concurring specially.
[¶ 15] I concur in the opinion written for the Court by Justice Maring, embracing the decision in Rawlings v. Kentucky 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), and holding valid as a search incident to arrest, a search preceding the arrest when the arrest occurred immediately after the search and there was probable cause to arrest before the search. But, I submit, a warrantless search prior to arrest should be the exception to the normal practice of a search following the arrest.
[¶ 16] Ordinarily I see little to recommend and a great concern in such procedure. With due respect to Justice Traynor’s comments in *708People v. Simon, 45 Cal.2d 645, 290 P.2d 531, 533 (1955), as quoted in ¶ 8 of the opinion for the Court, I am not so convinced a search of a person who has not been arrested is to the person’s advantage. The insult remains. More importantly, the reality is that an officer who is suspicious may be subconsciously tempted to conduct a search before making the arrest with the expectation or hope that the search will produce such irrefutable evidence of the commission of a crime that a lack of probable cause to arrest prior to the search will be overlooked, or such suspicion as did exist will be viewed more favorably in light of the evidence discovered in the search if, in fact, there is evidence discovered.
[¶ 17] I hope our opinion does not foster the search preceding the arrest as the normal practice. Police officers who might be encouraged by this opinion to adopt that practice and prosecutors should be aware that on appeal we will continue to closely examine the facts prior to the search to determine if probable cause to arrest is present without regard to any evidence which might be discovered during the search preceding the arrest.
[¶ 18] Carol Ronning Kapsner