concurring specially:
I join in holding that the evidence in question must be excluded, and therefore this case must be remanded for retrial. Since I take a somewhat narrower view of the case than does Judge Wright, in his opinion for a plurality of the Court, I concur separately. I will state my reasons for limiting the issues and for my disagreement with the minority.
First, this is not a typical traffic offense arrest. The crimes for which Robinson was initially arrested carry large maximum penalties,1 and the police regulations reasonably required that Officer Jenks take him into custody and transport him to the stationhouse.2 The Court unanimously agrees that this alone justifies a surface pat down, of the kind described in Terry v. Ohio,3 aimed at discovering indications that the arrestee has articles within his control that could be used to harm someone during the period of custody. The minority would justify this rule by upholding the reasonableness not of the search itself, but of the police “routine protective procedures.” If the pat down is permitted by those “procedures” it would be sustained. I believe that the Supreme Court, in Sibron v. New York,4 prohibited such an approach. Rather, as Judge Wright states,5 the pat down is justifiable as reasonable to protect the officer from any inherent and imminent danger and to allow him to discharge his responsibility for the arrestee.
Second, I believe that all the members of the Court are in substantial agreement as to what a police officer must believe before he can remove an object he feels while conducting a surface pat down. Judge Wilkey’s opinion for the minority approves a routine that allows “some flexibility based on the officer’s perception of risk.”6 It thus appears that the minority agrees — as I do — with the plurality that an officer may remove an unidentified object from the control of the arrestee if he reasonably believes that his failure to do so would pose a danger to him, the arrestee, or others. Neither Judge Wright’s nor Judge Wilkey’s opinion suggests either that the officer must experience the emotional state of fear before he may take such action, or that he may remove anything he feels.
But whether Officer Jenks’ state of mind satisfied this requirement of reasonable belief of danger is unclear, and the Court’s disagreement about the constitutionality of the instant search appears to stem from different characterizations of the facts. Although the police department instructs its officers that they should conduct a “full search” automatically in such a situation,7 and Officer Jenks testified that he “just searched” Robinson,8 he later added that he “knew [the lump] wasn’t cigarettes” *1110because, being a crumpled package, it didn’t feel like a cigarette pack through the jacket pocket.9 One might fairly infer either that Officer Jenks formed no belief at all, or that, while somewhat inarticulate in describing it, he did perceive that trouble might arise later.
This uncertainty need not be resolved. With the crumpled package in the possession of Officer Jenks, he could not have had a reasonable belief that it would be dangerous. There is no claim that the external appearance of the package gave probable cause to believe that Robinson had committed another crime. The minority argues that this action was justifiable because inspection of any “irregular” object, after it has been removed from the arrestee’s control, serves the “protective purpose” of the search.10 I agree that every part of a protective search, except the physical act of removing an object from the arrestee’s control, is a search for indicia that a weapon is present. In this sense, a protective search is a search for “evidence” — evidence probative of whether the individual has a weapon on his person. But to define the allowable scope of such a search by reference solely to whether the information sought is sufficiently probative of the existence of weapons would be to render scope limitations meaningless, and to miss the point of the exclusionary rule.
As the Supreme Court has said, there are many motives for police misconduct that the exclusionary rule will not affect.11 The primary deterrable motive for misconduct in cases like that before us is the desire to discover contraband. To suggest, as the minority does, that searches of objects that have been removed from the control of the arrestee are less intrusive than the most thorough Terry-type pat downs, and should therefore be approved as reasonable under the Fourth Amendment, is to lump together types of conduct with widely differing potential for abuse.
We may debate which of these two types of search is the more intrusive in a given case. If we acknowledge this uncertainty, and then focus our exclusionary rule inquiry on the police motivation to discover contraband, we are not thereby suggesting that we view the purpose of the Fourth Amendment as the protection of possession of that contraband. Rather we direct the rule at the overreaching that it is designed to prevent. As Officer Jenks’ testimony below demonstrates,12 there is no substantial motive to engage in unnecessarily thorough Terry-type pat downs.
Insofar as these two search techniques are alternative means to the common end of protection, the police should be required to use the one less likely to conceal a search forbidden by the Fourth Amendment. Indeed, if the Terry-type pat down shows itself also susceptible of misuse, we might have to consider whether there are other available means for police protection. For now, it suffices for me that when an officer conducts a post-arrest, in-custody search for protective purposes alone, he may not *1111search objects that he has removed, or can reasonably remove, from the control of the arrestee.
No more is required to dispose of this case. I will, however, briefly indulge my own concern — not about other eases, but about one issue in this case that we may avoid only because we exclude the evidence. Defense counsel has never questioned whether the original “routine spot check” that alerted Officer Jenks to the age discrepancy in Robinson’s identification was conducted in accordance with minimal constitutional requirements. While counsel did challenge, on disputed testimony, the scope of the subsequent inquiry into Robinson’s documentary identification, he and the District Court apparently accepted as controlling authority13 the decision of the District of Columbia Court of Appeals in Miney v. District of Columbia, 218 A.2d 507 (1966), which held that such stops were not arrests, and thus were within the power of the police despite the absence of enabling legislation. That case, which of course is not binding on the District Court, did not squarely face the constitutional limitations on such procedures, and it antedated the Supreme Court’s articulation in Terry of the Fourth Amendment’s strictures on “all intrusions by agents of the public upon personal security.” 14
This record does not disclose the circumstances surrounding Officer Jenks’ decision to stop Robinson.15 The applicable police regulations, however, may conceivably be interpreted as hints encouraging the use of spot checks to conceal Fourth Amendment violations.16 Although the officer is instructed to be prepared to articulate his reasons for the stop if questioned by the subject, the vague reasons suggested to him imply more than a routine check for license and registration documents. Additionally, the concept, if not the definition, of a spot cheek is that it is random — for example, pursuant to a formula of one vehicle in ten or fifty. It is the antithesis *1112of a stop based on reasons developed from the particular circumstances. Although the Court’s exclusion of the evidence in this case makes it unnecessary to consider this matter, the responsible officials may find it appropriate to consider anew whether the spot-check procedures currently in use are consistent with the Fourth Amendment.
