I concur in the result arrived at by the majority. I feel it necessary, however, to state my views relative to some dicta and certain possible inferences which may be drawn from the majority opinion and with which I would disagree.
The majority holds that the search of defendant cannot be upheld, inter alia, as a search incident to an arrest for automobile theft as there was no probable cause to arrest him for such a crime. I concur. The Attorney General has not shown that the police officer who stopped defendant was aware of facts that would justify a belief that the defendant was in possession of a stolen automobile. Moreover, as the majority points out, the issue was not raised in the trial court and it is too late to raise it for the first time at the appellate level. In light of these facts, I deem it inappropriate to discuss what factors may or may not constitute probable cause to arrest for such an offense. The majority nevertheless speculates on such matters and in doing so not only relies on conclusions that are beyond this court’s expertise but also fails to substantiate its conclusions by any authoritative description of actual police practices or experiences. The Attorney General has failed *212to show that in. the trial court the prosecution introduced evidence which would support a belief that defendant was in possession of a stolen vehicle, and I would not speculate in dicta which appear to me to be unnecessary.
Further, I read the opinion of the majority as holding that the transportation of a traffic law violator to a magistrate pursuant to Vehicle Code section 40302 or 40303 does not justify subjecting the arrestee to a search. I concur in this holding insofar as it relates to a full body search. The majority, however, does not reach the question whether the police may make a pat-down search prior to such transportation.1 I am of the opinion that we should eliminate any doubt and that we should approve a pat-down search in such circumstances.
The United States Supreme Court has set forth a general rationale in the search and seizure area which aids in the resolution of this issue. “In order to assess the reasonableness of [police] conduct as a general proposition, it is necessary ‘first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen,’ for there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’ Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537 . . . (1967). And in justifying the particular intrusion [there must be] specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Terry v. Ohio (1967) 392 U.S. 1, 20-21 [20 L.Ed.2d 889, 905-906, 88 S,Ct. 1868].)
The balance of the governmental interest and the intrusion on individual rights, of course, varies with each particular situation. In Terry v. Ohio, supra, 392 U.S. 1, the court held that before a pat-down search in non-arrest circumstances can be made, the officer must have reason to believe he may be dealing with an armed and dangerous individual. On the other hand, in the case of a search incident to a lawful nontraffic arrest a full body search can be made of the arrestee and a search of the immediate area under his control from which he might take a weapon or destroy evidence *213is also permitted. (Chimel v. California (1968) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034].)
The custody of a person who is to be transported to a magistrate is different from the “custody” of the Terry “stop and frisk” situation, and is indeed similar to the custody of someone who is searched incident to an arrest on a criminal charge before being transported to a detention facility. It is clear that the balance between the factors involved—the safety of the police officer required by law to transport the individual detained and the relatively minor intrusion on privacy of a pat-down search—weighs in favor of permitting pat-down searches in such circumstances.
As the majority points out, this court has recognized the importance of protecting police officers against unnecessary exposure to- risk of danger and of according due weight to this factor in justifying limitations on an individual’s constitutional rights. We have said: “We are not unmindful of the dangers daily faced by the men who bear the burden of policing our streets and highways, and of the fact that even a minor traffic citation incident can occasionally erupt into violence. We agree with the United States Supreme Court that ‘Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties. . . .’ The courts should do all in their constitutional powers to minimize these risks.” (People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 829 [91 Cal.Rptr. 729, 478 P.2d 449], quoting from Terry v. Ohio, 392 U.S. at p. 23 [20 L.Ed.2d at p. 907].)
The safety of police officers is one of the primary justifications for a search without a warrant incident to an arrest. In Chimel the court said: “A similar analysis underlies the ‘search incident to arrest’ principle, and marks its proper extent. When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise the officer’s safety might well be endangered, and the arrest itself frustrated. . . .” (395 U.S. at pp. 762-763 [23 L.Ed.2d at p. 694].)
