(dissenting)—The only issue in this case is whether, after the discovery of the controlled substance in the bedroom, the police had probable cause to arrest the defendant Thompson. If the arrest was constitutionally permissible, then the widely accepted inevitable discovery exception to constitutional evidentiary rules, also known as the hypothetical independent source rule, should be *305applied. See Somer v. United States, 138 F.2d 790 (2d Cir. 1943); State v. Williams, 285 N.W.2d 248 (Iowa 1979). See also 3 W. LaFave, Search and Seizure § 11.4, at 620-28 (1978); LaCount & Girese, "The Inevitable Discovery" Rule, an Evolving Exception to the Constitutional Exclusionary Rule, 40 Alb. L. Rev. 483 (1976); Note, The Inevitable Discovery Exception to the Constitutional Exclusionary Rules, 74 Colum. L. Rev. 88 (1974).
It is my belief this case meets all of the criteria for the application of the inevitable discovery rule. The majority, however, contends this is a case which falls under the principles expressed in Ybarra v. Illinois, 444 U.S. 85, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979). Ybarra is not in point. Here are the facts in that case as set forth by the Supreme Court:
On March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a "Complaint for Search Warrant" to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and:
"3. The informant related . . . that over the weekend of 28 and 29 February he was in the [Aurora Tap Tavern, located in the city of Aurora, Ill.] and observed fifteen to twenty-five tin-foil packets on the person of the bartender 'Greg' and behind the bar. He also has been in the tavern on at least ten other occasions and has observed tin-foil packets on 'Greg' and in a drawer behind the bar. The informant has used heroin in the past and knows that tin-foil packets are a common method of packaging heroin.
"4. The informant advised . . . that over the weekend of 28 and 29 February he had a conversation with 'Greg' and was advised that 'Greg' would have heroin for sale on Monday, March 1, 1976. This conversation took place in the tavern described."
On the strength of this complaint, the judge issued a warrant authorizing the search of "the following person or place: . . . [T]he Aurora Tap Tavern. . . . Also the person of 'Greg', the bartender, a male white with blondish hair appx. 25 years." The warrant authorized the police to search for "evidence of the offense of possession of a controlled substance," to wit, "[h]eroin, contraband, other controlled substances, money, instrumentalities *306and narcotics, paraphernalia used in the manufacture, processing and distribution of controlled substances."
In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, the officers announced their purpose and advised all those present that they were going to conduct a "cursory search for weapons." One of the officers then proceeded to pat down each of the 9 to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises.
The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first patdown of Ybarra, the officer felt what he described as "a cigarette pack with objects in it." He did not remove this pack from Ybarra's pocket. Instead, he moved on and proceeded to pat down other customers. After completing this process the officer returned to Ybarra and frisked him once again. This second search of Ybarra took place approximately 2 to 10 minutes after the first. The officer relocated and retrieved the cigarette pack from Ybarra's pants pocket. Inside the pack he found six tinfoil packets containing a brown powdery substance which later turned out to be heroin.
Ybarra, 444 U.S. at 87-89. The Court stated in Ybarra
a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.
444 U.S. at 91. I agree. Neither would "mere propinquity" give rise to probable cause to arrest, nor is this a case where the court is
asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, at least where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband."
444 U.S. at 94.
There were two ingredients not present in Ybarra which are the additional "independent factors" present in this case. First, in Ybarra the affidavit for the warrant did not *307say the bar premises were used for drug trafficking. Ybarra, at 90. In contrast, the affidavit here specifically states drug trafficking had occurred on the premises within the past 24 hours. Second, here the contraband which was the subject of the search was indeed found. No such discovery was made in Ybarra or in United States v. Di Re, 332 U.S. 581, 92 L. Ed. 210, 68 S. Ct. 222 (1948), relied upon so heavily by the Supreme Court and the majority.
Thus in this case we have "presence" plus a validly executed search warrant to enter premises where drug trafficking was suspected and the subsequent discovery of the contraband in plain view in a bedroom of the house.
Given these circumstances, to hold Thompson was not subject to arrest is to make one wonder what, if any, additional "independent factors" would prompt the majority to find probable cause for arrest. The Supreme Court recently held one leaving a house as the police were entering to execute a valid warrant to search the house for narcotics could be lawfully required "to remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible." Michigan v. Summers, 452 U.S. 692, 705, 69 L. Ed. 2d 340, 101 S. Ct. 2587 (1981). The majority points to a footnote in Summers, at 695 n.4, which it says "suggests that while occupants of private residences may be 'seized' while a proper search of the premises is conducted, any search of those occupants or others on the premises must meet the standards of Ybarra.” Majority, at 300. From this the majority goes on to state:
Finally, despite the discovery of controlled substances in the bedroom of Broadnax's home, that evidence did not establish probable cause to arrest petitioner. Under the reasoning of Summers, the discovery of evidence in the bedroom would create probable cause to arrest Broadnax himself, because his constructive control over the premises is sufficient to connect him to illegal activities occurring therein. As to other individuals on the premises, however, there must be shown additional factors connecting them to the illegal activity to establish *308probable cause.