WILKEY, Circuit Judge, dissenting, with whom concur Circuit Judges TAMM, MacKINNON and ROBB: The search conducted in this case was reasonable in both justification and scope. Before proceeding to a detailed analysis, let us briefly put these two issues in perspective.
A.
With reference to justification for the search, it must be realized at the outset that the frequent use of the terms “traffic violation” or “mere motor vehicle regulation” in the majority opinion serves only to confuse the analysis of what search was proper in this case with what would be proper in the circumstances of a truly “routine” traffic offense — such as running a stop sign, exceeding the speed limit, etc. — which all of us at one time or another may commit. Robinson did not inadvertently slide through a red light or creep above the speed limit; he had had his driver’s permit revoked, he had obtained a new permit by deliberately falsifying his application, and he was operating a vehicle without a valid permit. One is a statutory offense defined by Congress, the other a violation of a District of Columbia ordinance — both carrying penalties of fines and up to 10 days in jail or up to one year’s imprisonment.1
Under police regulations Officer Jenks could not permit Robinson to go on his way with a summons, as the ordinary citizen who had been guilty of only a truly routine traffic violation. Officer Jenks was obligated to arrest and take custody of Robinson as he would have a burglar or armed robber caught flagrante delicto.2 Before the officer could take Robinson into custody in his patrol car, he was required by police standard operating procedure to search the man arrested.
B.
So we have here a search justified by a full custodial arrest, not a “stop” for investigation, and a search whose scope is related to the problem of custody, not just a “frisk” for protection while an officer and suspect are conversing on the street.
With reference to scope of the search, let us also realize at the outset that the scope of the search involved here in no way remotely approached the outer limits of permissibility sanctioned by the Supreme Court in Terry v. Ohio 3 for a “frisk” after a “stop.” The contraband heroin was found in the outer pocket of Robinson’s car coat, not in an area of the body necessitating a highly objectionable invasion of privacy in order to discover it. This is the evidence the majority would order suppressed on the ground the search was ««.reasonable by Fourth Amendment standards. Since this search underlies Robinson’s conviction — reconviction on a new trial without the heroin in evidence would be an impossibility — a brief review of the exact sequence of events is in order.
*1113C.
The arrest occurred at 11:10 p. m. in a not too well illuminated residential area in Southeast Washington. After the arrest, in accord with the practice employed in over three thousand prior arrests for such offenses,4 Officer Jenks advised Robinson of his rights and began what is known in standard police parlance as a “field type search” for protective purposes incident to a “full custody arrest.”5 When Officer Jenks placed his hands on appellant’s chest, he felt something in the outside left breast pocket of Robinson's “car coat.” Because the coat was of heavy material, Officer Jenks could not determine either the size or the consistency of the object. In order to find out what the object was, he put his hand in appellant’s pocket, which was open, and pulled out a “wadded-up” cigarette pack.
One thing was clear, this package did not contain cigarettes; Officer Jenks could feel “objects” inside, he still could not tell what it contained. He then opened the package and discovered that it contained gelatin capsules, later tested to be narcotics. After seeing the capsules, probably containing contraband, he put the package in his own pocket and continued the protective search.
I. A Search Incident to Arrest was Permissible Here
A.
The search conducted in this ease must be tested against the long-established doctrine upholding the constitutionality of a warrantless search incident to a lawful arrest. In a recent treatise, the general rule concerning such searches was aptly stated as follows;
[U]pon a search incident to a lawful arrest the police may search for and seize weapons by which the prisoner may injure the officers or others or effect his escape, incriminating articles connected with the crime as its fruits or the means by which it was committed, also stolen property and other items which it is unlawful for the prisoner to possess, i. e., contraband. In connection with such a search the officers may seize not only evidence tending to establish the crime for which the arrest is made but also evidence of other crimes.®
Such searches incident to arrest are extremely common, outnumbering many-fold searches covered by warrants, a fact which is usually ignored or misstated.6 7 Probably the practice is “as old as the institution of arrest.” 8
*1114The constitutionality of such a procedure cannot be seriously challenged.9 Particularly with regard to the protective purpose of such a search, the absence of a warrant is justified by the emergency created by the arrest itself. Indeed, it has been suggested by a noted scholar that the framers of the Fourth Amendment’s search provision considered immediate search of an arrestee inherently reasonable, and viewed the warrant as a not entirely satisfactory way of regulating those searches which might be unreasonable because they did not accompany a valid arrest.10
B.
The search conducted in this case clearly fits within this general doctrine of search incident to arrest. Without question, this was a valid arrest. It is also clear that the arrest in this case was not a mere pretext for the search.11 Officer Jenks was not a narcotics officer who manufactured a reason for the arrest in order to establish grounds for a warrantless search for suspected contraband. To the contrary, he had a special interest in the exact type of arrest made in this case.12 He was legitimately interested in tracking Robinson down for driving after revocation. Since the arrest originated with this valid purpose, and was legally consummated, the search must be viewed as having been incident to the arrest rather than the reverse.
