(dissenting) :
I recognize and approve the Fifth Circuit practice of regarding as binding precedent prior decisions of other panels. It does not, however, seem to me to forbid that I, as a visiting judge, vocalize dissent on a matter of general importance. Present day airport search affects such a large number of persons, country-wide, that I wish to record my reasons for differing with the Fifth Circuit rule announced, without discussion, in United States v. Moreno, 1973, 475 F.2d 44, and United States v. Legato, 1973, 480 F.2d 408, and followed here, that Terry v. Ohio, 1968, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, authorizes the use of extraneous materials not within the purpose of the search, but fortuitously discovered in the passenger’s possession, to support a criminal prosecution. I fully agree with the court’s weighing of values to conclude that the search itself was authorized, but I feel that a more exact assessment should dictate an additional conclusion, namely, that viable use (I am not speaking of mere confiscation) should not be made of proceeds towards which the search was not, and could not have been independently, directed.
There can be no question, of course, as to the object of the search, or of the limited justification. The passenger was not under arrest, opening him to a total examination. Chimel v. California, 1969, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685. He had done nothing as an individual to afford probable cause for interfering with his right of privacy,1 but was merely exercising his constitutional right to travel, Shapiro v. Thompson, 1969, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600, in a manner he had a right to. As the Court has said of the Terry pat-down, “The purpose of this limited search is not to discover evidence of crime.” Adams v. Williams, 1972, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612. The general occasion justified the search, but no conduct of the defendant, and no governmental need, called for the government to receive a windfall.
In this circumstance I believe that while the peculiar nature of the social hazard justifies the search, due process demands that the imposition on the citizen be no greater than the occasion requires. We should take literally the caveat in Terry, “seizure and search [must be] reasonably related in scope to the justification for their initiation.” 392 U.S. at 29, 88 S.Ct. at 1884 (emphasis suppl.) See New York v. Sibron, 18 N.Y.2d 603, 605-608, 272 N.Y.S.2d 374, 219 N.E.2d 196 (Van Voorhis, dissenting), rev’d, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.2
*1281There is both a private and a public reason for this. As to the first, not only does it seem unfair for the government to profit from a circumstance that was none of the defendant’s making, but no hope of striking it rich should serve to lure the agent into a broader search than he would have chosen to make had hijacking materials been his maximum objective. Where special circumstances are allowed to reduce the ordinary conditions precedent to a lawful search there should be special safeguards to see that the opportunity is not abused. See New York v. Sibron, supra, 18 N.Y.2d at 605-608, 272 N.Y.S.2d 374, 219 N.E.2d 196.3 I believe the same prophylactic principle that dictates exclusion of property unlawfully seized, Mapp v. Ohio, 1961, 367 U.S. 643, 657-659, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Elkins v. United States, 1960, 364 U.S. 206, 217-218, 80 S.Ct. 1437, 4 L.Ed.2d 1669, should be employed to temper possibly overzealous airport searches. Such a rule would not only limit the decision to make, and the extent of, searches to what the justification permitted in the first place; it would isolate the procedure and guarantee to the public that the government is not using airport search procedure for other purposes, an offensive thought to any innocent person suffering the inconvenience.
Returning to United States v. Moreno, and United States v. Legato, supra, I cannot agree that my suggestion runs counter to Terry. In Terry the prosecution was for the sought-after weapon itself. In the companion case of New York v. Peters, 1966, 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595, aff’d sub nom. Sibron v. New York, 1968, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, where burglars’ tools, rather than a weapon, were found, the Court was careful not to decide the present question, pointing out that prior to the search there had been probable cause for arrest for attempted burglary, adequately justifying the seizure of the tools. It is true that I am advocating an unusual and narrow rule, but we are faced with an unusual and narrow justification for governmental interference.
Finally, if the foregoing is not to be supported, I do not accept defendant’s contention that, once he had reached the point of embarkation where inquiry and possible search procedures were openly in operation, he could choose to withdraw if he found the inquiry addressed to him not to his liking. United States v. Meulener, C.D.Cal., 1972, 351 F.Supp. 1284. The reasoning in Meulener, that if he then changed his mind, and elected to leave, “he would pose no danger to the passengers and crew on the aircraft,” 351 F.Supp. at 1289, greatly damages the prophylactic purpose of the search procedure. Such an option would constitute a one-way street for the benefit of a party planning airplane mischief, since there is no guarantee that if he were allowed to leave he might not return and be more successful. Of greater importance, the very fact that a safe exit is available if apprehension is threatened, would, by diminishing the risk, encourage attempts. Established search procedures are perhaps more valuable by what they discourage than by what they discover. I see no constitutional requirement, where a defendant knew by objective signs that he was incurring the possibility of a search, that he should thereafter be allowed to play- heads-I-win, tails-you-lose.
. While the Profile is said to be remarkably inclusive as an identifier, in camera inspection thereof suggests that many innocent persons might fit it exactly. And if the defendant revealed minor grounds for suspicion after the agent demanded his wallet, unless the demand was a priori justified it is axiomatic that the reaction to it could not supply justification ex post facto. Sibron v. New York, 1968, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917; Henry v. United States, 1959, 361 U.S. 98, 103, 80 S.Ct. 168, 4 L.Ed.2d 134; Johnson v. United States, 1948, 333 U.S. 10, 16-17, 68 S.Ct. 367, 92 L.Ed. 436.
. See, also, The Fourth Amendment and Housing Inspections, 77 Vale L.J. 521, 535 (1968), where the same suggestion was made with respect to blanket housing inspections justified only by “group probable cause.” Camera v. Municipal Court, 1967, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930.
. As one commentator has stated, “Where the policeman claims to have felt a hard object in the defendant’s pocket which may have been a knife but, upon delving into the pocket, he discovers some other type of contraband, [it may be] difficult to prove that the initial inference was an unreasonable or dishonest one, or that, in searching for the ‘knife’, the policeman conducted too extensive a search of the pocket.” The Supreme Court, 1967 Term, 82 Harv.L.Rev. 63, 185-86.