dissenting.
The, defendant’s motion to suppress the evidence should have been granted.
I. begin with the same premise accepted by the majority, namely, that a search and seizure incident to an arrest is not reasonable if it is more extensive than that which could be made under a valid search warrant.① In my opinion a valid search warrant could not have been issued for the search and seizure of the camera, the film, the beer bottles and the soiled sheet because these items of evidence do not fall within the grounds specified in ORS 141.010.② The only statutory condition that could possibly apply is the second, which permits a search warrant “When the property was used as the means of committing a felony.” The majority states that “the use of the camera in the debauchery of the child is not so unreasonably disconnected with the commission of the crime charged as to require the exclusion of that instrument.” The test is not whether the item of evidence is reasonably connected with the commission of *281the crime; it must be property which “was used as a means of committing” the crime. Counsel for the state, himself, concedes that “Despite the high evidentiary value of the exhibits, they do not come within the meaning of ORS 141.010, and no warrant could have been issued to search for and seize this evidence.”③
To state as a general proposition that a camera is an instrumentality in the commission of the crime of statutory rape is quite a startling assertion and will certainly come as a surprise to the average reader. To be sure, an imaginative mind could conceive of ways in which a camera might be used as a means of enticing a female into the act charged, but there is no evidence that the camera in this case was so used, nor is there evidence that cameras are commonly used for such a purpose. A similar observation could be made with respect to the soiled sheet and the beer bottles.
The majority, sensing that the evidence of guilt is strong, indulges in a distortion of language and ideas to affirm the conviction. This is not an unusual spectacle in the law of search and seizure. The great confusion which characterizes this field can probably be traced to this very same tendency to twist out of shape the language of the statutes authorizing search in order to see that the defendant is punished. In yielding to this temptation to do justice in the particular case the majority drains away a part of the vitality of the statute as well as the constitutional principle which underlies the Fourth Amendment, *282U. S. Constitution and its counterpart in Article I, § 9 of the Oregon Constitution.④
The case at bar could be decided simply upon an interpretation of our search warrant statute, ORS 141.010, the items seized not being a “means of committing” the crime charged, that is to say, an instrumentality of the crime. However, the limitations on the right of search contained in ORS 141.010-141.190 and similar statutes in other jurisdictions are undoubtedly derived from the principle upon which both our constitution and the federal constitution are based. Our interpretation of ORS 141.010 must keep within this constitutional principle whatever we may think of the need for more efficient law enforcement methods.
At first blush the narrow limits within which search may be made under the usual search warrant statute such as ORS 141.010 strikes one as being unrealistic considering the difficulties usually facing law enforcement officers in gathering evidence. But as I shall attempt to show later, these narrow limits are necessary if we are to preserve the safeguards intended by the Fourth Amendment, U. S. Constitution and Article I, § 9, Oregon Constitution.
The legislature has, in effect, said that no matter *283how clearly the evidence in the accused’s possession would establish his guilt, the enforcement officers cannot reach it, even with a warrant, unless it is a fruit of or an instrumentality of the crime. This limit on the scope of permissible search and seizure is not expressly stated in the Fourth Amendment or in the state constitutions. Nor does the history of the law of search and seizure clearly show why these limits were drawn as they were.⑤ But the cases are pretty well in agreement in regarding the right of search and seizure as narrowly limited to the circumstances already mentioned, the holdings apparently reflecting the philosophy which prompted the adoption of the Fourth Amendment and similar provisions in the various state constitutions.