Further, this search was in fact undertaken with the permissible purpose of protecting both the officer and the prisoner from the potential of violent use of concealed weapons. Officer Jenks testified that he understood that protection was the major reason police standard operating procedures require a search in these circumstances.13 He knew that small deadly weapons could be concealed on Robinson’s person. Indeed, he vividly recalled an instance in which a fellow officer was cut by a prisoner’s razor blade which had gone undetected during an arrest.14
Although the record does show that Officer Jenks took steps to “control” the prisoner15 and understood the protective purpose of this routine search, there is no explicit indication that he was ever actually in fear of violence from Robinson. However, a purely subjective test of the presence or absence of personal fear on the part of the arresting officer does not determine the constitutional validity of this search incident to arrest and custody.
It is true that in examining the permissible grounds for a limited search *1115without arrest, a “stop and frisk,” the Supreme Court in Terry v. Ohio set out a requirement that there be actual, articulable fear of danger.16 Robinson is not a “stop and frisk” situation; the Terry test with reference to fear as a predicate or justification for search does not apply because there was a valid arrest in Robinson’s ease. However, the rationale of Terry does support this search. According to Terry, one of the factors which may be considered in testing the reasonable need for a protective search is an anticipation of danger based on the officer’s experience.17 The fact of Robinson’s arrest, not any subjective feeling of fear by the individual officer, brought this case under police procedures requiring a protective search. These standardized procedures represent the distillation of the experience of the entire police force, not just that of a particular officer. That experience obviously produced the reasonable inference that the act of custodial arrest itself, such as we have here, does create a potentially dangerous situation, and strict regulations were devised and promulgated to deal with it.
The training of a police officer, like the training of a soldier, must be designed to maximize simplicity, clarity of instructions, and standardization of procedures. For his own protection the soldier is taught to do things instinctively; he is drilled repeatedly in certain procedures until even in times of great stress he reacts automatically by doing the correct thing. In part, the same is true of the police officer; he is taught certain standardized procedures for his own protection, so that in time of stress he will instinctively take the correct action.18
For a police officer, the “correct action” is designed not only to protect the officer, and other persons, but to prevent unjustifiable intrusions into citizens’ private affairs. While search and seizure cases are frequently viewed as the classical confrontation of the rights of the individual versus the rights of society, I cannot stress this too strongly: The uninstructed individual judgment of each policeman on every situation ad hoc is likely to result in more violations of individual rights than will obedience to carefully prescribed standard procedures.
Indeed, the availability of such standard operating procedures, based on a reasonable general inference, may well be exactly what helped keep fear from interfering with Officer Jenks’ effectiveness. We should not let the fact that an officer was operating in accordance with routine protective procedures, rather than out of personal fear, become the factor determinative of the reasonableness of his actions. To the contrary, this circumstance merely changes the question which faces the court from the reasonableness of the officer’s suspicions to the reasonableness of the protective routine he followed.
Focusing on the reasonableness of the routine serves the valuable function of providing a more objective standard for judicial review and police guidance. Illusive and unreliable inquiry into the officer’s emotional state would be avoided. The difficult inquiry into emotions may be necessary in Terry situations where it is the only available test of reasonableness. In contrast, this routine search incident to custodial arrest more nearly resembles the case of an officer acting pursuant to the guidelines set forth in a search warrant. No personal suspicion of the presence of evidence is required of the officer, if he stays within the pre-set limits, in such situations. The prior determination of reasonable *1116grounds to search and of the reasonable scope of the search is what is at issue.
C.
Judge Wright’s opinion rests on the proposition that, regardless of actual police practice or regulations, any search incident to a “routine traffic arrest” is, absent special circumstances, unreasonable.19 Given the large number of police injuries which have accompanied what at first appeared to be routine automobile stops, I do not accept that proposition.20 Furthermore, although this was a traffic arrest, it was not minor; it was for a serious offense, and the majority opinion at footnote 18 so admits. Aside from these two arguments, more convincingly and to the point, a careful analysis of the possible rationales for a limit on searches incident to minor traffic arrests makes it clear that this particular arrest and search does not fall within any such limited rule.
To brush aside the argument usually first advanced, the fact that most traffic offenses, as is true of this one, have no fruits or instrumentalities justifying an evidentiary search is simply irrelevant. This was not an evidentiary search.21 It cannot therefore be either justified or condemned because there was no potential for the discovery of evidence.
Another argument for prohibiting searches incident to traffic arrests is the temptation to use such minor infractions, of which anyone may be guilty at some point, as a pretext for the search which follows. However, unlike speeding, driving after revocation is not the sort of offense which is so common that it could readily serve as a vehicle for pretextual arrest. In addition, as discussed above, there is absolutely no basis for concluding that this arrest was in fact pretextual.
A third argument suggests that since minor traffic arrests are so numerous, accompanying searches would create intense community resentment. If conducted in all such cases, the searches would be viewed as unnecessary harassment. If conducted only in some cases, with the search justified by arrest rather than the grounds outlined in Terry, the searches would probably create a suspicion, whether or not justified, of discriminatory harassment. However, it must once again be remembered that the offense prompting the arrest here, driving after revocation, is not a common or insignificant offense.22 It is a serious crime for which, according to standing police orders, the suspect must be placed *1117under full custody arrest.23 A grave loss of liberty is inevitable. The further intrusion of a limited search could hardly add significantly to Robinson’s sense of resentment. And because the offense is rare and serious, the consequences he suffers will not become commonplace.
Finally, and most importantly, a rule barring searches in the context of minor traffic offenses essentially rests on the conclusion that no reasonable inference of danger can be drawn in such instances. That is simply not true in this case, and the court’s entire position, invalidating this protective search, rests on the false premise that there was no reason for protection.
