dissenting in part:
I would reverse as to Whitfield as well as Monroe, and therefore respectfully dissent in part.
*144This is not a situation where a moving vehicle was stopped on a pretext in order to avoid escape. Defendants had been closely observed for eight days. Sgt. Ware did not originally intend an arrest or search, but only a spot check. There was no suggestion of imminent flight or an exigent circumstance. Most important, the car was eventually lawfully immobilized because of its expired tags.
In the District Court the police and the prosecutor explained that the car had been impounded for improper tags and that the police had consciously decided to exercise their authority under applicable impoundment regulations with a view to taking immediate custody. On appeal the Government brief concedes that Sgt. Ware relied on an inventory rationale. To allow this undisputed record to be ignored in favor of a different inaccurate justification, never advanced below, is in my view not appropriate.
The regulation (General Order 602) is quite explicit as to the timing, scope, and location of inventory searches. See Part I.B.4 at 12-15. Specifically, no search is permitted at the point of impoundment but only later at the police facility. Only property easily visible from outside the vehicle is to be removed in the first 24 hours. Because the police relied on General Order 602 they must comply with its requirements. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). They did not do so. Instead, under the guise of an inventory rationale, they conducted a comprehensive search covering the entire interior and trunk of the vehicle.
Moreover, a general rule never before announced by any court to the effect that all moving vehicles create ipso facto an exigent circumstance regardless of the facts will discourage the use of warrants and will result in an unfortunate intrusion on privacy far beyond anything the Supreme Court has approved. Surely it goes too far to say that the police officers were acting with probable cause and in exigency when the record shows that neither of these considerations entered their minds as they came up to the vehicle. I simply cannot accept the view that the police consciously throughout the proceeding below used a pretext to conceal their true investigatory motive even from the Court. Furthermore, the Supreme Court in Opperman never intended to approve pretext in the sense suggested by the majority.
Accordingly, I respectfully dissent as to Whitfield.