(dissenting) — I believe the majority misconstrues the issue on appeal when it states:
The question then is whether the term “premises” includes a vehicle parked on the street at the curb in front of the house to be searched.
It is clear that upon a showing of probable cause a warrant may be issued to search (1) specifically described premises; or (2) a specifically named or described person. In this case, both types of searches are combined in one warrant, i.e., a search of (1) premises located at 1005 North Third Street, and all buildings and outbuildings thereon; and (2) the person of the defendant, Kerry Cottrell, “if found thereon.” In my view, the question is whether the peripheral language “if found thereon” absolutely limits the scope within which an otherwise valid warrant for the search of defendant’s person could be executed. I do not believe so and, therefore, respectfully dissent.
The majority properly recognizes that “It is constitutionally essential to the validity of a search warrant that it describe with sufficient particularity the place to be searched, to enable the officers to locate the premises with certainty.” The reason for such a rule is apparent: to assure that only the place described in the warrant “to the exclusion of all others” will be searched. Likewise, the validity of a warrant to search a person depends essentially upon whether it describes the person to be searched with such particularity that he may be identified with reasonable certainty. See 68 Am. Jur. 2d Searches and Seizures § 79, at 733-34 (1973). The rule of strict construction referred to in the majority opinion clearly applies to the description of the premises or the person (s) to be searched.
However, I have found no Washington case that has applied this rule to peripheral words such as “if found thereon” that immediately follow a specific description of a named person. The cases cited in support of the majority’s statement that “the search of persons on premises authorized *650to be searched ... is limited” are not in point.4 Néither are the cases footnoted in 68 Am. Jur. 2d Searches and Seizures § 107, at 761-62 (1973), as authority for the quotation in the majority opinion in point. They do not involve warrants for a search of specifically named persons. Finally, the citations contained in footnote 1 of the majority opinion are not in point for the same reason. I do not believe the broad language contained in the cases relied upon in the majority opinion should be applied to require a literal application of peripheral language in a warrant that specifically describes the person to be searched. In my view, such language should either be treated as surplusage or reasonably applied to the factual circumstances of each case.
Other jurisdictions have construed warrants authorizing a (1) search of a particular place, and (2) the search of described persons as in the case before us. Those jurisdictions do not consider the description of the place to be searched as words of limitation upon a valid warrant to search a particular person. Instead, they distinguish between the two authorized searches and have consistently held that “if a warrant is essentially valid or is valid as to one command and not as to the other, the parts not essential or invalid may be treated as surplusage.” Dow v. Maryland, 207 Md. 80, 113 A.2d 423, 425, 49 A.L.R.2d 1205 (1955); see People v. Staes, 92 Ill. App. 2d 156, 235 N.E.2d 882 (1968); 68 Am. Jur. 2d Searches and Seizures § 79 (1973).
In Dow v. Maryland, supra, the warrant commanded the police to “go to the vicinity of 2115 West North Avenue” and there search three men who were previously described and who would be identified by an officer. The search actually *651took place eight blocks from the premises described in the search warrant. Similar to the defendant’s challenge herein, the appellants in Dow contended that the warrant could only be validly executed “in the vicinity of 2115 West North Avenue.” In answer, the court found that the warrant sufficiently described the appellants and, therefore, it was not essential to the validity of the search of their persons that such search be restricted to the particular premises described. Dow v. Maryland, supra at 425.
In the recent case of State v. Malave, 127 N.J. Super. 151, 152, 316 A.2d 706, 707 (1974), the warrant under consideration authorized a search of
the premises of 851 Madison Ave 3rd floor and all parts connected thereto. Plus a Puerto Rican male in his forties about 5'6 in height medium build who lives at said address.
The defendant therein was searched on the street, a considerable distance from the address specified in the search warrant. He argued that the warrant authorized the search of the person only at or near such address, and not at some other location. The court disagreed, stating:
We believe, on the other hand, that the warrant authorized two independent searches — one of a person and the other of a place. We see no reason why a warrant to search a person must specify the place where he is to be searched.