Generally speaking these cases teach us that the constitutional right of privacy is protected unless the accused has no property interest in the item sought or if he does have such an interest, there are reasons, aside from the government’s need for evidence, warranting the seizure of the item. Thus it is held that the fruits of the crime may be seized, apparently because the accused has no title to such property.⑥ Likewise, property owned by the government or held by *284the accused subject to inspection is seizable.⑦ Property which is owned by the accused is not ordinarily subject to seizure. "Where the seizure of the property of the accused is permitted it is ordinarily deemed necessary to square the result with the general immunity of private property from seizure by explaining that the accused, by engaging in unlawful conduct, forfeited his title to the property. Thus it is explained that contraband is seizable because the accused does not have a property interest in it.⑧ Similarly with property which was an instrumentality of the crime.⑨ There it is suggested that the use of the property for a criminal purpose renders it forfeitable, an idea *285apparently derived from the early English, law of deodand, according to which the instrument nsed in causing the injury was forfeited to the crown.⑩
For the most part the cases limit lawful search and seizure to the foregoing categories although it is sometimes difficult to understand the court’s basis for classifying the property in the particular case.⑪ And there is not always consistency in the treatment of similar items of property,⑫ nor, as would be expected, *286is there a unanimity of view as to how particular items should be classified.⑬ It seems obvious that in some of the cases the treatment of the property as forfeitable is a rationalization for permitting its seizure.⑭ As I have indicated, the cases contain little or no explanation for the rule limiting search to the categories of property mentioned above. The underlying principle implicit in these cases is that property ownership and not the evidentiary character of the item sought or seized is the criterion in determining whether the item is seizable.⑮ For the most part the cases support the general proposition that one’s property, no matter how indicative of the commission of a crime, cannot be searched for or seized. A search warrant does not remove the barrier set up to protect this right of private ownership and privacy; the barrier is removed only to permit the recapture of illegally obtained property owned by someone else or to permit the seizure of property which has been forfeitable.
*287Although the law of search and seizure has been cast in terms of property concepts, it seems clear that a broader right of privacy is involved.⑯ If it is felt that the private property concept limiting the scope of search and seizure under ORS 141.010 is anomalous, any change in the concept must be made in the legislature where the limits were created, and not in this court through word play extending the meaning of the “means of committing” a crime. For reasons which I shall explain later I believe that the term “means of committing” a crime should be construed narrowly and thus afford greater protection to the citizen’s interest in privacy.
I have found no cases in which the court has treated the terms “means of committing” the crime or “instrumentality” of the crime as broadly as the majority treats it in the present ease.
My dissent is also founded upon a second ground. I believe that the law should permit a search without a search warrant only in “exceptional circumstances.”⑰ The purpose of the statute requiring a search warrant is to subject to the judicial scrutiny of a magistrate the law enforcement officer’s proposal to invade a citizen’s privacy. That is also the purpose *288of the Fourth Amendment and ORS 141.010—141.190.⑱ The correct rule is stated in United States v. Trupiano, 334 US 699, 68 S Ct 1229, 92 L Ed 1663 (1947), which holds that a search incident to an arrest is unlawful if it is practicable to obtain a search warrant. I realize that United States v. Rabinowitz, 339 US 56, 70 S Ct 430, 94 L Ed 653 (1950) has expressly overruled the Trupiano ease. See also, Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399 (1947). But we have our own constitution to interpret and in interpreting it we are not bound by the cases decided by the United States Supreme Court if we propose to afford our citizens a greater protection against unlawful search than that recognized in those cases.
As I understand United States v. Rabinowitz, supra, a lawful arrest validates the concomitant search irrespective of the ready availability of a search warrant.⑲ The practical effect of this rule is to abolish the search warrant in those cases where officers wish to search the dwelling of the accused. Obviously they will not subject their proposal of search to judicial scrutiny (with its requirement that the items sought be designated) when a search can be made without such scrutiny.⑳ I do not believe that our search warrant statute was intended to be so construed, nor do *289I think that either the Fourth Amendment or Article I, § 9 of our own constitution was designed to be so limited.
