Supplemental Opinion on Rehearing.
POWELL, P. J.Counsel have devoted so much time to their brief or “suggestions” and to a supplemental brief, all in support of their petition for rehearing, and the technique of presentation has been such that we feel impelled to consider that portion of the opinion about which complaint is made. That part, in spite of a portion of the opinion considered by counsel as salutary, did not permit the accused to escape the penalty assessed for the admitted violation of' the constitutional and statutory provisions of this state prohibiting illegal possession of intoxicating liquors. The exhaustive treatise is an excellent presentation of the view of counsel long used to vigorous representation of persons violating the liquor laws. The reasoning would bear evidence of that. And the state is not without bias in that favored would be the rule to permit exploratory searches after any arrest. So, in our effort to arrive at a reasonable and rational solution of the problem, much time was devoted to both the preparation and thereafter to the consideration of the conclusions of this court now complained of. The present effort is to clarify some points claimed subject to misunderstanding.
It is insisted that before the right to search for firearms accrued to the officers they must have had reasonable ground for such action. With this we agree. But we conclude that in that the defendant was arrested in the nighttime after passing one truck in a no-passing zone and after crowding another off on the shoulder of the road, that the officers in approaching the accused’s car *315would have been most negligent and unnecessarily risking their lives if they had not observed elementary precautions in making the arrest under the conditions then confronting them, and which required the search of the defendant and his immediate presence, such as the seats and glove compartment of his car, not for contraband, it is true, but for weapons, in the interest of their safety and to prevent escape. The assumption is that officers perform their duties as justified by the circumstances. This, of course, is a rebuttable presumption. And it is true that while their subsequent direction to the defendant to drive his car to the courthouse at Yinita, some eight miles distant (but under the surveillance of the officers who followed), demonstrated that they no longer considered him a risk and liable to escape, after the search of the glove compartment and the seats, and demonstrated that they did not consider him under the influence of liquor, such could not nullify their original right upon the reasonable grounds stated, to satisfy themselves as to these matters.
We would make clear that not every arrest of a motorist for a traffic violation would justify a search of the seats and glove compartment for weapons. There must be facts and circumstances observed by the officers to cause them in good faith to believe that the motorist is armed, is dangerous, or apparently intends to escape. Each case necessarily must stand or fall on its particular facts and circumstances.
There is the question as to when the officers demanded that the defendant “get out and open up that trunk”. Prom what we have said in the opinion, the officers had no right to search the turtle back simply by reason of the traffic violation.
On direct examination the defendant testified:
“Q. What happened immediately upon stopping? A. They stopped me and told me that I had passed a truck, or two trucks, in a no-passing zone. Q. What did you say? A. I said that I didn’t. Q. They then said you crowded a truck off the road, what did you say? A. I said that I didn’t. Q. Then what did they say? A. Said, ‘Get out of the car and open up that trunk.’ ”
On cross-examination on the point of what happened, defendant testified:
“Q. Mr. Brinegar, when you were stopped on the highway, a search followed? A. They took a light and shined it around. Q. Did they search inside the automobile? A. I wouldn’t really say they searched. They shined a light. Q. Do you know whether or not they found anything? A. I think they found a half pint of whiskey — it had some of it taken out.”
Officer Carr testified that after they observed the defendant pass a truck going up a hill and force an oncoming truck off the highway, they stopped defendant and placed him under arrest. He was asked: “What did you find in the vehicle at the time when you stopped it?” He answered that they found a pint bottle of whiskey, with about half gone. That they did not immediately search the rest of the ear because it was locked.
The accused’s downfall here was having the liquor in a place convenient for rapid procurement and use of firearms or other weapons. And the circumstances stated having afforded a reasonable foundation for the search for weapons, to grasp from the officers the very right affording a reasonable hope of survival in their precarious duties, would tend to tear down law enforcement, and destroy the very Constitution accused at this time so passionately professes to approve and see upheld, if it would in effect excuse him. And while a person charged with crime should receive the benefits of every constitutional provision, regardless of his past violations of the law, where from his admitted trade he has been in the *316habit of violating with impunity that very constitution for which he now expresses so great concern, it follows that the argument must fall rather flat.