The warrant in the case before us authorized a search of a place and a search of named persons. As with a warrant to search a place, a warrant for the search of persons is constitutionally valid if it describes with sufficient particularity the person (s) to be searched. Here, the warrant was issued upon probable cause and the defendant is described with sufficient particularity. In light of the above cases, the clause “if found thereon” is not necessary to the constitutional validity of the warrant for the search of defendant’s person. Therefore, at the very least, the phrase “if found thereon” should not be construed to *652invalidate an otherwise constitutional search of defendant’s person where he is found on a public street immediately adjacent to the premises being searched.
Further, and most important, we must not lose sight of the constitutional prohibition against “unreasonable searches and seizures”:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seárches and seizures, shall not be violated, ... .
U.S. Const. amend 4. This restriction is not directed against all searches and seizures, but only against unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222, 4 L. Ed. 2d 1669, 80 S. Ct. 1437 (1960); Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 899, 88 S. Ct. 1868 (1968). There being no “fixed formula” for determining the reasonableness of the search, each case must be decided on its facts and the surrounding circumstances. United States v. Rabinowitz, 339 U.S. 56, 63, 94 L. Ed. 653, 70 S. Ct. 430 (1950); Mapp v. Ohio, 367 U.S. 643, 653, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R.2d 933 (1961); Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963); State v. Patterson, 83 Wn.2d 49, 61, 515 P.2d 496 (1973).
In the present casé, while the search of the premises was in progress, Charlotte Cresswell and the defendant Cottrell arrived on the scene in defendant’s car, parking on the street in front of the premises. An officer, recognizing the defendant, approached the car and escorted the occupants into the house where a search of defendant’s person revealed a large quantity of heroin. The fact that the defendr ant was first detained on the public street in front of the premises and not “found thereon” is considered by the majority to be determinative on the issue of reasonableness, i.e., that the search went beyond the scope of the warrant and is, therefore, unreasonable. However, such an inquiry stops short of the crucial issue, i.e., whether upon review of all the facts and surrounding circumstances the search was reasonable or unreasonable.
*653Clearly, the warrant authorizes a search of defendant’s person. The majority holds that before the search can take place, defendant must be found on the premises. Here, the defendant was found within a few feet of the property line with a circumstantial inference that he intended to go upon the premises. In that factual circumstance, peripheral language in a warrant such as “if found thereon,” if not regarded as surplusage, should at least be reasonably construed to uphold the search. As pointed out by the majority, constitutional protections should not be used to reach absurd results. To strike down this search pursuant to a valid warrant, in the context of the factual circumstances presented, is to play hide-and-seek with technicalities. In my opinion, the search was reasonable.
The majority opinion notes that because the affidavit contains the phrase “if found therein” and the form warrant contains the words “if found thereon,” the phrase must be strictly limited or literally applied. I find nothing in the record before this court to show that the issuing District Court Judge intended such literal limitation. Indeed, the facts contained in the affidavit support a search of defendant’s person without the peripheral phrase. Consequently, I find no constitutional obstruction to a reasonable interpretation or application of the phrase to the search under the circumstances of this case.
Defendant challenges the warrant upon the basis that it was not issued upon probable cause. My review of the record causes me to reach the opposite conclusion.
Further, I find no merit in defendant’s contention that he was denied a speedy trial under CrR 3.3. The procedural history reflected in the record prevents defendant from successfully claiming the benefits of this rule.
I would affirm.
Petition for rehearing denied April 30, 1975.
Appealed to Supreme Court May 6, 1975.
Tacoma v. Mundell, 6 Wn. App. 673, 677, 495 P.2d 682 (1972); “[W]e are of the opinion that the general search warrant to search the North Fife Street premises did not permit, by itself, a search of defendant’s person.”; Olympia v. Culp, 136 Wash. 374, 240 P. 360 (1925), warrant for the search of a premises only, court upheld the search of a person on the premises as incident to a lawful arrest; State v. Ryan, 163 Wash. 496, 502, 1 P.2d 893 (1931), warrant for search of a particular room. Court upheld search of appellant in the hall, finding probable cause to search his person without a warrant.