My view of the Rabinowitz and Harris eases accords with that expressed in the quotation from Benge v. Commonwealth, 321 SW2d 247, 249 (Ky 1959) set out in the margin.㉑ In the Benge case the Kentucky Court of Appeals further stated:
“If we should hold along with the lower court that a warrant of arrest, without more, is sufficient to justify an unlimited search of a man’s home for evidence of any crime, provided only he is arrested in his home, we would never hereafter be compelled to determine that such a search and any seizure incident thereto would be unreasonable, nor that probable cause for the search must be shown under the circumstances. More than that, no description of the place to be searched or the thing to be seized would need to be given; nor would an oath or affirmation any longer be necessary as a basis to secure a search warrant. In short, all the restrictions put upon the issuance and execution of search warrants by the above quoted constitutional provision would offer no protection as to those who are arrested in their homes.
*290“Should we accept this view, we would be driven to believe that the framers of the Constitution of this Commonwealth, and particularly Section 10 thereof, were guilty of a serious blunder when they left open another way by which searches may be made without a search warrant and with none of the safeguards that should surround the obtaining of one.” 321 SW2d at 249-250.
In the present case the majority abrogates the most important aspect of the constitutional guarantee afforded by the Fourth Amendment and Article I, § 9, Oregon Constitution. That aspect is described by Mr. Justice Jackson in Johnson v. United States, 333 US 10,13-14, 68 S Ct 367, 369, 92 L Ed 436, 440 (1948):
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. [Footnote citation and quotation]. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. [Footnote citation and quotation]. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, *291to be decided by a judicial officer, not by a policeman or Government enforcement agent.
“There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with. But this is not such a case. No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement.”
The reasons for holding invalid a search incident to arrest if it is practicable to obtain a search warrant are clearly stated in United States v. Trupiano, supra, and elswhere.㉒ I shall not restate them here. Those reasons compel a holding that the seizure in this case was invalid if it is established that it was practicable to obtain a search warrant prior to seizure.
In the present ease there was no reason for the officers to proceed without a search warrant. The case was not one which required urgent action. There was no indication that the accused was about to take flight.㉓ The officers waited a considerable period of time before they even attempted to enter defendant’s apartment. They had time to obtain an arrest warrant; it would not have taken any longer to obtain a search warrant. The complainant and her mother had *292reported the incident to the police a substantial period of time before the police entered defendant’s apartment.㉔ The officers had been informed by the complainant of the three items of evidence in question.㉕ It having been practicable to obtain a search warrant, the seizure was illegal. United States v. Trupiano, supra.㉖
The arrest was valid. I shall assume that the officers had reason to search the other rooms in an effort to find the accused and I shall assume that they did not enter the other rooms for the purpose of searching for evidence of the crime (although the latter assumption is, under the circumstances of this case, not an easy one to make). There was, therefore, no invalid search. But the seizure without a warrant was invalid and the evidence should have been suppressed.
The requirement that the officers obtain a search warrant in this case, even though they already knew from their previous search what they wanted to seize, *293is not a mere formalism.㉗ As I have previously indicated, the requirement that a search warrant be obtained is principally designed to subject to judicial scrutiny the officer’s request for a search. The constitution intended that the judicial scrutiny was to be exercised before and not after seizure. Although defendant’s privacy had already been lawfully invaded by the valid search for his person, the seizure must nevertheless be declared invalid, for if such seizures were not held to be illegal police officers would be encouraged to dispense with the preliminary application for a search warrant.㉘ Of course, as I view it, the warrant would not have been forthcoming because the items seized did not satisfy the conditions of ORS 141.010 and the seizure would not have been valid in any case.