Undoubtedly, if the officers had permitted the defendant to take possession of his car and take it out of their presence, any right they may have acquired to search it at a later time as incident to the arrest would have been lost, and thereafter a search warrant would have been required. But here the officers from what we have said, acquired the right to search the turtleback of the car for more contraband whiskey after finding the part of a pint in the glove compartment. They took possession of the car. There was continuity of possession until the turtleback was finally opened. They did not want to damage defendant’s turtleback if he did not have contraband. He pretended not to have the key and advised the officers that it was at his home in Vinita, where they were taking him to jail. And on arrival at Vinita accused was permitted to take a taxi and go home to procure the key, but he returned with further excuses. The officers incarcerated accused and decided to wait until daylight to complete the search of the car. They testified that the back was opened soon after the county attorney opened his office after 8:00 a.m. There had been six or seven hours delay, according to the testimony of the officers. Apparently it was convenient to leave the point of arrest out on the highway some eight miles from the county seat and go to the county seat to complete the search and to incarcerate the accused. We do not follow the reasoning that under the circumstances as here, would have forced the officer to tear into defendant’s car on finding it locked, rather than taking it out of the elements and away from possible traffic hazards and to a safe place at the county seat. It had to be taken into custody and impounded by reason of the traffic violation, and liquor violation until a charge could be filed and defendant arraigned and bond fixed. It was even subject to possible forfeiture had the county attorney seen fit to take such proceedings.
Counsel state:
“We most earnestly and respectfully submit that there can be no real question but that under the authorities and in law there is no distinction to be drawn as between search of a stationary automobile and a fixed building.” And It is further stated: “Whether or not the officers in this case had a right to search Brinegar’s ear on the highway is most doubtful; but whether or not they did, at a different time and place, the next morning and at a place distinct from the scene of the arrest, their prior right served them no purpose. They only had the right to exercise their power then and there! They had no right to exercise their power thereafter or elsewhere!”
We have given consideration to the cases from this court and being in addition to Walker v. State, 89 Okla. Cr. 66, 205 P. 2d 335; Simmons v. State, 94 Okla. Cr. 18, 229 P. 2d 615; Thomas v. State, 27 Okla. Cr. 264, 226 P. 600; and Dean v. State, 37 Okla. Cr. 396, 258 P. 812, earnestly urged as supporting defendant’s argument just quoted. In the Dean case the two defendants were arrested coming out of a drugstore on some undisclosed charge and taken to jail, and one of the defendants gave an officer the key to his car parked at the curbing near the drugstore where he was arrested, and requested that the key be delivered to his brother. The officer proceeded to search the car and found a small amount of whiskey. Of course, the arrest being distant from the car, gave the officers no right to search in the absence of a search warrant, even if attempted immediately upon arrest. The key to the holding was the fact that the right to search without the aid of a search warrant never did exist.
In the Walker case the defendant was arrested for “loitering and investigation” and placed in jail. A key was obtained from him by the officer and *317used the day after to search his apartment without the defendant’s consent and without a search warrant. The basis for holding the search illegal was not the delay after the arrest, but for the reason that at no time did the officers acquire from the circumstances, the right to search the apartment without the authority of a search warrant.
In the Simmons case this court merely held that -incident to the lawful arrest of the defendant, the officers had the right to search the person and his immediate surroundings, but not to search the accused’s home in another county in the absence of a search warrant.
In the Thomas case the officers observed the defendant come out of his home and go toward a waiting automobile, carrying a bottle. The officers accosted him and he threw the bottle, breaking it, and said: “You fellows haven’t got anything on me.” Fragments of the bottle recovered by the officers contained whiskey. The defendant was immediately arrested and taken to jail. Later, the officers returned and searched defendant’s home without a search warrant, and found two more bottles of whiskey.
The punishment on conviction was modified in that it was held that the two bottles of liquor later obtained from the home were inadmissible. The reasons for the holding were not detailed. However, if the right existed to search the home without a warrant, at the time of the arrest, the right was not a continuing one to some disconnected time. But suppose the right accrues to officers to search a home or a place of business either by reason of a proper search warrant or otherwise, but a room or vault is discovered that is barred by steel and padlocked or locked by a tumble lock and the search would be in the nighttime. Could it in reason be argued that the officers thus stymied in completing the search, and with good reason to believe that contraband was there hidden, might not wait until an acetylene torch might be procured or a key or the combination be found by the accused who had so promised, so long as the officers had continuity of possession up to the culmination of the search thus , several hours delayed? Would the awaiting of day and either the procuring of the key to the lock or a torch be unreasonable? No case has been cited where a few hours delay in completing a search has been held unreasonable and illegal (where otherwise legal) where there was at no time an abandonment of the search and there was at all times a continuity of possession of the property in process of search.
It is still our conclusion that the delay in opening the turtleback of defendant’s automobile was not unreasonable, under the facts presented, and accordingly, the propositions urged on rehearing are denied, and the opinion as written is reaffirmed.
JONES and BRETT, JJ., concur.