concurring.
I fully agree with the majority opinion's analysis of Palumbo’s steroid psychosis-diminished responsibility defense. I do not agree with the majority opinion’s analysis of the fourth amendment issues and write separately only to set forth my position. However, even assuming that the warrant-less arrest was not justified by exigent circumstances or that the cocaine was not seized from an area within the defendants’ immediate control, I think the failure to suppress was harmless error. Accordingly, I concur in the affirmance of the judgment of the district court.
First, I agree that the government agents were not required to seek an arrest or search warrant as soon as they had probable cause to suspect a conspiracy to distribute cocaine. “[T]he government may [delay an arrest] in the hope of ferreting out any hitherto unknown individuals involved in the illicit undertakings, gathering additional evidence substantiating the crimes believed to have been committed, or discovering any other offenses in which the suspects are involved.” United States v. Hultgren, 713 F.2d 79, 87 (5th Cir.1983). Cf. Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“routine” *1099felony arrest following investigation). See generally 2 W. LaFave, Search and Seizure § 6.1, at 391-92 (1978 & Supp.1984). However, the ongoing nature of the investigation is only one factor to be considered in determining the reasonableness of the war-rantless arrest. United States v. Hult-gren, 713 F.2d at 87. Another factor to be considered in determining reasonableness is the opportunity to obtain a warrant. See Vale v. Louisiana, 399 U.S. 30, 40, 90 S.Ct. 1969, 1975, 26 L.Ed.2d 409 (1970) (Black, J„ dissenting). Here, the agents’ knowledge of the conspirators’ plan was accurate and relatively complete at least several hours before the transaction was to occur; this was not a rapidly developing situation.
I am not satisfied with the government’s justifieation for the warrantless arrest, The articulated precipitating cause of the exigent circumstances in the present case was the government agent’s inability to transfer the buy money to Millner,1 which would have forced the agents to arrest Millner in the agents’ hotel room. Mill-ner’s failure to return to Palumbo’s hotel room with the money would have made Palumbo nervous and caused him to destroy or remove the cocaine before the agents could obtain a warrant. I do not doubt that this is a plausible sequence of events. However, in my opinion, the agent’s understandable anxiety about the transfer of the money alone cannot justify the warrantless arrest. The agent’s inability to transfer the money, although admittedly not “created” by the government in the sense that it was not purposely arranged, would be characteristic of a drug investigation where the actual transaction is effected through a third party. I would distinguish the circumstances in the present case from those in United States v. Hultgren, 713 F.2d at 87, in which the unexplained failure of a transmitter worn by the government informer during the transaction created the genuine concern that the informer had been discovered and that his life and those of the agents conducting the surveillance were in danger.2
For that the ™antless arrest was not Justlfied by CirCUmstanCes and would hold that the district court erred m failing to suppress a11 the evidence seized as a result’ mc u ^be cocaine-
Alternatively, assuming that the warrantless arrest was justified by exigent circumstances, I would remand the immediate contro1 «Bastion to the district court for additional findings and further considera^on' ^ a&ree that the critical question is whether the cocaine was in an area within Palumbo s immediate control.” After reviewing the record, however, I think sever-P°ints which are material to the question immediate control were not considered the district court. For example, Professor LaFave suggests that “the relevant facts are those which show (i) what places it would be possible for the arrestee prently to reach, and (ii), perhaps of somewhat lesser importance, how probable it is that the arrestee would undertake to seek means of resistance or escape or to destroy evidence,” 2 W. LaFave, Search and Seizure § 6.3, at 415 (emphasis in original, footnote omitted), and outlines the following factors as relevant to the question of where it. would be possible for the arrestee to reach:
*1100(1) Whether or not the arrestee was placed in some form of restraints____
(2) The position of the officer vis-a-vis the defendant in relation to the place searched____
(3) The ease or difficulty of gaining access within the container or enclosure searched. Certainly “the accessibility of the searched area” should be taken into account____
(4) The number of officers present in relation to the number of arrestees or other persons. Because “the physical control of the situation exercised by the police” is an important consideration, it is most relevant to take account of the number of police officers on the scene.
Id. at 415-16 (footnotes omitted).
In the present case it is unclear from the record whether the defendants were handcuffed at the time of the search; if so, whether they were handcuffed with their hands behind their backs, a position of restraint which would make any use of the hands much more difficult; whether the defendants were seated on the floor or in chairs or on the beds; how many agents were in the hotel room; and where the agents were positioned in relation to the defendants and the dresser. In addition, the record clearly indicates that the cocaine was taped behind the dresser drawer, a factor which limited its accessibility to even a desperate arrestee. For these reasons, I would remand the immediate control question to the district court for additional findings and further consideration.
However, even assuming that the evidence seized3 should have been suppressed, either because the warrantless arrest was not justified by exigent circumstances or, if the arrest was lawful, because the search was not of an area within the defendants’ immediate control, I would conclude that the failure to suppress was harmless error. This was a bench-tried case. The remaining evidence overwhelmingly supports the district court’s finding that Palumbo was guilty of conspiracy to distribute and possession with intent to distribute. The government investigation was substantially complete before the warrant-less arrest and seizure of the cocaine, and the government informant, Palumbo’s co-conspirator Millner and one of the government agents testified about the conspiracy, Palumbo’s involvement in the conspiracy and his possession of the cocaine. Moreover, although the cocaine and other items indicative of drug transactions were physical evidence which connected Palumbo to the criminal conduct charged, possession of the cocaine at the time of the seizure is not an essential element of the crime of conspiracy to distribute cocaine. Cf. United States v. Byers, 600 F.2d 1130, 1132 (5th Cir.1979) (possession of marijuana at the time of the seizure is not an essential element of the crimes of conspiring to possess marijuana with the intent to distribute it or of conspiracy to import marijuana with the intent to distribute it). Similarly, although possession of the cocaine is an essential element of the crime of possession with intent to distribute, the government does not have to introduce the cocaine itself to establish possession.
Accordingly, I concur in the affirmance of the judgment of the district court.
. Cf. United States v. Joyce, 693 F.2d 838, 840 (8th Cir.1982) (reference to Drug Enforcement Administration guidelines prohibiting transfer of illegal drugs into physical possession of persons under investigation).
. The court in United States v. Hultgren, 713 F.2d 79, 88 (5th Cir.1983), concluded that the district court had properly found that exigent circumstances justified the warrantless arrests after considering the following factors: the home invaded was [that of a third party], the arrest was precipitated amidst an ongoing investigation and its attendant uncertainties, the period of time which elapsed before the exigent circumstances arose was relatively short' rand *he Precipitating factors for the flrest b whlle n°* unexpected,] were not dehberately created by the government,
. If the arrest was unlawful, all the evidence seized from the hotel room and from Palumbo’s person should have been suppressed. If the arrest was lawful, all the evidence except the cocaine, which was not in plain view or in an area within the defendants’ immediate control, was lawfully seized incident to arrest or in plain view.