That premise is false for two principal reasons: First, although the nature of the offense here may not in itself demonstrate a propensity to aggressive violence, its seriousness does indicate that the arrestee will have a strong motive to escape from arrest. The Congress provided that driving after revocation can be punished by a fine of as much as $500, a year in jail, or both.24 In addition, the deliberate commission of one such serious offense does reasonably suggest the possibility that the suspect may have other strong reasons for wanting to avoid police custody.
Second, as noted above, a police General Order requires that one suspected of driving after revocation must be placed in full custody arrest and taken to the police station. This procedure, reasonable in itself because of the likelihood that the suspect will not respond to a mere citation, necessarily placed the officer in proximity to his prisoner for a considerable period of time. It must be distinguished from the very brief encounters associated with either a Terry stop or a normal traffic citation. Both a strong motive to escape and prolonged contact obviously raise the danger that the prisoner will be willing and able to reach concealed weapons and use them against the officer.
In short, whatever reasons there may be for a rule barring searches incident to minor traffic arrests, those reasons constitute no logical, relevant rationale on which to invalidate a protective search following apprehension for a serious offense, involving custody of a possibly armed prisoner, which we admittedly have here.
II. The Search Was Reasonable in Scope
Having concluded that a protective search was justified under these circumstances, I would also hold that this particular search did not go beyond the permissible scope of an inquiry supported by this justification.
The withdrawal of the cigarette pack from Robinson’s pocket was clearly permissible. Beginning with the least intrusive step possible, a “pat down” of Robinson’s outer clothing, Jenks came upon an object which could have been a concealed weapon. Jenks could not tell exactly what the object was. But testimony of a concealed weapons expert at the remand hearing makes it clear that a great many deadly or incapacitating weapons could have been concealed in a pocket the size of Robinson’s in such a way that the pat down could have discovered their presence but could not have revealed whether they were weapons, or indeed whether they were hard or soft. In an amazingly graphic demonstration the expert showed that he had concealed upon his person twenty-five weapons “that could kill or incapacitate.” 25 It should be noted that one of the weapons produced, a .22 pistol *1118made from a small aluminum tube, was in fact concealed in a cigarette package.
Even after Jenks was able to feel the size and texture of the cigarette pack inside the pocket, his remaining uncertainty was legitimate. He could have squeezed the pack while it was still in Robinson’s pocket. But all that would have told him was that the “objects” inside were definitely not cigarettes. The possibility remained that they were any number of harmful objects, from small blades to live bullets. That possibility is exactly what the routine protective search procedure was designed to eliminate.
With the question of potential danger unresolved, Officer Jenks’ withdrawal of the package from the pocket was entirely necessary and proper. As previously stated, the tests established under Terry do not necessarily apply here. But both “frisks” and this search incident to arrest share a protective purpose. Since the risk of violence is probably greater in the case of a full custody arrest than it is in the case of a Terry stop, the search here should be allowed to be at least as thorough. So it is significant that Jenks’ action would be permissible even if the standards established in Terry did apply.26
To be safe, the arresting officer must not only discover potential weapons but also confirm the dangerous nature of the weapon and disarm the arrestee. A pat down would be totally worthless if the arresting officer were prohibited from going further once he had discovered the possibility of unknown danger. A requirement of absolute certainty as to the existence and nature of a weapon before the officer could explore further would assure that any cleverly disguised device remained in the prisoner’s control.
B.
It also follows that the opening and inspection of the cigarette pack was within the permissible scope of a reasonable protective search incident to arrest. It is established that a search can only remain allowable if each part of the procedure is reasonably related in scope to the justification for its initiation.27 This last phase of the search meets that test.
Even when the cigarette pack was visible, the nature of its contents remained unresolved. It could have contained weapons.28 It clearly did not appear to contain cigarettes. Of course, since the package was now in the officer’s possession, any risk of the prisoner’s use of a weapon in this package had been eliminated. But further inspection of the package was still justifiable as a protective measure. If the package had contained a razor blade, or live bullets, the officer would have been alerted to search Robinson much more thoroughly since the possibility of there being other weapons concealed on his person would increase.
It is highly important to note at this point that Officer Jenks’ peek into the cigarette pack had the same purpose and function as every other step in the pat down. Initially, when the arrestee stands before the officer, he contains a potential for danger, quantum unknown. The officer’s prescribed search routine is designed first to discover and then to eliminate that potential for danger. He has the right, unquestioned by the ma*1119jority here, of making the type search authorized by the Supreme Court in Terry in a stop-and-frisk situation. In a full custody arrest situation, Robinson’s case, the officer can legitimately be even more thorough, the exact scope depending on the indicia of danger he encounters in his search.
With the possible exception of confiscation of a discovered weapon, everything the officer does during a pat down is aimed at discovering indicia of potential danger. Jenks’ routine was designed both to neutralize the individual weapons discovered and to obtain their warning that other potential danger might be present. The fact that the potential weapon in the cigarette pack has been removed from the arrestee’s control simply does not destroy its function, shared with that of additional indicia for which the officer can clearly continue to look, as a clue to further danger.
When Officer Jenks found the cigarette package — which clearly did not contain cigarettes — the basic overall question he had set out to answer was still unresolved, what, potential danger did the prisoner in custody represent to Jenks and others? If the cigarette package had appeared to contain cigarettes, on these facts alone in this case, Jenks might have been unjustified in opening the package, his inquiry in this sector would have been satisfactorily resolved.29 But it was certain the package contained something else besides cigarettes, Jenks knew from his training it could have been one of several different type weapons, the potential of danger — the original motivating question of the whole protective search — could not bé resolved without looking into the package, and so he did.