Majority, at 302.
Neither Summers nor the reasoning in Summers leads to this conclusion nor is this the rule in Summers. Furthermore, the majority in suggesting illegal activities were occurring in Ybarra errs in the facts. No illegal activity of any kind is shown by the facts in Ybarra. The only contraband found was that on the person of Ybarra himself. In contrast, both in Summers and in this case contraband was discovered on the premises in plain view. Criminal activity was not merely suspected in this case; with the discovery of the contraband it became a fact. A warrant which states drug trafficking is occurring plus the discovery of contraband surely ought to be sufficient probable cause to justify an arrest.
I believe the arrest of Thompson was constitutionally permissible. Nonetheless, the majority argues the search itself was conducted and the "evidence was found after the search of petitioner had already been completed and thus could not form the basis for the initial intrusion of petitioner's right of privacy." Majority, at 300. This being the case, the "discovery of controlled substances in the bedroom of the residence . . . cannot serve to establish probable cause to arrest . . . petitioner." Majority, at 300. The approach of the majority ignores the widely accepted inevitable discovery exception. Given the time which elapsed between the patdown of defendant and discovery of heroin by Detective Buckland and when Detective Roesler having just discovered contraband in the bedroom directed that everyone should be placed under arrest—"5 or 10 seconds" in the uncontradicted testimony—I believe this is a case where the inevitable discovery exception should be applied.
The inevitable discovery rule provides that evidence tainted by illegality will not be suppressed when
the prosecution [can] show that the evidence in question "would have" been discovered, absent the illegality, by proper and predictable investigatory procedures. This broad statement of the rule may be further divided into a *309two-part test. Before a court will invoke the rule the prosecution must establish, first, that certain proper and predictable investigatory procedures would have been utilized in the case at bar, and second, that those procedures would have inevitably resulted in the discovery of the evidence in question.
LaCount & Gírese, 40 Alb. L. Rev. at 491. Some courts add a third requirement that "use of the doctrine should be permitted only when the police have not acted in bad faith to accelerate the discovery of the evidence in question." State v. Williams, 285 N.W.2d 248, 258 (Iowa 1979). While I agree with the need for this additional requirement, I believe there must be an affirmative showing the police did not act unreasonably rather than that they did not act in "bad faith". See Terry v. Ohio, 392 U.S. 1, 21-22, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
The court should adopt the inevitable discovery rule by which tainted evidence can be admitted if the following criteria are met:
(1) The police did not act unreasonably or to accelerate the discovery of the evidence in question; (2) proper and predictable investigatory procedures would have been utilized; and (3) those procedures would have inevitably resulted in the discovery of the evidence in question. For all three criteria, the burden of proof is on the State.
All of the requirements of the rule have been met. Given the circumstances of the case—the search of a residence where heroin had allegedly been sold within the past 24 hours—and the situation in which Detective Buckland found defendant, and given Buckland's experience as a narcotics officer, it was not unreasonable for him to presume defendant was under arrest and, being under arrest, that a full search of his person was proper. See United States v. Robinson, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973); Gustafson v. Florida, 414 U.S. 260, 38 L. Ed. 2d 456, 94 S. Ct. 488 (1973). No unreasonable action—indeed, no action at all—was taken by the police to accelerate the search.
*310As to the second part of the test, the police were in the house under a valid warrant to search for illegal drugs. It is proper and predictable under these circumstances that the drugs in the bedroom would be found, that defendant would be arrested and searched, and the heroin discovered. The entire procedure was proper and predictable.
The third test is easily met. The reasonable procedures which would have resulted because of the discovery of the controlled substances in the bedroom also would have inevitably led to discovery of the heroin, had a momentary delay—5 to 10 seconds—occurred in the search of defendant by Buckland. By this time the contraband would have been discovered in the bedroom and defendant would have properly been under arrest.
The evidence of the heroin found on the person of defendant should be admitted. I agree that "In carving out the 'inevitable discovery' exception to the taint doctrine, courts must use a surgeon's scalpel and not a meat axe." 3 W. LaFave, Search and Seizure § 11.4, at 624. See State v. Williams, supra. I also agree that if high standards are maintained for the application of the rule it
can be applied by the courts in a way that can protect the law enforcement interests of society while providing substantial deterrence of official misconduct and thus protecting the individual rights of criminal suspects.
Note, 74 Colum. L. Rev. at 103. In my opinion these desirable ends are met in this case.
I dissent.
Brachtenbach, C.J., and Dimmick, J., concur with DolLIVER, J.