dissenting.
The majority has rejected the contentions of the defendant on the basis that the contentions were without merit and in turn affirmed the judgment entered by the trial court. Consequently, I would question that whatever views I might express would ultimately have any effect upon the end result. There is, however, some duty here, as I view it, to make known the reasons why I am persuaded that a new trial should have been granted and thus for my purposes I will confine my discussion to the error made by the trial judge in admitting into evidence a pistol that came to the State as a result of an illegal search of the subject automobile.
That ruling was based, of course, upon the trial judge’s view that the defendant had no standing to raise this critical question relating to search and seizure, which the Attorney General concedes was erroneous. Nonetheless, the State insists that the ruling was rendered harmless inasmuch as the arrest and the search of the automobile were made upon probable cause. I will reluctantly go along with the argument pertaining to the arrest but I cannot agree with the argument that there was probable cause for the subject search. For instance, it is uncontroverted that the Newcastle police made no search of the vehicle at the time and place where it was stopped and the warrantless search was made several hours later by the Casper police at the Newcastle police station. It was that search which resulted in the seizure of the pistol and the use of it as evidence by the State at the trial.
So far as I am concerned this is a classic example of the police circumventing the basic and fundamental requisites of the need for a search warrant under the Federal Constitution where, as here, the record does not disclose the existence of any circumstances that justify the substitution of the police for the magistrate in determining the existence of probable cause. Granted, there may be exigencies presented in connection with mobile vehicles but such is not the case here. To so hold would for all intents and purposes take away whatever protection is afforded by the constitutional provisions and that is not in keeping with my concept or my reading and understanding of the proper approach to the *1175question as reflected by recent pronouncements emanating from the United States Supreme Court. It is true that the members seem to have difficulty in reconciling their views as reflected in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, but absent exigencies there is much unanimity in the holdings reflected by the statement contained in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 1979, 26 L.Ed.2d 419, rehearing denied 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94, stating as follows:
“Even so, the search that produced the incriminating evidence was made at the police station some time after the arrest and cannot be justified as a search incident to an arrest: ‘Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest.’ Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), is to the same effect ; the reasons that have been thought sufficient to justify warrantless searches carried out in connection with an arrest no longer obtain when the accused is safely in custody at the station house.”
I would add a few comments with respect to the absence of any emergency or exigency. To me it seems clear that the search of the automobile was not incident to the arrest; there could be no reasonable belief that the contents of the vehicle or the jurisdiction over the vehicle would be lost; there was no knowledge of the existence of the pistol in the vehicle or even when discovered there was nothing disclosed by the circumstances which would support a belief that lives were endangered by the presence of the pistol in the locked vehicle which in turn was in the exclusive control of the police; and lastly no excuse was even offered at the trial attempting to justify the warrantless search when in fact there was ample time and opportunity to present the matter to the magistrate. To say the least, I think a substantial doubt is raised with respect to such search and perforce as the matter now stands it must be decided against the State.
Thus, I would give no credence to the claim that the ruling on the admission of the pistol into evidence could be upheld by resort to the doctrine of harmless error. See Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, 24 A.L.R.3d 1065, rehearing denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241. Consequently, I am persuaded that the ruling was prejudicial and can be corrected only by the granting of a new trial.