(dissenting).
I respectfully dissent. Although I agree with the observation that the performance of the police officers constituted good police work, I do not agree that the search, in the absence of a warrant, was permissible under the Fourth Amendment as interpreted in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). That case has come to stand for the principle that the immediate uninterrupted pursuit of a fleeing felon from the scene of a crime to a dwelling house furnishes the exigent circumstances excusing compliance with the constitutional requirement of obtaining a warrant before searching the home. In that case, two drivers of radio equipped taxi cabs followed a fleeing and armed felon from the scene of the robbery of their office to a private household, and kept him under surveillance until he entered. The police, who had been summoned during the pursuit, arrived at the home within minutes of the call. Based upon their certainty, confirmed by eyewitness information that the felon was inside and that he was armed and dangerous, and acting upon their reasonable belief that delay would endanger their lives and the lives of possible occupants of the home, the police entered, apparently with the consent of the owner of the home, in order to search. In upholding the validity of the search without a warrant and discounting the element of consent, the Supreme Court stated:
The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape.
387 U.S. at 298-99, 87 S.Ct. at 1646.
*47In this appeal, however, no one pursued the felon and kept him under uninterrupted surveillance at close range from the scene of the bank robbery; no one told the police that the felon had entered the Gross home; and the person who answered the door at the home informed the police that Gross was not home and refused permission to enter. Moreover, if, as the police testified, they suspected that Gross was the bank robber, a belief that the occupants of the Gross home were in danger would not be reasonable. Accordingly, although the suspicions of the police officers about the flight of the felon into the Gross home turned out to be correct, they were not in hot pursuit. They were not engaged in an immediate and close chase of a felon from the scene of the crime to the place where he attempted to hide. Moreover, if the police were seeking Henry Gross, who was an occupant of the home and not a stranger to it, their safety and that of the Gross family would have been better protected had the police, who were present in sufficient numbers, surrounded the house and sought a warrant instead of forcing entry over the protest of Gross’ sister and endangering the numerous small children observed in the living room.
Moreover, the determination that exigent circumstances excusing compliance with the warrant requirement of the Fourth Amendment exist does not establish probable cause or obviate the requirement that it be demonstrated. The Supreme Court, in its consideration of the search in Warden v. Hayden, did not address the question whether probable cause to search existed perhaps because the proofs were so convincing that it assumed that probable cause was afforded. In this appeal, the court does not consider whether there was probable cause to search even though appellant argues that the search was invalid for that reason. At best, the question of the existence of probable cause is close because the description of the robber’s height that was furnished by eyewitnesses differed significantly from Gross’ height which was known to the police officers who were investigating the case, and the other descriptive details did not correspond with particularity to other police information about Gross. The very fact that eyewitness descriptions based on observations made under stress are often inaccurate argues for the dispassionate consideration by a magistrate of an application for a search warrant when there is no emergency.
The majority opinion in this case extends the concept of hot pursuit beyond the facts and rationale of Warden v. Hayden. I fear it would justify the search of a home without a warrant at any time after contact with a fleeing felon is lost if the police succeed in picking up the scent and return to the trail. This result would extend the holding of Warden v. Hayden impermissibly and would severely undercut the protection afforded by the Fourth Amendment. I would reverse and remand for a new trial at which evidence seized in the house would be suppressed.1
. The government has not raised the question of Holland’s standing to question the legality of the search. That issue may still be open.