I disagree with the majority of the court on still another point. The majority holds that the seizure of the items in question was incident to Chinn’s arrest. I believe that the seizure was illegal on two grounds. First, I am of the opinion that by extending the right of seizure of property not in the immediate presence of the accused the court invites the very type of exploratory search which is admittedly forbidden under constitutional provisions such as the Fourth Amendment and Article I, § 9. I concede that authority can be cited to support the view taken by the majority in *294the present case.㉙ However, I share the view of Mr. Justice Jackson dissenting in Harris v. United States, 331 US 145, 197, 67 S Ct 1098, 1120, 91 L Ed 1399, 1431 (1947):
“Once the search is allowed to go beyond the person arrested and the objects upon him or in his immediate possession I see no practical limit short of that set in the opinion of the court and that means no limit at all.”㉚
Secondly, I do not accept the view of the majority that a search of a dwelling may precede the arrest.㉛ The case of State v. McDaniel, 115 Or 187, 231 P 965, 237 P 373 (1925), relied upon by the state, is not in point. There the court said that “it is immaterial whether the arrest preceded or followed the search if such acts were practically simultaneous, and if, in fact the defendant was guilty of committing a crime in the presence of the officers for which he might have been arrested.” (Emphasis added). The search and arrest were not “practically simultaneous” in the present case. Furthermore, the rule in State v. McDaniel, supra, applies only to search of the person and not to the search of a dwelling. The distinction *295between the scope of the search in these two situations is clearly recognized in the cases.㉜
According to the rule now adopted by the majority, since the officers do not need a search warrant all they need do is choose the accused’s home as the place of arrest and then proceed to make a thorough search of all the rooms in the house.㉝
The fundamental fallacy in the position taken by the majority is in viewing the law of search and seizure as if it had no constitutional content. The majority puts the problem in terms of weighing the interest of efficient law enforcement against the interest of the citizen to be free from an inordinate invasion of his privacy.㉞ The problem is treated as if it involved nothing more than a tort principle comparable to that which extends a privilege of entry upon private property to a fireman or policeman in carrying out a governmental function. In search and seizure cases the interest which is our principal concern is the citizen’s interest in being free from surveillance by executive officers of the government. The interest may be evaluated in terms of the danger which prompted the adoption of the Fourth Amendment. The amendment was adopted not simply to protect the citizenry from the inconvenience and embarrassment attending *296the entry of officers into their homes, but to put a check on executive action which might endanger political freedom. The amendment was drafted by those who had a fresh recollection of the abuses which had been exercised in the course of subjugating citizens to the will of despotic leaders. The danger of such abuses is still present. As Mr. Justice Frankfurter said in his dissent in United States v. Rabinowits, 339 US at 82, 70 S Ct at 442, 91 L Ed at 669:
“The progress is too easy from police action unscrutinized by judicial authorization to the police state.”
The danger was seen by Judge Learned Hand in United States v. Kirschenblatt, 16 F2d 202 (2d Cir 1926), where he said, “nor should we forget that what seems fair enough against a squalid huckster of bad liquor may take on a very different face if used by a government determined to suppress political opposition under the guise of sedition.”
Article I, § 9, Oregon Constitution, and the Fourth Amendment should be construed in light of these dangers, “so as to prevent stealthy encroachment upon or ‘gradual depreciation’ of the rights secured by them, by imperceptible practice of courts or by well-intentioned but mistakenly over-zealous executive officers.” Gouled v. United States, 255 US 298, 304, 41 S Ct 261, 263, 65 L Ed 647, 650 (1921).
For the foregoing reasons I am of the opinion that the judgment of conviction should not be permitted to stand. In my treatment of the case I have assumed that the arresting officers entered consensually. I am not certain that the entry was consensual in a legal sense, but since the seizure was illegal on other grounds it is not necessary to decide that question.
United States v. Lefkowitz, 285 US 452, 52 S Ct 420, 76 L Ed 877 (1932); United States v. Thompson, 113 F2d 643 (7th Cir 1940).
"ORS 141.010. A search warrant may be issued upon any of the following grounds:
“(1) When the property was stolen or embezzled.
“(2) When the property was used as the means of committing a felony.
' - “(3) When the property is either in the possession of a person who intends to use it as the means of committing a crime or in the possession of another to whom such person delivered it for the purpose of concealing it or preventing its being discovered.”
The applicability of this statement to the soiled sheet finds support in Morrison v. United States, 262 F2d 449 (D C App 1958), where a handkerchief containing similar substances was held evidentiary and, therefore, inadmissible.
