concurring in part and dissenting in part.
I agree that there was no probable cause for the arrest. Nonetheless, I part from the majority on one issue. The opinion upholds the warrantless search of a Kentucky Derby patron’s allergy pill bottle as legal. This, I cannot do, and therefore, dissent.
First, I recognize, of course, that crowd control is a major problem at the Kentucky Derby. I agree that the warrantless police searches were conducted with an important purpose in mind, to protect the patrons of the Derby. However, I question whether the searches were more intrusive than reasonably necessary to accomplish the underlying purpose of preventing violence. The police searched not only for bottles, weapons, and missiles, but also for items which posed no risk, such as the allergy pills in Mr. Jeffers’ prescription vial. Thus, in my view, the scope of the searches was unreasonable because it was not logically linked to any perceived or real danger. That is, the police went too far. U.S. v. $124,570 U.S. Currency, 873 F.2d 1240, 1243-47 (9th Cir.1989); See Terry v. Ohio, 392 U.S. 1, 15, 17-19, 88 S.Ct. 1868, 1877-1879, 20 L.Ed.2d 889 (1967); See generally W. La-Fave, 4 Search and Seizure, § 10.7(a) at 40-42 (2d ed. 1987).1
Second, even assuming arguendo that warrantless police searches of all Derby patrons are legal, Officer Heavrin’s search of Mr. Jeffers’ prescription bottle can still not be justified on this broad basis. The authority for the search policy was limited in scope to its express purpose, here, to detect alcohol, weapons, and missiles. These items could not plausibly rest inside a small pill vial (the contents of which were visible from the outside). Therefore, Officer Heavrin went beyond the scope of the search when she opened Mr. Jeffers’ pill bottle, and to this extent, the search was illegal. Officer Heavrin went too far. U.S. v. $124,570 U.S. Currency, 873 F.2d 1240, 1244-48 (9th Cir.1989); See Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
My third concern follows from the other two. When Mr. Jeffers entered Churchill Downs, he could not have plausibly consented to a future search that would go beyond its own express limits. Therefore, when the police did go too far, they should not be shielded by the “troublesome doctrine” of implied consent. W. La Fave, 4 Search and Seizure, § 10.7(a) at 41-42 (2d ed. 1987); W. LaFave, 3 Search and Seizure, § 8.2(1) at 220 (2d ed. 1987); Serpas v. Schmidt, 827 F.2d 23, 29 (7th Cir.1987); U.S. v. $124,570 U.S. Currency, 873 F.2d 1240, 1247-48 (9th Cir.1989).
Accordingly, I would reverse and remand consistent with this determination.
. I may add that courts dealing with similarly intrusive searches at public events have also come to this conclusion. See, e.g. Wheaton v. Hagan, 435 F.Supp. 1134 (M.D.N.C.1977); Collier v. Miller, 414 F.Supp. 1357 (S.D.Tex.1976); Stroeber v. Commission Veteran’s Auditorium, 453 F.Supp. 926 (S.D.Iowa 1977); Jacobsen v. City of Seattle, 98 Wash.2d 668, 658 P.2d 653 (1983); State v. Carter, 267 N.W.2d 385 (Iowa 1978); Nakamoto v. Fasi, 64 Haw. 17, 635 P.2d 946 (1981).