(dissenting):
I respectfully dissent. I do so for two distinct reasons.
The defendant was charged with the sale of cocaine in violation of 21 U.S.C. § 841(a)(1). These alleged sales occurred on January 24 and January 28 of 1972. Approximately three months later the agents upon seizure of defendant’s vehicle pursuant to 21 U.S.C. § 881(a) (4)-(b) (1) inventoried the seized vehicle and found (1) a one-pound, ten-ounce brick of marijuana; (2) fourteen plastic “baggies”; (3) a package of marijuana seeds; (4) a package of marijuana “stems”; (5) a sack containing six syringes and five hypodermic needles; and (6) a small *213scale. The trial court found this evidence was admissible in defendant’s trial on the ground that it was relevant to show intent at the time of the alleged sales. I think this ruling prejudicial. This court has held many times in the past that to show intent, the past criminal conduct must be similar in type to that for which the accused is indicted. See, e. g., Dranow v. United States, 307 F.2d 545 (8th Cir. 1962); Williams v. United States, 272 F.2d 40 (8th Cir. 1960). It is improper to admit evidence of a crime unrelated in any particular to the one with which defendant was charged. Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943); United States v. Christian, 427 F.2d 1299 (8th Cir.), cert, denied, 400 U.S. 909, 91 S.Ct. 153, 27 L.Ed.2d 148 (1970); United States v. Bucur, 194 F. 2d 297 (7th Cir. 1952). “If there is a genuine issue in the case as to . intent . . . relevant evidence of other crimes is generally admissible. But there must appear to be some real connection between the earlier conviction and the alleged crime beyond the allegation that both acts sprang from a vicious disposition.” Wakaksan v. United States, 367 F.2d 639, 645 (8th Cir. 1966) (citations omitted); see also Hurwitz v. United States, 229 F. 449, 453 (8th Cir.), cert, denied, 266 U.S. 613, 45 S.Ct. 95, 69 L.Ed. 468 (1924). The policy behind this requirement was set forth in Weiss v. United States, 122 F.2d 675, 683 (5th Cir.), cert, denied, 314 U.S. 687, 62 S.Ct. 300, 86 L.Ed. 550 (1941).
“The argument as to admissibility is purely from the point of view of the doctrine of chances. Wigmore says that the mind intuitively applies this process of reasoning, namely, ‘that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element to be the true explanation of them.’ ”
Here there was no similar act or offense shown. Assuming the evidence of defendant’s possession of marijuana was harmless, which to me in light of all attendant circumstances is tenuous, the evidence of defendant’s possession of the six syringes and five hypodermic needles was clearly prejudicial. What this has to do with the sale or distribution of cocaine three months before is vague and uncertain. The use of cocaine, unlike heroin, does not necessarily depend on injection apparatus such as needles and syringes, and even if it did, there is no showing that. defendant’s possession three months later is in any way related to any similar sale or transaction to the crime charged. The possession of the items does not show that defendant is a dealer in hard narcotics. This evidence did nothing more than to fasten the jury’s attention upon prejudicial matters, which allowed them to feel that the defendant, even if not guilty of the specific crime the government had charged him with, was a threat to society and should be punished.
A defendant charged with a criminal offense should be tried only on the facts relevant to the crime. When evidence of other acts or offenses is to be admitted for the collateral effect of substantiating “criminal intent”- — -the government should carry an exacting burden of showing close similarity in both time and circumstance to the offense charged in order to safeguard against the obvious prejudicial effect. This did not happen here. Cf. White v. United States, 294 F.2d 952 (9th Cir. 1961); Paris v. United States, 260 F. 529 (8th Cir. 1919).
However, assuming the evidence can in some way be rationalized as related to the offense charged, I would additionally rule that the evidence should have been excluded as illegally seized. The search is allegedly justified because of the seizure of the automobile pursuant to 21 U.S.C. § 881 and the reasoning of the Supreme Court in Cooper v. California, *214386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The pertinent parts of Section 881 read as follows:
“(a) The following shall be subject to forfeiture to the United States and no property right shall exist in them:
(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate, the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2) ....
