(concurring). While I concur in the result reached in the majority opinion, viz., that evidence seized pursuant to the warrant issued in these cases should be suppressed since the affidavit in support of the warrant is based on information illegally obtained, I am not in agreement with the reasoning by which the majority reach this result. I think that the opinion of the Appeals Court was correct in holding that even if the arrests were valid the search at issue in these cases was not. Thus I differ with the reasoning of the majority opinion at the point where it differs from the reasoning of the Appeals Court opinion.
For the sake of clear thinking in similar future cases, I believe that these cases are best approached from an analysis of the plain view doctrine and the requirement of inadvertence as a condition of the application of that doctrine. See Trupiano v. United States, 334 U. S. 699, 704-708 (1948), overruled by United States v. Rabinowitz, 339 U. S. 56 (1950), which in turn was overruled by Chimel v. California, 395 U. S. 752 (1969). See also Coolidge v. New Hampshire, 403 U. S. 443, 476-482 (1971), indicating that the plain view aspects of the Trupiano case still have validity. As to the arrests, see Gerstein v. Pugh, 420 U. S. 103, 113, n. 13 (1975).
As stated in the Coolidge plurality opinion, the limitations on application of the plain view doctrine are that “plain view alone is never enough to justify the warrantless seizure of evidence. . . . The second limitation is that the discovery of evidence in plain view must be inadvertent.” 403 U. S. at 468-469 (1971).
In my opinion, a case of inadvertence is not made out where the police in anticipation of, and with probable cause to know of, the presence of incriminating evidence *809wait for the person to be arrested to enter a dwelling house in order that they may place themselves in a position to gain a plain view of the evidence. On that reasoning I would suppress the evidence seized pursuant to the warrant issued in these cases.
The majority are, I think, drawn to the necessity of finding these arrests illegal by their thesis that “ [t]he requirement of ‘inadvertent’ discovery imposed by Coolidge v. New Hampshire, 403 U. S. 443, 469-471 (1971) . . . does not apply to items in plain view within the scope of a limited search incident to arrest as permitted by Chimel v. California, 395 U. S. 752 (1969).” This is a correct statement of law since the justification of a warrantless search within the Chimel limits lies in the exigency created by a valid arrest on probable cause. The plain view doctrine, where applicable, serves to extend the privileges of the police beyond the Chimel limits. However, in that situation, beyond the Chimel limits, inadvertence is required. “Where, however, the arresting officer inadvertently comes within plain view of a piece of evidence, not concealed, although outside of the area under the immediate control of the arrestee, the officer may seize it, so long as the plain view was obtained in the course of an appropriately limited search of the arrestee” (emphasis supplied). Coolidge v. New Hampshire, supra, at 466 (n. 24) (1971). In these cases it has not been shown that the evidence seized in plain view was within the area under the immediate control of the persons arrested. Indeed the facts developed at the hearing on the motions to suppress are ambiguous in this regard and may be read to support the contrary inference, viz., that the drugs were not within the scope of a Chimel search. Cf. Commonwealth v. Antobenedetto, 366 Mass. 51 (1974). In this failure of the majority to deal with the facts as they are lies the nub of my disagreement with the majority’s reasoning.
The result is that the majority unnecessarily declare the arrests (although based on probable cause) to be invalid *810instead of limiting their holdings to the conclusion, as the Appeals Court did and I would, that the search, and not necessarily the arrests, was invalid.
Admittedly, whether we strike down the arrests or declare the plain view principle inapplicable, the result is the same. Nevertheless, by following the route of the majority opinion we unnecessarily overrule prior decisions of this court. See Commonwealth v. Phelps, 209 Mass. 396 (1911); Commonwealth v. Andrews, 358 Mass. 721 (1971). The United States Supreme Court has yet to rule that a warrantless arrest on probable cause within a dwelling is invalid because it would have been practical to obtain a warrant. See Jones v. United States, 357 U. S. 493, 499-500 (1958); Ker v. California, 374 U. S. 23 (1963); Gerstein v. Pugh, 420 U.S. 103, 113, n. 13 (1975).
There are undoubtedly good reasons why we should, as the majority have now done, and as many other jurisdictions cited by the majority have done, recognize special protection in the Fourth Amendment against warrantless arrests in dwelling houses. But the crux of the unconstitutional intrusion here lay not in the search of the person or the area within the reach of the person but in the roving eyes of the arresting officers who entered the premises for one principal and long delayed purpose, to find and preserve the evidence.1 In *811deference to difficult and subtly similar cases which may lie in the future, I believe that the reasoning of this court should deal with the plain view doctrine. The validity of the arrest should be left to another day and to facts which have direct relevance to the arrest.
I also think it is important to emphasize that the majority opinion, as I read it, does not have a bearing on warrantless arrests (on probable cause) where the arrest does not take place within a dwelling. As the majority opinion states, see, e.g., n. 3, it is not to be read as placing any limitations on when such an arrest is made because the “judgment of the officers as to when to close the trap on a criminal committing a crime in their presence or who they have reasonable cause to believe is committing a felony is not determined solely upon whether there was time to procure a search warrant. Some flexibility will be accorded law officers engaged in daily battle with criminals for whose restraint criminal laws are essential.” United States v. Rabinowitz, 339 U. S. 56, 65 (1950).
In addition I note that I would, if required to do so, disagree with the result urged by the dissenting opinion with respect to the warrant-less arrests. If necessary, in these cases I would hold the arrests to be invalid. Furthermore, I also disagree generally with certain other aspects of the analysis in the dissenting opinion of the search and seizure questions at issue here in that the dissenting opinion: (1) intimates that there may have been no search or seizure until the warrant was obtained — this depends on the precise question whether plain view applies; (2) concludes that the general principle that the Commonwealth has the burden of proof on warrantless searches has limited applicability to a Chimel search — the scope of the search must be shown; and (3) postulates that the items seized were within a Chimel area in the absence of proof on this question.