It is important to note that, in a search incident to an arrest other than for a misdemeanor traffic violation, the validity of a search for weapons on or within reach of the arrestee does not depend on the nature of the crime for which the person was arrested. The search for weapons is valid even where the crime was a nonviolent one. (Cf. Preston v. United States (1964) 376 U.S. 364, 365 [11 L.Ed.2d 777, 779, 84 S.Ct. 881].) Thus, it is an oversimplification of the factual situation to say pat-down searches cannot be allowed incident to the transportation of traffic arrestees because *214generally traffic law violators are not armed. There is no more reason to believe a person arrested for petty theft (Pen. Code, § 488) is armed than an automobile driver without identification whose nonconforming conduct requires that he be taken before a magistrate.
The critical factor in these or similar situations is not the greater likelihood that a person taken into custody is armed, but rather the increased, likelihood of danger to the officer if in fact the person is armed. When it becomes necessary that an officer confine a traffic law violator within his police vehicle, the officer risks the danger that the violator may be armed with and draw a weapon. This danger is not necessarily eliminated by handcuffing the traffic law violator as he may still be able to reach a weapon secreted on his person. And, incident to the entire process of transportation, it may be impossible for the officer to keep the violator under constant surveillance by reason of the requirements of driving the vehicle and other responsibilities.2 In my opinion, the specifically articulable fact of the increased danger to the officer reasonably warrants the limited or relatively minor intrusion of the pat-down search in those instances when traffic law violators are transported to a magistrate pursuant to' the provisions of Vehicle Code sections 40302 or 40303.3
Further, the problem of extended detention of a traffic law violator who is transported before a magistrate pursuant to the provisions of Vehicle Code sections 40302 or 40303 and who cannot make bail or who is not released on a written promise to appear, demands that certain precautionary measures be taken thereafter. I do not read the majority opinion to imply otherwise. When the detention is brief, as in Terry, the problem is simple and few if any measures need be taken. When the detention is for a lengthened period of time, however, its character changes. The safety of police personnel and others and the integrity of detention facilities require that greater security measures be employed.
If in the instant case defendant had not been searched at the scene of the arrest but had been taken to a magistrate and was unable to' meet bail requirements within a relatively short period, police officers would have to *215detain him until bail money or a bond could be posted.4 Clearly in such a situation the police would be entitled to make a full search of defendant at that point in time prior to detaining him further. It would be an unreasonable burden to require law enforcement officers to segregate the person detained in some remote area of the custodial facilities removed from the jail population or assign an officer to watch over the arrestee until the required bail is posted which may be hours or days later. The safety of those detaining him, the safety of others, and the prevention of the introduction of contraband into the custodial facility require that such a person be subjected to a full search. (People v. Superior Court (Fuller) (1971) 14 Cal.App.3d 935, 945 [92 Cal.Rptr. 545] and cases cited; People v. Munsey (1971) 18 Cal.App.3d 440, 448 [95 Cal.Rptr. 811]; cf. People v. Ross (1967) 67 Cal.2d 64, 70 [60 Cal.Rptr. 254, 429 P.2d 606], reversed on other grounds, sub nom. Ross v. California, 391 U.S. 470 [20 L.Ed.2d 750, 88 S.Ct. 1850]; cf. also Davis v. Reynolds (N.D.Fla. 1970) 319 F.Supp. 20, 22.) The reasons for the rule apply to the detention of a traffic law violator who is unable to meet bail as well as to the detention of an arrestee who is booked on a criminal charge.
I am of the opinion that a pat-down search prior to the transportation of a traffic law violátor pursuant to Vehicle Code sections 40302 or 40303, and a full search incident to extended detention awaiting posting of bail are both reasonable and constitutional searches. Because I read the majority opinion as implying nothing to the contrary, I concur in that opinion.
A valid pat-down search incident to the transportation in the present case, however, does not validate the entire search since the finding of the soft object did not give reasonable cause to believe defendant had a weapon. (People v. Mosher (1970) 1 Cal.3d 379, 394 [82 Cal.Rptr. 379, 461 P.2d 659].) Thus, the evidence discovered as a result of the search was inadmissible and the trial court properly granted defendant’s motion to suppress,
BURKE, J.I agree with the views expressed by Chief Justice Wright in his concurring opinion.
