(specially concurring).
I concur with the results reached by the majority but for a different reason. It is generally agreed that a warrantless search can be made, (1) where the defendant has voluntarily consented to a search, (2) as an incident to an arrest, and (3) of a movable vehicle where there is probable cause upon which to base a search warrant and (prior to the opinion of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 [1970]) not enough time to obtain one.
In the instant case there was no permission granted for the search. The restrictions placed upon a search as an incident to an arrest set forth in the Supreme Court case of Chimel v. California, 395 U. S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), by a footnote, were made specifically inapplicable to automobiles and I agree with the majority opinion that given an actual and valid arrest the search of the ■automobile in the instant case then was proper. I do not believe, however, that the validity of the search in the instant case is dependent upon an arrest.
As I read Chambers v. Maroney, supra, it simply states that as far as automobiles upon the public highway are concerned they do not receive the protection' and constitutional safeguards that the home does, and if the police officer has probable cause to believe that the contents of an automobile will support a later conviction for the possession of what he believes to be in the automobile he need not obtain a warrant before making the search. The *11statement in Chambers v. Maroney, supra, is as follows:
"On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained. The same consequences may not follow where there is unforeseeable cause to search a house. Compare Vale v. Louisiana [399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409], But as Carroll, [267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543] supra, held for the purposes of the Fourth Amendment there is a constitutional difference between houses and cars.” Chambers v. Maroney, supra, 399 U.S. 42 at 52, 90 S.Ct. 1975 at 1981-1982.
The Carroll case is a 1924 United States Supreme Court case in which the court made it perfectly clear that the right to search an automobile is not dependent upon the legality of the arrest. Carroll stated as follows:
“The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.” Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed.2d 543 (1924).
By Chambers v. Maroney, supra, the requirement that the police had to take the vehicle to the station house and then obtain a warrant if possible is no longer necessary and Preston v. United States, 376 U. S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) on this point appears to have been overruled.
Looking at the totality of the circumstances, the fact that the defendant was driving erratically, the fact that the defendant attempted to hide the paper bag by kicking it under the seat, the fact that he was not the registered owner of the vehicle, leads me to believe that there was probable cause for the officer to form a reasonable opinion that the defendant was guilty of some crime including automobile theft, and that there was in the automobile either a weapon or contraband merchandise, or the fruits of a crime. The California Court of Appeals recently stated:
"In view of the combination of suspicious circumstances present in the case at bench, it is unnecessary for us to decide whether any one of them standing alone, would have sufficed to provide probable cause for the search. * * * The fact that at the time they first signaled appellant to stop, the officers had insufficient reason to believe that the car was stolen or that its occupants were involved in narcotic activity is of no consequence. Neither is the subjective state of mind of either officer a controlling consideration. The determinative test of existence or non-existence of probable cause is an objective one. It is simply this: Were the actions of the appellant in this case, viewed in the context of the attendant circumstances, such that they ‘would lead a man of ordinary care and prudence to believe or to entertain a strong suspicion’ that appellant was engaged in criminal activity.” People v. Goodrick, 11 Cal.App.3d 216, 89 Cal.Rptr. 866, 868, 873 (1970).
For these reasons I believe that the search was reasonable under the circumstances and not violative of the Arizona and United States Constitutions.
I am mindful that the Supreme Court has returned this case to us after vacating our previous judgment ordering us to consider further the matter “in light of Chambers v. Maroney.” While I admit that I *12am somewhat confused in ascertaining completely the intentions of the Supreme Court, I do not believe it is any more rational to assume that by vacating the judgment and remanding the case to us that the Supreme Court intended that we would reverse the conviction in the light of Chambers v. Maroney, supra, any more than it is correct to assume that the Supreme Court intended that we affirm the conviction in the light of Chambers v. Maroney, supra. A reading of Chambers v. Maroney, supra, and the facts in this case as affected by said decision leads me to believe that our prior decision was correct and that there was probable cause to search the automobile.
I concur in the affirmance of the judgment.