This action flowed logically and naturally from the whole rationale of a protective search, and was as completely justified as initiating this protective custodial-arrest search originally.
Officer Jenks specifically testified that the nature and scope of his protective searches varied depending on how he perceived the risk.30 When the mysterious package was found, Jenks was conducting a face-to-face search of the type used when less danger is perceived. Discovery of one weapon would very likely have prompted the protective measure of turning Robinson around and placing him with his hands against a wall or the car for a more thorough “pat down” search. Thus, the potential contents of the package were highly relevant to Jenks’ legitimate self-protective purposes. Since the cigarette package gave notice of irregular contents, and could have revealed hidden danger, Jenks’ inspection, and the routine commanding it, should be held to fall fully within the justifiable scope of a protective search.
The routine Officer Jenks followed here allows some flexibility based on the officer’s perception of risk, and this we should approve. Such procedures may well spare those who legitimately appear harmless from the indignities of as full a search as might be permissible in any given instance. However, that sort of flexibility would be impossible unless the officer’s routine allows investigation of the unusual and suspicious in order to *1120determine what level of risk in fact exists. In short, the officer should not be allowed to manufacture, nor should he be forced to ignore, those alert signals which indicate what degree of thoroughness will produce adequate protection.
III. Conclusion
I reach my conclusions in this case on the basis of several fundamental propositions concerning the application of the exclusionary rule which deserve explanation. Exclusion of admittedly probative evidence represents a sacrifice of the social values of accurate judicial decision-making and punishment of the discovered crimes. This sacrifice is made in order to deter unreasonable intrusions by the police. Any application of the exclusionary rule must necessarily take this conflict of values into account. The offensiveness of the intrusion and the likelihood of its being deterred must be balanced against the sacrifice to truth and law enforcement.31
We should be mindful, therefore, that the case before us involves a type of intrusión far less offensive to the average person than would be the inspection of private papers or the thorough search of a home. Indeed, Jenks’ peek into Robinson’s cigarette pack is a far cry from what Terry allows, even without the added dangers stemming from a full custody arrest. In Terry the Court described a permissible “frisk” in these terms:
[T]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.32
It is utterly inconceivable to me that Judge Wright can take this as the accepted standard for a permissible “frisk”' — but take it they must because this is the Supreme Court’s standard— and yet hold impermissible Officer Jenks’ search of the contents of the outer pocket of Robinson’s car coat, a protective search made after arrest by the *1121officer alone at 11:10 p. m. as a prelude to taking custody and transporting the prisoner.
If we accept the Terry standard of constitutional “reasonableness” for a “stop and frisk” situation, Judge Wright’s holding that the step-by-step search after arrest of Robinson’s open outside breast pocket was treasonable seems to me logically indefensible. Here we can profitably revert to the fundamental principle that the Fourth Amendment condemns only treasonable searches. If a probing of a person’s most sensitive and private areas can be justified for protective purposes, the outer pocket of a car coat (whether specifically listed by the Supreme Court or not) should be considered within the orbit of reasonable search for that same protective purpose.33
*1122We should also be mindful that the exclusionary rule’s primary goal, deterrence, will not be well served by the decision that this search was unreasonable. If society highly values the safety of its police officers, they probably and understandably value it even more. Limits to their self-protective routines must, of course, be drawn; but it is one thing to ask the officer to pass up evidence and quite another to ask him, by foregoing a minimally intrusive technique, to expose himself to a greater and very real risk of bodily harm.
Finally, we should be aware that a primary flaw in the development of the exclusionary rule has been a continuing abstraction of analysis which puzzles judges in their chambers and requires a hairline constitutional analysis literally impossible of application by the officer in the field. Many police departments have attempted to deal with this problem by training their officers in a set routine, which has evolved from both court decisions on the limits of allowable search and police experience with (among other things) the risks inherent in different situations. This dissent has stressed that this is a sound approach which will tend to minimize intrusion into individual privacy (much more than would a policy of ad hoc individual judgments espoused by Judge Wright) while maximizing safety for all society.34
The fact that Officer Jenks was following routine police procedure of course does not validate either the decision to search or the scope of the search. The reasonableness of that routine itself is precisely what this court must consider. What the presence of the routine does provide is a shift in the focus of the court’s inquiry from the personal fear of the officer to the codified judgment of his superiors — the established" routine as followed in this case.
Officer Jenks’ statement that he “just searched him,” which seems highly important to Judge Wright’s opinion, must be viewed in light of other testimony indicating that the absence of personal fear of danger resulted from the very fact that such protective searches had actually become routine for this officer. The record shows that Officer Jenks knew this search routine was for protective purposes. Viewed in that light, he was not indulging in mere “curiosity” but “routine curiosity with a protective purpose.”
Since the fact of custodial arrest and the protective purpose present here validate the decision to search, the valid scope of the search is the other issue to be considered. The look inside the cigarette pack, commanded by routine, served a protective function which must be weighed against its intrusiveness. Indeed, as emphasized above, Officer Jenks’ peek had the same purpose as every other step in a pat down — discovering indicia of potential danger. Here, as I have set forth the rationale of a constitutionally “reasonable” search, the physical perceptions of the officer, as opposed to his subjective emotional state, become important. He had legitimately come across an unusual and irregular object — the precise nature of *1123which he could not determine. The object could have contained weapons — the discovery of which would counsel further protective measures. A police routine designed to guide appropriate action when doubt is present could counsel one of two actions at that moment. It could require that he always assume the worst and immediately spread-eagle the arrestee during the rest of the pat down. Here, it instead suggested further examination of the irregular object. In addition to being the natural human response, this course avoids unnecessary and embarrassing spread-eagle searches. It is minimally intrusive on the arrestee’s right to privacy. That right of privacy, not the right to conceal contraband, is what the Fourth Amendment protects.