“(b) Any property subject to forfeiture to the United States under this title may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdiction over the property, except that seizure without such process may be made when—
(1) the seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(4) the Attorney General has probable cause to believe that the property has been used or is intended to be used in violation of this title.”
The statutory authority under which the car is seized does not in itself make the warrantless search of the car reasonable. The test of the search is still one of reasonableness under the Fourth Amendment. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788 (1967); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The search of the car, some three months after the alleged offense in question, was not in any way “closely related” to the reason the defendant was arrested. There is no showing that there was any connection in point of time and circumstance between the offense and the search. Admittedly the officers did not have probable cause to search the vehicle. Under these circumstances, notwithstanding the consequences flowing from civil forfeiture and holdings which might validate belated seizures, there still remains the question whether a belated search is reasonable under the Fourth Amendment.
Under Cooper, supra, the Court held it was reasonable for officers who have lawfully seized an automobile to inventory it — thus validating the search. The difficulty with the present case is in resolving whether the automobile was lawfully seized. The statute requires that seizure of property may be only “upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court having jurisdiction over the property.” (Emphasis ours). No process was obtained here. The majority relies on the government’s claim that process is not necessary in the present case because the property to be seized fell under two of the exceptions listed in 21 U.S.C. § 881(b)(1) and (4): first, that the seizure was incident to an arrest and second, that the Attorney General had probable cause to believe that the property had been used or was intended to be used in violation of the subchapter.
The exceptions under subsection 4 dealing with “probable cause” would be self-defeating if they meant that process to seize property is not required in every case where the property has been used in violation of the Act. If the process requirement has any meaning it must be that process is necessary unless there exists probable cause that Section 881(a) is being contemporaneously violated and the exigencies of the surrounding circumstances make the requirement of obtaining process to seize the vehicle unreasonable and unnecessary. There is no justification that probable cause under subsection (a) should exclude timeliness as a prerequisite to seizure and search as is otherwise read into the contemporaneous requirement governing *215probable cause to obtain a search warrant.1 As stated in House v. United States, 134 U.S.App.D.C. 10, 411 F.2d 725, 728 (1969), cert, denied, 339 U.S. 915, 90 S.Ct. 2220, 26 L.Ed.2d 574 (1970), there is “a necessity for search reasonably referable to a contemporaneous violation of law.” In our ease the police may have had cause to believe that the vehicle had previously been used to transport narcotics, some three months before. However, the facts surrounding the defendant’s belated arrest and the seizure of the automobile did not present any exigency or necessity such that the police could not have obtained lawful process to seize the vehicle. Without such a foundational basis to apply the exceptions in § 881(a)(1) and (4) the statutory requirement of process is otherwise rendered meaningless.
Similarly, I believe that the seizure of the car “incident to the arrest” was likewise illegal for failure to obtain lawful process for seizure of property as required by the statute. The arrest and seizure was not made contemporaneous to the offense in question. The obvious intent behind the statutory exception allowing warrantless seizure incident to arrest is where a felon is apprehended contemporaneous to the crime. When such a timely arrest occurs the requirement of process to seize the vehicle is not then needed since the police are confronted with an immediate justifiable and reasonable basis for impounding the car and inventoring its content. Under such circumstances the seizure and search are closely related in time and circumstance to the commission of the offense. Here the arrest was three months after the offense. Admittedly, the subsequent search had little or nothing to do with the offense under investigation.
I would reverse the judgment of conviction and grant a new trial.
. Similarly, the requirement of timeliness for execution of a search warrant has been codified in the Federal Rules of Criminal Procedure. Rule 41(c) and (d) read in pertinent part as follows :
“(e) Issuance and Contents — [A warrant] shall command the officer to search forthwith the person or place named for the property specified.
“(d) Execution and Return with Inventory. —The warrant may be executed and returned only within 10 days after its date.” See Spinelli v. United States, 382 F.2d 871 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).