This thought is expressed in United States v. Richmond, 57 F Supp 903, 907 (S D W Va 1944) where the court asks “if they [constitutional guarantees] are permitted to be infringed in order to obtain evidence against the guilty, how shall we have assurance that the innocent will not likewise suffer; since it is only after the search and seizure are made that their results can be known? * ** * Courts must be vigilant to detect and check any and all invasions of the constitutional right of immunity from unreasonable searches and seizures, without regard to the indicated guilt or innocence of the person whose premises are the object of the search; otherwise, the right itself may be insidiously undermined and destroyed.”
Lassen, History and Development of the Fourth Amendment to the United States Constitution, 13-105 (1937); Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 678-679 (1961).
“The search for and seizure of stolen or forfeited goods or goods liable to duties and concealed to avoid the payment thereof are totally different things from search for and seizure of a man’s private books and papers * * *. In one case, the Government is entitled to the possession of the property; in the other it is not.” Boyd v. United States, 116 US 616, 623, 6 S Ct 524, 528, 29 L Ed 746, 748 (1885). See, Comment, 20 U Chi L Rev 319, 323 (1953).
Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399 (1947) (draft classification cards); Davis v. United States, 328 US 582, 66 S Ct 1256, 90 L Ed 1453 (1946) (ration books). See, Comment, 20 U Chi L Rev 319, 323 (1953); Reynard, Freedom from Unreasonable Search and Seizure—A Second Class Constitutional Right?, 25 Ind L J 259, 284-285 (1950); Comment, 45 Mich L Rev 605, 610-611 (1947); Comment, 38 Journal of Criminal Law & Criminology 244, 246 (1947); Comment, 37 Journal of Criminal Law & Criminology 413, 415 (1947).
“The tool or other object which killed a man was deodand and forfeit; a burglar’s kit or a counterfeiter’s plate has never been property in the ordinary sense, any more than liquor since the enactment of Section 25.” Judge Learned Hand in United States v. Kirsohenblatt, 16 F2d 202 (2d Cir 1926). Cases illustrating this principle are United States v. Trupiano, 334 US 699, 68 S Ct 1229, 92 L Ed 1663 (1947) (liquor still); McGuire v. United States, 273 US 95, 47 S Ct 259, 71 L Ed 556 (1927) (liquor); United States v. Hotchkiss, 60 F Supp 405 (D C Md 1945) (liquor still).
Zap v. United States, 328 US 624, 66 S Ct 1277, 90 L Ed 1477 (1946) (cancelled check used to defraud government held an instrumentality of the crime); United States v. Lefkowitz, 285 US 452, 52 S Ct 420, 76 L Ed 877 (1932) (books and papers found in a room from which orders for illicit liquor were solicited were not instrumentalities of the crime and thus not seizable); Marron v. United States, 275 US 192, 48 S Ct 74, 72 L Ed 231 (1927) (ledger and bills for gas, water and power seized in a speakeasy were instrumentalities of the crime charged); United States v. Howard, 138 F Supp 376 (D C Md 1956) (money contained in a safety deposit box was seizable as fruit of the crime of bank robbery).
“It is difficult to believe, as has been suggested, that this metaphysical principle has been frozen into our Constitution.” Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif L Rev 474, 478 (1961).
Judge Learned Hand found justification for the rule in the fact that “limitations upon the fruit to be gathered tend to limit the quest itself, and in any case it is something to be assured that only that can be taken which has been directly used in perpetrating the crime.” United States v. Poller, 43 F2d 911, 914 (2nd Cir. 1930) Cf., Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664 at 666 (1961); Allen, The Wolfe Case: Search and Seizure, Federalism, and the Civil Liberties, 45 Ill L Rev 1, 4 (1950).
