).
In short, I think the search of the appellant was reasonable when made and is reasonable still.
For these reasons, as well as for those expressed in Judge MacKINNON’s dissenting opinion, in which I concur, I respectfully dissent. I am authorized to say that Judges TAMM and Mae-KINNON concur in this dissent.
. See also United States v. McClough, 263 A.2d 48, 55 (D.C.App.1970); Wilson v. United States, 212 A.2d 805 (D.C.App. 1965), rev’d on other grounds, 125 U.S. App.D.C. 87, 366 F.2d 666 (1966); Rucker v. United States, 212 A.2d 766 (D.C.App.1965).