(concurring):
I join in Judge Merrill’s opinion; however, it is appropriate I believe for me to set forth my understanding of that portion of the opinion which pertains to the failure of the government to demonstrate that the inventory search in this case was pursuant to routine practice. Judge Merrill’s opinion which deals with this issue, p. 444, follows closely the approach of Mr. Justice Powell’s concurring opinion in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000. Both justify an inventory search of an automobile by police without a warrant only in those situations in which, to use Mr. Justice Powell’s phrase, “no significant discretion is placed in the hands of the individual officer.” Id. at 384, 96 S.Ct. at 3104. Mr. Chief Justice Burger’s opinion in Opperman, in which Mr. Justice Powell and three other Justices joined, assumed that the search before the Court was “a routine inventory search of an automobile lawfully impounded by police,” id. at 365, 96 S.Ct. at 3095, and devoted itself substantially to showing that such a search did not contravene the Fourth Amendment. In doing this it did not specifically emphasize the elimination of significant discretion on the part of the searching officer to the extent this was done by Mr. Justice Powell in his concurring opinion.
This reduced specific emphasis in Mr. Chief Justice Burger’s majority opinion no doubt has led the government in this case to argue that if the impoundment was pursuant to standard police procedure the inventory search was proper because it is a practice followed generally by the police throughout the country. Judge Merrill’s opinion makes clear that merely because the police may have no significant discretion in impounding a car it does not follow that they may not have significant discretion in conducting an inventory search of the car so seized. Where such discretion exists with respect to the warrantless search, Opperman does not insulate it from Fourth Amendment attack. The fact that officers in another locality may have had no significant discretion in conducting a similar inventory search, because of local proce*446dures requiring such a search, does not serve to erect Opperman’s shield in a situation in which no such procedures exist.
This is a reasonable conclusion and it has led me to join this portion of Judge Merrill’s opinion. I do hasten to point out, however, that my reading of it does not give comfort to those who might construe it to mean that to establish a routine practice of inventory searches it is necessary to conduct an extended evidentiary hearing in each case on the assumption that minor deviations from the required routine practice will be sufficient to remove Opperman’s shield. I should think that a showing that warrantless inventory searches of lawfully impounded cars are required by proper regulations of appropriate authorities to be conducted routinely would be sufficient to come within the reach of Opperman in the absence of a showing, by a person having standing to assert Fourth Amendment rights, that departures from such regulations have been substantial. Should a showing of substantial departures be made the burden would be upon the prosecution to prove that notwithstanding these departures the inventory search was pursuant to a routine in which “no significant discretion [was] placed in the hands of the individual officer.” A procedure of this nature is in keeping with the presumption of regularity to which actions by public officials are entitled.1
. Absent proof of a substantial departure from official procedures, a presumption of regularity attaches to police action which allows the court to presume that the police in its actions has discharged its official duty and complied with any relevant regulations and procedures. Gallego v. United States, 276 F.2d 914 (9th Cir. 1960); see United States v. Weldon, 422 F.2d 800 (9th Cir. 1969), cert. denied, 398 U.S. 941, 90 S.Ct. 1855, 26 L.Ed.2d 275 (1970).