(concurring) :
I concur in affirming the judgment. I agree that our decision in United States v. Cohn, 9 Cir., 1973, 472 F.2d 290, is in point. Judge Aldrich points to the fact that in Cohn, the officers did search at the time of the stakeout and then replaced the contraband, and used the car and its contents as bait to catch the criminals, while in our case the officers, although they obtained probable cause from the odor and from seeing a kilo brick of marijuana in the car, did *357not search, but, as in Cohn, used the car and its contents as bait. I cannot see, however, how that difference has legal significance. As a matter of fact, the first search in Cohn only produced one kilo brick of marijuana, which was. replaced, plus a reasonable belief that there was more behind the seat. The second search was far more extensive; it produced thirty-eight more kilo bricks. What difference should it make that in Cohn the officers took out the one brick that was in plain sight and then replaced it, while in our case they merely saw it and left it undisturbed? I think that, if the second search in Cohn, which produced thirty-eight previously undiscovered kilos of marijuana, was valid, the search in our case was also valid. Hence I agree .with Judge Sneed that Cohn is controlling.
Like Judge Aldrich, however, I have trouble with the rationale of Cohn. I agree, as he does, that in Cohn and in our case exigent circumstances would have justified (did justify in Cohn) an immediate search when the fact that the car contained contraband first became known. I also think, as Judge Aldrich does, that this is not enough to justify making the second search without a warrant. To so hold seems to me to fly in the face of the decision in Preston v. United States, 1964, 376 U.S. 364, 84 S. Ct. 881, 11 L.Ed.2d 777. In that case, the police had probable cause to search at the time when they arrested the defendants. They did not, however,- search at that time, but instead waited until later when the defendants were booked at police headquarters and the car was sitting immobile in a garage. The Court said: “[T]he police had the right to search the car when they first came on the scene. But this does not decide the question of the reasonableness of a search at a later time and at another place.” 376 U.S. at 368, 84 S.Ct. at 883. The Court then proceeded to hold the search invalid, because at that time no exigent circumstances justified the failure to obtain a warrant. Preston, then, requires that we look at the circumstances under which the search was made. The search cannot be justified merely because a previous partial search was made (Cohn) or could lawfully have been made (our case).
I think it entirely proper, when officers know, or have probable cause to believe, that a vehicle contains contraband, for them to use it as bait to catch the criminals. Doing so is good police work and violates no rights. When, as in Cohn and in this case, the car has been left in a public place, and the criminals may at any time appear and drive it away, I think that exigent circumstances permit an immediate search. However, such a search is not required. The officers may well conclude that they might be discovered while searching, and lose their quarry. So, if they choose, they can wait for their quarry to appear without searching. When the quarry does appear, enter the car and drive off, an arrest can be made and the car searched — with a warrant if one has been obtained, without one if the circumstances at that time bring the case within one of the exceptions to the warrant requirement.
Here, as in Cohn, the circumstances at the time of the search (I refer to the second search in Cohn) do, as Judge Aldrich points out, come within one of those exceptions — the arrest of the driver of a car on a public street. Here the officers did what the Court said that the officers could have done in Preston, supra, but did not do. They searched the car when they made the arrest. I also agree with Judge Aldrich that here and in Cohn there was no subterfuge undertaken to avoid having to get a warrant. I think that it is on the foregoing grounds, rather than the ground stated in Cohn, that the second search in Cohn should have been upheld.
I would be happier, however, if the. officers in this case and in Cohn had obtained a warrant while they waited, as I believe they could easily have done. . If in future cases there appears to be abuse of the Cohn decision and of this one, I may conclude that the Cohn deci*358sion and this one should be reexamined. As the Supreme Court has repeatedly said, when a warrant can be obtained, it ought to be obtained. Officers of the law can save themselves and the courts a great deal of trouble if they will bear that rule in mind and act upon it instead of taking a chance that their failure to obtain a warrant may later be condoned by the courts.