(concurring in the result).
While I agree with the result, I think the court’s reliance on United States v. Cohn, 472 F.2d 290 (9th Cir. 1970) in part exaggerates the holding in that case, and in part attaches weight to a dictum therein that, with due respect, I cannot accept. In Cohn, as soon as they found the car parked on the street the officers, clearly having probable cause, made a search and discovered a quantity of marijuana. Instead of seizing it, they withdrew and watched the ear for nineteen hours. During this interval there was a change of guard, and ample opportunity to obtain a warrant, but none was sought. When, ultimately, defendant appeared and drove off, the officers pursued and arrested him.. They then searched the car again, and seized the contraband. In upholding the second search the court pointed out that the original search, being based on probable cause and “exigent circumstances,” was legal, and that it would be a “meaningless gesture” to seek a warrant for a second one. I agree that the first search could be found lawful and, since there was no first search in the case at bar, need not quarrel with the conclusion the court drew from it. At the same time one must note that what is justification to enter without a warrant at one time does not necessarily carry over to another. See, e. g., Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L. Ed.2d 777. As to Cohn’s final remark, that the claim that the officers had time to obtain a warrant during their nineteen hour vigil was “hindsight,” with due respect I think there must be a better approach.
In the case at bar the officers merely looked at the automobile when first discovered parked on a public street, and from that vantage point both smelled marijuana and saw what appeared to be a kilo brick thereof through the window. Had this smell come through the door of a hotel room, Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), or the view been through the transom, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), it would not have been sufficient to justify entrance therein.
“[P]lain view alone is never enough to justify the warrantless seizure of evidence. This is simply a corollary of the familiar principle discussed above, that no amount of probable cause can justify a warrantless search or seizure absent ‘exigent circumstances.’ Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable *356cause. But even where the object is contraband, this Court has repeatedly-stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S.Ct. 2022, 2039, 29 L.Ed.2d 564 (1971).
An automobile on a street commonly presents “exigent circumstances.” Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). But as Coolidge v. New Hampshire plainly holds, the circumstances of a search must be viewed as a whole, and even as to an automobile search the question remains whether the circumstances at the time of the search indicated that the delay or inconvenience in obtaining a search warrant would likely thwart the efforts to conduct the search, or result in the disappearance of the objects sought.
I will assume that if the officers had been apprehensive and had searched the ear at once, they might have claimed the Carroll exception in spite of the fact there was a known available magistrate only a block away. Instead, they made no attempt to obtain a warrant, but chose to do nothing for four hours even though as many as five agents were at times present and there was radio contact with potential reinforcements. If they could safely postpone the search to wait for a suspect to appear, they could equally wait for a warrant, subject, of course, to the possibility of interruption if the suspect came first. The longer they did nothing in such circumstances, the less credible would seem a claim that because of the urgency of the situation it was impracticable to call on the magistrate for a warrant. I would have been greatly concerned if, after four hours, they had chosen to enter the unattended car without one. Where the burden of obtaining a warrant can be readily met, officers should exercise forethought rather than claim they are blameworthy only by hindsight.
It seems apparent, however, that the officers’ primary interest was not directed to the car, but was to lie in ambush, with the car as bait. This is not a case where the officers, having grounds and opportunity to obtain a search warrant, waited and sought to substitute seeing someone committing a felony on the premises as an excuse for making a warrantless entry. Cf. Niro v. United States, 388 F.2d 535 (1st Cir. 1968). Here the officers did not need an excuse to enter, but chose, instead, to concentrate on making an arrest. When the defendant arrived and drove off in a ear known to contain contraband, he was committing a felony in their presence, and they had an immediate right to arrest him. I see no reason why they could not then assert, in connection with the arrest, exigent circumstances with respect to the car. Carroll v. United States, ante; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L. Ed.2d 777 (1964). In spite of the limitations that a rigid application of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) might suggest, I would be loath to say that police, having probable cause to arrest the occupant in an automobile on a public street, should not have the freedom of searching the exposed portion of the car without first rebutting a claim that they could adequately protect its contents by removing the occupant and setting up a guard detail while securing a warrant. On this basis I join in the affirmance.