I conclude that the search conducted by Officer Jenks under such a standard operating procedure falls within the permissible scope of any reasonable self-protective search routine.
Robinson’s conviction should be affirmed.
. See, e. g„ 40 D.C.Code § 302(d) (1967).
. See General Order No. 3, Series 1959, Metropolitan Police Department, April 24, 1959 (quoted in Plurality Opinion at 23 n. 23).
. 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. 392 U.S. 40, 62, 88 S.Ct. 1889, 1902, 20 L.Ed .2d 917 (1968) (emphasis added) :
The inquiry under [the Fourth Amendment] may differ sharply from the inquiry set up by the categories of [the New York stop-and-frisk statute]. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. 1 Ye must confine our review instead to the reasonableness of the sewrehes and seizures which underlie these two convictions.
Compare id. at 70-71 (Harlan, J., concurring) .
. See Plurality Opinion at 1098.
. Minority Opinion at 1119.
. Remand Hearing Transcript 32.
. Id.
. Id. 42.
. See Minority Opinion at 1119.
. See Terry v. Ohio, 392 U.S. 1, 13-14, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. Officer Jenks testified on cross examination as follows:
Q. You are not aware of any police department regulation that prohibits you from putting your fingers inside a man’s belt or probing in the groin area for weapons like this, are you?
A. I don't go into a thorough search in that area.
Q. Do you know of any police department regulation that prohibits you from doing so?
A. No sir.
Q. So you could do exactly that, you could probe and feel into every part of my body where that weapon might be concealed?
A. No, not exactly. That is not fair.
Q. What would prohibit you?
A. I could hide that around my groin where it would be embarrassing to search for it?
Remand Hearing Transcript 41.
. Trial Transcript 42, 44-45, 62-63.
. Plurality Opinion at 12 (citing Terry v. Ohio, 392 U.S. 1, 18 n. 15, 88 S.Ct. at 1878 n. 15 (1968)).
. Trial Transcript 6-7 (Officer Jenks testifying):
Q. Now, officer, please, state the circumstances under which you saw Mr. Robinson.
A. He was operating a ’65 Cadillac, D. C. registration, 653013 on U Street at 9th Street, Northwest. I was in a marked patrol car, and we stopped the vehicle for a routine spot cheek. . . .
Q. For what purpose did you stop Mr. Robinson?
A. Routine spot check, sir.
. Metropolitan Police Department, Memorandum: Subject: Traffic Law Enforcement (June 9, 1964), states in pai-t:
A part of the program is to make “spot checks” of motorists with a view of [sic] detecting persons operating without a valid driving license. These checks are not in the form of “road blocks” and this memorandum shall not be construed as authorization to conduct “road blocks” for the purpose of examining the credentials of a driver. “Spot checks” shall generally be made in connection with some minor violations or other suspicious circumstance.
(Emphasis added.) The problem apparently grows as information moves down through the police bureaucracy. Second District, Metropolitan Police Department Memorandum No. 237, “Traffic Check System to be used by members of the Second District in the prevention of crime,” (December 18, 1969), states in part:
This “Traffic Check” system, along with a more strict enforcement of the Truancy Laws and the Anti-Loitering Regulations, plus the effective use of the new “Stop and Frisk” rules, can be of invaluable aid to us in this field. There is no doubt that excellent results can be obtained if all members make a concerted effort with this traffic check system, using good police judgment and common sense in stopping and checking motorists in our area under suspicious circumstances and/or at late and unusual hours. . . . Members of this command must be tactful and courteous in these contacts and must be prepared to explain to the motorist the reasons for this check.
(Emphasis added.)
. 40 D.C.Code § 302(d) (1967) ; Traffic Regulations of the District of Columbia § 157(e). The minimum penalties for the Congressional statute are equally significant — .“not less than $100 or imprison [ment] [for] not less than 30 days.” A minimum of 30 days in jail is no routine penalty.
. Metropolitan Police Department General Order No. 3, Series 1959 (24 April 1959).
. “[T]he officer must feel with sensitive fingers every portion of the prisoner’s body. A thorough search must be made of the prisoner’s arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.” 392 U.S. 1, at 17, note 13, 88 S.Ct. at 1877, note 13 (1968).
. Transcript of Proceedings before the Honorable William B. Jones, U. S. District Judge, on remand of Case No. 23,734 (U. S. Court of Appeals), 4 October 1971 (hereafter “Tr.”) at p. 152. The description of the search throughout this opinion is taken generally from Officer Jenks’ testimony at the hearing on remand and from the findings of the District Judge, Tr., pp. 99-100.
. The standard procedure, followed in this case, was described at the hearing on remand by Sergeant Dennis C. Donaldson, a police instructor, Tr. 99-100.
. E. Fisher, Search and Seizure (1970), at 90-91. See also Fisher, supra, Chapter I-G-, Secs. 50-54, 47 Am.Jur., Searches and Seizures, Sec. 19; 5 Am.Jur.2d, Arrest, Sec. 73; 79 C.J.S. Searches and Seizures §§ 67(a), 68(a), 69(a) ; Notes, 82 A.L.R. 782, 74 A.L.R. 1387, 51 A.L.R. 424, 32 A.L.R. 680; “Right of search and seizure incident to lawful arrest, without a search warrant”; Note, 169 A.L.R. 1419: “Search incident to one offense as justifying seizure of instruments of or articles connected with another offense.”