It is occasionally intimated that the reason for excepting instrumentalities of the crime from the proscription against search and seizure is to remove from the accused that which might be used again in the commission of other crimes. Kaplan, supra at 477; Note, 1 Baylor L Rev 56, 63 (1948). Cf., Rule 41, Federal Rules of Criminal Procedure, which permits a warrant to be issued to search for any property “(2) designed or intended for use or which is or has been used as a means of committing a criminal offense * * 18 USCA, Rule 41 (1961).
Zap v. United States, 328 US 624, 66 S Ct 1277, 90 L Ed 1477 (1946); Landau v. United States Attorney for Southern District of New York, 82 F2d 285 (2d Cir 1936), cert. denied 298 US 665, 56 S Ct 747, 80 L Ed 1389; In Re No. 191 Front Street, 5 F2d 282 (2d Cir 1924); United States v. Lerner, 100 F Supp 765 (N.D. Cal 1951); United States v. Bell, 48 F Supp 986 (S.D. Cal 1943).
Compare Bushouse v. United States, 67 F2d 843 (6th Cir 1933) with Foley v. United States, 64 F2d 1 (5th Cir 1933). In Bushouse books and papers relating to business transaction were held not to be a means of committing the felony of conspiracy to violate the prohibition law, while in the Foley case the exact same type of records were held to be an instrumentality of the same crime of conspiracy.
In Zap v. United States, 328 US 624, 66 S Ct 1277, 90 L Ed 1477 (1946) the majority of the court regarded a cancelled check used in defrauding the government as a means of committing the crime, whereas the dissent considered it evidentiary only and immune from seizure as incident to arrest. (However, the dissent seems to say that the check was seizable under a search warrant. This would seem to be inconsistent with the holding in United States v. Gouled, 255 US 298, 65 L Ed 647, 41 S Ct 261 (1921)). See, Reynard, Freedom from Unreasonable Search and Seizure— A Second Class Constitutional Right?, 25 Ind L J 259, 282 (1950); Comment, 20 U Chi L Rev 319, 321 (1953).
See e.g., Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399 (1947).
See Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 676 (1961); Comment, 20 U Chi L Rev 319, 323 (1953). But cf., Weeks v. United States, 232 US 383, 392 (1914); United States v. Bell, 48 F Supp 986, 995 (S.D. Calif 1943). Wis Stat Ann 963.02 (10) (1958), provides that “instruments or other articles which have been used in the commission of or may constitute evidence of a crime” may be taken under a search warrant.
Lasson, The History and Development of the Fourth Amendment to the United States Constitution, 79-143 (1937); Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif L Rev 474 (1961); Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664 (1961); Comment, 20 U Chi L Rev 319 (1953); Reynard, Freedom from Unreasonable Search and Seizure—A Second Class Constitutional Right?, 25 Ind L J 257 (1950).
“There are exceptional circumstances in which, on balancing the need for effective law enforcement against a right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with.” Johnson v. United States, 333 US 10, 14-15, 68 S Ct 367, 369, 92 L Ed 436, 440-441 (1948).
Johnson v. United States, 333 US 10, 68 S Ct 367, 92 L Ed 436 (1948).
There is still some doubt as to whether United States v. Rabinowitz, supra, is still in full vigor. Chapman v. United States, 365 US 610, 615, 81 S Ct 776, 5 L Ed2d 828 (1961); United States v. Jeffers, 342 US 48, 51, 72 S Ct 93, 96 L Ed 59 (1951); Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 702-703 (1961).
Einhorn, The Exclusionary Rule in Operation—A Comparison of Illinois, California and the Federal Law, 50 J Crim L, C & P S 144, 151 (1959).
“It seems to us, after reading each of the majority opinions of the Harris and Rabinowitz cases, that no justification other than the bare fact of making a lawful arrest on the premises was advanced for upholding the search for and seizure of illegal goods or contraband in each instance. The latter use of fruits of the crime thus obtained as evidence in the conviction of Harris and Rabinowitz was considered lawful as a matter of course. It is our view that every pertinent provision of the Fourth Amendment to the Federal Constitution was by-passed when each search and the results thereof were stamped by those cases with validity. It is our conclusion, too, the dissents to the two majority opinions are based upon such irrefutable reasoning as to why search and seizure should not have been permitted that this court is persuaded to follow them rather than the holdings of the majority opinions.”