I disagree, however, with certain statements constituting dictum of the *216majority, which are not mentioned by the Chief Justice. The statements as I read them, suggest that (1) the arresting officer’s subjective belief regarding defendant’s guilt of auto theft is of critical importance in deter-. mining the legality of the arrest and (2) the legality of an arrest is tested solely on the basis of the legal theory employed by the officer in making the arrest. The statements in the first category are erroneous for the reasons stated in my concurring and dissenting opinion in People v. Miller (post, p. 219 [101 Cal.Rptr. 860, 496 P.2d 1228]). As we shall see, the statements in the second category are likewise erroneous.
Under views expressed by United States Supreme Court justices the legality of an arrest is not tested—as the majority here indicate—solely on the basis of the legal theory employed by the officer in making the arrest. In Wainwright v. City of New Orleans, 392 U.S. 598 [20 L.Ed.2d 1322, 88 S.Ct. 2243], wherein the court dismissed a writ of certiorari as improvidently granted, a concurring opinion by Justice Portas (joined in by Justice Marshall) states (at p. 599 [20 L.Ed.2d at pp. 1322-1323]) that he is “not prepared to say that, regardless of the presence or absence of adequate cause for police action, the arrest [made on a charge of vagrancy while loitering] or the attempt by the officers to search [at the police station following the arrest] is unlawful” and that he “should want to know whether, in fact, there was constitutionally adequate cause for the police to suspect that the [petitioner] was the man sought for murder.” A dissenting opinion by Chief Justice Warren expresses disagreement with Justice Fortas and states (at pp. 604-605) that it is irrelevant that the record does not permit a determination whether the petitioner could have been lawfully arrested for murder since he was not arrested or booked for murder. According to the dissent (at p. 606, fn. 6), “when a controversy arises over the legality of the arrest, the police should be held to the booked offense.” The booked offense, of course, may differ from the offense the officer had in mind as the basis for the arrest. Thus both, the foregoing views are contrary to the majority opinion in the instant case.
Both federal and state courts have upheld arrests on grounds other than that relied upon by the officer in making the arrest. (E.g., Klingler v. United States (8th Cir. 1969) 409 F.2d 299, 304 [defendant arrested for vagrancy; held that there was not probable cause to arrest him for that crime but that the arrest was lawful since there was probable cause to arrest him for robbery]; Store of South Dakota ex rel. Thunderhorse v. Erickson, 328 F.Supp. 1149 [facts similar to Klingler]; People v. Superior Court (Johnson), 15 Cal.App.3d 146 [92 Cal.Rptr. 916] [defendant arrested for “investigation of burglary”; held that stated ground was.inadequate but arrest was lawful since there was probable cause to believe him guilty of disorderly conduct *217and burglary and attempted burglary]; People v. Kelley, 3 Cal.App.3d 146 [83 Cal.Rptr. 287] [defendant arrested for drunk driving; held unnecessary to determine if probable cause to arrest him for that offense since there was probable cause to arrest him for being found in a public place under the influence of intoxicating liquor and possession in car upon highway of alcoholic beverage in open container]; People v. Walker, 273 Cal.App.2d 720, 725 [78 Cal.Rptr. 439] [defendant arrested for robbery; held unnecessary to determine if probable cause to arrest him for that offense since there was probable cause to arrest him for possession of concealed weapons]; Commonwealth v. Lawton, 348 Mass. 129 [202 N.E.2d 824, 826] [defendant arrested for being abroad in the nighttime; held unnecessary to decide constitutionality of statute proscribing that offense since there was probable cause to arrest for breaking and entering, and arrest was therefore lawful]; see generally American Law Institute, A Model Code of Pre-arraignment Procedure (Proposed Official Draft No. 1, April 10, 1972) at pp. 15-17 & 136.)
Penal Code section 841 requires that an officer inform the person to be arrested of, among other things, “the cause of the arrest.” However, a failure to announce the cause of the arrest does not invalidate the arrest or search incident thereto (see People v. Maddox, 46 Cal.2d 301, 305 [294 P.2d 6]), nor does the officer’s announcement of the wrong offense have that effect (People v. Farley, 20 Cal.App.3d 1032, 1037 [98 Cal.Rptr. 89], People v. Kelley, supra, 3 Cal.App.3d 146,151).