. Judge Wright’s opinion here states the usual flat error regarding the established facts. “Ordinarily, a warrant must be obtained by a police officer before he may make a search” (p. 1090). “Ordinarily” just isn’t true. See Telford Taylor, Two Studies in Constitutional Interpretation (1969), at 48-49. In 1966, the New York police obtained 3,897 search warrants and made 171,288 arrests (of which only 366 were made pursuant to an arrest warrant). Statistics from other cities are comparable. American Law Institute, Model Code of PreArraignment Procedure, p. 157 (Proposed Official Draft No. 1, 1972). The only possible inference from these figures is that, as a practical matter, searches incident to arrest (as opposed to those with warrants) play the vastly predominant role in police practice.
. Taylor, op. cit. at 28.
. The rule which allows a search incident to an arrest, as a “reasonable” one under the Fourth Amendment, has been stated by the Court many times and followed by the state appellate courts “in innumerable instances.” Fisher, supra, note 6, at 177. See, e. g., Sibron v. New York (Peters v. New York), 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); Draper v. United States, 358 U.S. 307, 314, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Rabinowitz, 339 U.S. 56, 65-66, 70 S.Ct. 430, 94 L.Ed. 653, disapproved on another point in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914).
. Taylor, op. Cit. at 39-41.
. Judge Wriglit accepts this fact at footnote 3 of his opinion.
. Tr., pp. 11 and 13.
. Tr., p. 32.
. The District Judge found that “prior to April 23, 1968 [the date of Robinson’s arrest], Jenks . . . knew of a police officer being cut by a razor blade in the hands of one arrested while the officer and the arrested person were at a police call box.” Tr., p. 153. Officer Jenks testified that the case “will always stay in my mind because of the outcome of what happened to the officer.” Tr., p. 29.
. Tr., p. 16.
. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. lUd.
. Sergeant Donaldson testified that officers are taught to conduct an automatic routine protective search. They are discouraged from endangering themselves and others by pausing to weigh all the possible technical questions and probabilities during the stressful and potentially dangerous period of arrest. Tr., pp. 103-106.
. See People v. Simon, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205 (Cal.Sup. Ct.1972) (en banc) for another recent expression of this argument.
. The Supreme Court has recently noted that approximately 30% of the 120 policemen who were murdered by killers wielding guns died as a result of the police officers’ approaching a suspect seated in an automobile. Adams, Warden v. Williams, 407 U.S. 143, at 148, note 3, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). Further, the International Association of Chiefs of Police in their Annual Law Enforcement Casualty Summary for July 1970 to June 1971 report that during that period 61 casualties were sustained by police officers responding to or handling traffic problems, and an additional 100 officers sustained injuries in the course of making traffic arrests, Annual Law Enforcement Casualty Summary, figure 9, at p. 12. Taking into account these observations, it is difficult to disagree with the conclusion reached by the International Association of Chiefs of Police in their Summary, that “The innocuous traffic stop, a routine activity for most police officers, remains a major police fatality category. The killing of eleven officers engaged in traffic activity during the period attests to the potential for danger present in this activity.” Id. at 27.
. The Government has abandoned the argument that Officer Jenks might have found that notice of revocation which had been sent to Robinson many years before this arrest.
. See footnote 24 and the accompanying text.
. General Order No. 3, Series 1959, Metropolitan Police Department, 24 April 1959. The General Order is reproduced in part in Judge Wright’s opinion at footnote 23.
. 40 D.C.Code § 302(d). This offense was created by an Act of Congress, and therefore must be distinguished from most traffic offenses, which are only set out in regulations promulgated by the District of Columbia City Council and approved by the Mayor-Commissioner. See 40 D.C.Code § 603.
. Tr., p. 61. See Judge Wright’s footnote 28.
. The Court in Terry specifically notes that the officer did not and should not go beyond the outer surfaces of the arrestee’s clothing if “he discovered nothing in his pat-down which might have leen a weapon.” 392 U.S. 1, 30, 88 S.Ct. at 1884 (emphasis added). The presence of actual uncertainty in the face of warning signs is the line that distinguishes a legitimate protective “frisk” in the stop situation from a general exploratory search. See also Sibron v. New York, 392 U.S. 40, 67, 88 S.Ct. 1889, 20 L.Ed. 2d 917 (1968).
. Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
. The District Judge found that the crumpled up cigarette package could have contained a razor blade. Tr., p. 155. See footnote 25 above.
. There is an indication in the testimony of Mr. Newhouser, the weapons expert, that standard police practice in fact draws this sort of line and would not command further inspection, or even removal, of what appeared to he a regular cigarette package. Tr., pp. 79-80. To the extent that standard police procedure might counsel a broader search, such as inspection of regular-appearing objects after their removal from the arrestee, that routine would be suspect. Contrary to Judge Wright’s suggestion at his footnote 9, Officer Jenks was not conducting that sort of “full” search here. Rather, he was following up the clue provided by an unusual object. Starting with the overall regular appearance of any given arrestee, an arresting officer must of necessity progressively narrow the focus of his inquiry by glossing over what appears normal and satisfying himself with respect to objects, the appearance of which ho cannot explain, but which could contain clues of danger.
. Tr., p. 28.