United States v. Rabinowitz, 339 US 56, 68, 70 S Ct 430, 94 L Ed 653 (1950) (dissenting opinion); Harris v. United States, 331 US 145, 155, 67 S Ct 1098, 91 L Ed 1399 (1947) (dissenting opinion); United States v. Kirschenblatt, 16 F2d 202 (2d Cir 1926).
See Taylor v. United States, 286 US 1, 6, 52 S Ct 466, 76 L Ed 951 (1932) where the court noted that “there was no probability of material change in the situation during the time necessary to secure such warrant.”
The record does not disclose the lapse of time in this respect, but it appears that the police had knowledge of the details of the crime approximately six hours prior to their entrance to defendant’s apartment.
The fact that the arresting officers had information sufficient to obtain a warrant has been referred to in the cases as a relevant factor in determining the reasonableness of the search without a warrant. Taylor v. United States, supra note 22; Go-Bart Co. v. United States, 282 US 344, 358, 51 S Ct 153, 75 L Ed 374 (1931); United States v. Kaplan, 89 F2d 869, 871 (2d Cir 1937).
It is appropriate here to raise the question put in Kizer, The Fourth Amendment to the Federal Constitution—The Harris Case, 7 Lawyers Guild Rev 122, 126 (1947), “But, if the police knew in advance what they were searching for in such detail, where is the hardship of a rule that insists that a search warrant must be obtained before such a search can be made? If the law officers cannot comply with the requirements of a search warrant, assuredly they should not be allowed to evade those requirements by making such a search under cover of the arrest of one of the occupants of the place searched.”
Kaplan, Search and Seizure: A No-Man’s Land in the Criminal Law, 49 Calif L Rev 474, 481 (1961). But cf., Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 691 (1961).
It has been recognized elsewhere that although one’s privacy has been lawfully invaded the seizure may be illegal. Thus in United States v. Scott, 149 F Supp 837 (D D C 1957), it was held that officers lawfully on the owner’s premises could not even seize contraband in plain sight but instead were required first to obtain a search warrant.
United States v. Rabinowitz, 339 US 56, 70 S Ct 430, 94 L Ed 653 (1951); Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399 (1947).
See also, cases cited in note 20, supra.
“[T]he search is not unlawful merely because it precedes rather than follows, the arrest.” People v. Duroncelay, 48 Cal2d 766, 771, 312 P2d 690, 693 (1957); People v. Simon, 45 Cal2d 645, 290 P2d 531 (1955)*
* N.B. Justice Traynor, in a footnote at 45 Cal2d 645, 649, 290 P2d 531, 533, distinguishes cases cited for a contrary rule by saying that there were other reasons for deciding the search unreasonable, that the statement in the case was dictum, that the officers had insufficient grounds for believing the offense was being committed in their presence, and that the defendant was not present or not discovered by the officers until after their search had been completed.
See e.g., Judge Learned Hand’s opinion in United States v. Kirschenblatt, 16 F2d 202 (2d Cir 1926).
It has been said that “* * * law enforcement officers try to avoid warrants whenever possible, and try to make their searches incident to a lawful arrest thereby avoiding altogether the necessity of a warrant.” Einhorn, The Exclusionary Rule in Operation—A Comparison of Illinois, California and the Federal Law, 50 J Crim L, C & P S 144, 151 (1959).
Cf., Search and Seizure in the Supreme Court: Shadows on the Fourth Amendment, 28 U Chi L Rev 664, 666 (1961); Allen, The Wolfe Case: Search and Seizure, Federalism, and the Civil Liberties, 45 Ill L Rev 1, 3-4 (1950).