The majority claim that Agar v. Superior Court, 21 Cal.App.3d 24 [98 Cal.Rptr. 148], contains “an excellent analysis” of the point that an arrest cannot be justified by theories invented after the arrest. I disagree. Agar states, inter alia, that although probable cause is measured by an objective standard “it must first be established that the policeman did entertain a belief that a particular crime had been committed [by the person arrested].” The quoted statement is not required by the authority there cited and is erroneous for the reasons stated in my concurring and dissenting opinion in People v. Miller, supra.
Agar also states that although in some contexts it concurs with the proposition that “a mere mistake by an officer in stating the legal basis or theory for the arrest is not sufficient to make an arrest illegal” each of the cases there cited “assumes that the arresting officer had in mind the conduct to which both charges related” and that “courts have not approved the making out of whole cloth an arrest for an offense never contemplated (or if contemplated, rejected) by the officer . . . .” However, an arrest is not made out of “whole cloth” if there was probable cause to believe the arrestee guilty *218of a felony, and courts have upheld arrests and searches incident thereto where the proper basis for the arrest was rejected or so far as appears not contemplated by the arresting officer, and the conduct the officer had in mind as the basis for the arrest was not the conduct for which the court concluded that a lawful arrest could be made. (See, e.g., Klingler v. United States, supra, 409 F.2d 299; People v. Walker, supra, 273 Cal.App.2d 720, 725.)
The only other authority cited by the majority is dictum, in People v. Superior Court (Fuller), 14 Cal.App.3d 935, 949-950 [92 Cal.Rptr. 545], and Guevara v. Superior Court, 7 Cal.App.3d 531, 535 [86 Cal.Rptr. 657], Neither case cites any authority to' support the dictum, and Guevara was not concerned with the question of the lawfulness of an arrest.
In the instant case defendant was arrested for ordinary traffic violations and, as the majority herein point out, absent special circumstances a search cannot be made of the driver as an incident to an ordinary traffic arrest. However, special circumstances would have been present had there been probable cause to arrest for a felony. In any event the broad language of the majority opinion is not limited to the facts of this case.
I would disapprove cases such as Agar v. Superior Court, supra, 21 Cal.App.3d 24, and People v. Superior Court (Fuller), supra, 14 Cal.App.3d 935, to the extent they are inconsistent with the views I have expressed herein.
McComb, J., concurred.
The Majority does not reach this question because even if the pat-down search is valid, the soft object which was found would not justify the full search that was made. (People v. Mosher (1970) 1 Cal.3d 379, 394 [82 Cal.Rptr. 379, 461 P.2d 659].)
The question of the validity of a pat-down search' incident to transportation is, of course, separate from the one whether the police may conduct a pat-down search as an incident to a citation for a traffic violation. Without the additional element of the transportation or other justification, it is clear that such a pat-down search is invalid.
Even if it is assumed that a pat-down search is sometimes unnecessary because of other protective measures, we cannot assume that all peace officers who transport traffic law violators (see Veh. Code, § 40300) will always have access to such measures.
The intrusion would seem to be no greater than the statutorily required “seizure” of the traffic law, violator (Terry v. Ohio, supra, 392 U.S. 1, 19 [20 L.Ed.2d 889, 904]) and his forced ride to the magistrate (generally in handcuffs).
The language of the majority that the traffic law violator “must immediately be released on bail or written promise to appear” (ante, p. 209) cannot mean that if the magistrate feels bail is necessary and if the violator cannot meet bail, he must be released on a written promise to appear. Such a result would not only contravene the Legislature’s purpose of receiving satisfactory assurance the violator will appear later, but would make senseless the statutory requirement that the violator be taken before a magistrate at all. The option as to whether the traffic law violator is to be released on bail or written promise is that of the magistrate, not of the traffic law violator, and the statutory provision is satisfied when the magistrate makes one or the other alternative available.