. Chief Justice Burger has said that
The deterrence theory underlying the Suppression Doctrine, or Exclusionary Rule has a certain appeal in spite of the high price society pays for such a drastic remedy. Notwithstanding its plausibility, many judges and lawyers and some of our most distinguished legal scholars have never quite been able to escape the force of Oardozo’s statement of the doctrine’s anomalous result :
The criminal is to go free because the constable has blundered. A room is searched against the law, and the body of a murdered man is found. . . . The privacy of the home has been infringed, and the murderer goes free. People v. DeFore, 242 N.Y. 13, 21, 23-24, 150 N.E. 585, 587-588 (1926).
Suppressing unchallenged truth has set guilty criminals free but demonstrably has neither deterred deliberate violations of the Fourth Amendment nor decreased those errors in judgment that will inevitably occur given the pressures inherent in police work having to do with serious crimes.
I believe the time has come to re-examine the scope of the exclusionary rule and consider at least some narrowing of its thrust so as to eliminate the anomalies it has produced.
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, at 413, 418, 424, 91 S.Ct. 1999, 2013, 2015, 2018, 29 L.Ed.2d 619 (1971) (dissenting). What we should do here is to apply existing principles deduced from the decided cases and the fundamental rationale of the Fourth Amendment, leaving to the Chief Justice and his Associate Justices the task of “reexamin[ing] the scope of the Exclusionary Rule.” What we should not do in tire face of the Chief Justice’s and others’ widely expressed dissatisfaction with the broadened scope of the Fourth Amendment and the Exclusionary Rule is to narrow further the scope of what is a “reasonable” search and thus augment the impact of the Exclusionary Rule.
. 392 U.S., at 17, note 13, 88 S.Ct. at 1877 n. 13. The description is taken from Priar & Martin, Searching and Disarming Criminals, 45 J.Crim.L.C. & P.S. 481 (1954).
. I must respectfully suggest that Judge Wright’s opinion seriously misconstrues the American Law Institute position on searches like that of Robinson. Judge Wright asserts “the American Law Institute concludes that a police officer may not conduct a full search of an individual arrested for ‘a traffic offense or other misdemeanor, the elements and circumstances of which involve no unlawful possession or violent, or intentionally or recklessly dangerous, conduct. . . . ’ And this is so whether or not the offender is taken into custody.” The omitted part of ALI Search and Seizure, Section 230.2, reads: Provided, That this Section shall not be construed to forbid the search for dangerous weapons authorized by Section 110.2(4) of Part I if the circumstances described in Section 110.2(1) thereof are present at the time of the arrest.” Section 110.2, Stopping of Persons, (1) Cases in Which Stop Is Authorized, is not applicable here, because the circumstances described therein deal with justification for a “stop and frisk,” whereas in Robinson’s case we have a custodial search after an admittedly lawful arrest. Section 110.2(4) is somewhat illuminating but not directly applicable either:
(4) Prisk for Dangerous Weapons. A law enforcement officer who has stopped any person pursuant to this section may, if the officer reasonably believes that his safety or the safety of others then present so requires, search for any dangerous weapon by an external patting of such person’s outer clothing. If in the course of such search he feels an object which he reasonably believes to be a dangerous weapon, he may take such action as is necessary to examine such object.
This of course is virtually the Terry standard for a “frisk” after a “stop.” As made clear above, logically one cannot accept the scope of the “frisk” after a “stop” permitted by the Terry standard and reject the scope of the full custodial search for protective purposes after arrest made of Robinson here.
But if the majority wishes to resort to American Law Institute standards to sustain its holding that the cigarette package of heroin capsules should¡ be suppressed as evidence at the trial, I suggest resort to Section 290.2, Determination of Motions to Suppress Evidence of that same ALI Code of Pre-Arraignment Procedure :
(2) Determination. A motion to suppress evidence shall be granted only if the court finds that the violation upon which it is based was substantial, or if otherwise required by the Constitution of the United States or of this State. In determining whether a violation is substantial the court shall consider all the circumstances, including:
(a) the importance of the particular interest violated;
(b) the extent of deviation from lawful conduct;
(c) the extent to which the violation was willful;
(d) the extent to which privacy was invaded;
(e) the extent to which exclusion will tend to prevent violations of this Code;
(f) whether, but for the violation, the things seized would have been discovered ; and
(g) the extent to which the violation prejudiced the moving party’s ability to support his motion, or to defend himself in the proceeding in which the things seized are sought to be offered in evidence against him.
The inspection of the cigarette package contents from the outer pocket of Robinson’s car coat could hardly be termed a “substantial” violation, especially when ranged alongside the permissible limits of invasion of privacy set forth by the Supreme Court in Terry. But this question deals with the Exclusionary Rule, and this dissent does not rest on the question of the applicability of the Exclusionary Rule, rather on the premise that by accepted standards the search of Robinson should be held “reasonable” under the Fourth Amendment.
. Judge Wright’s opinion throughout is based on a subjective approach, i. e., whether the officer actually felt fear and acted on that in making the search. In so doing, I submit Judge Wright interjects the Terry requirements for a “stop and frisk” into a full custodial arrest situation, which is quite different, and which I urge can best be handled by a more objective, standardized routine approach. I say “best”, and I mean “best” for society, the officer, and the individual apprehended. But even if we should decide Robinson’s ease on the subjective standards of Judge Wright, what is reasonable in this case must in great part be judged through the eyes of a police officer, alone on a lightly traveled street at 11:10 p. m., not from the vantage point of anyone in an acadamic or judicial sanctuary. If hairline constitutional distinctions cause judges to divide 5-4 in their opinions, the police officer on the line, operating in accord with prescribed standard procedures, should get the benefit of the doubt, not the criminal with capsules of heroin boldly carried in his outer pocket.