I dissent.
This is an appeal from an order suppressing evidence obtained in a warrantless search. The only real question before us is whether Trooper Alltop’s search of the passenger compartment of Press’ automobile was constitutionally reasonable, or, in other words, whether that search was lawful or unlawful.
There is no real question whether Press was under lawful custodial arrest for DUI. He clearly was. Furthermore, the lawfulness of the automobile compartment search is determinative of the question whether the car trunk search was lawful.
I find certain of the majority’s fact statements somewhat inaccurate, but because of lack of real materiality to dispositive questions, this disagreement is not worthy of particularized discussion. Most importantly, I disagree with the majority’s insufficiently considered application in this case of the following language from New York v. Belton, 453 U.S. 454, 460, 69 L.Ed.2d 768, 101 S.Ct. 2860 (1981):
“[W]hen a policeman has made a lawful custodial arrest of the occupant of an *599automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
“[T]he police may also examine the contents of any containers found within the passenger compartment . . . .”
The landmark case for present purposes is Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034, reh. denied 396 U.S. 869 (1969), an incident to arrest area search case. There the facts were that police officers executed an arrest warrant by arresting the defendant in his home for burglary of a coin shop. After arresting the defendant, the officers conducted a warrant-less search of his entire three-bedroom house, including the attic, the garage, a small workshop, and various drawers. The question was the admissibility into evidence of coins found in that search and the legality of the search was the determinative issue. Chimel held:
“When an arrest is made, it is [constitutionally] 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. In addition, it is [constitutionally] reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
“. . . In [Preston v. United States, 376 U.S. 364, 11 L.Ed.2d 777, 84 S.Ct. 881 (1964)], three men had been arrested in a parked car, which had later been towed to a garage and searched by police. We held the search to have been unlawful under the Fourth Amendment, despite the contention that it had been incidental to a valid arrest. Our reasoning was straightforward:
“ ‘The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.’ . . .
“. . . No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. The only *600reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.
“. . . The search here went far beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, ‘unreasonable’ under the Fourth and Fourteenth Amendments, and the petitioner’s conviction cannot stand.” 395 U.S. at 762-68.
Following Chimel came United States v. Robinson, 414 U.S. 218, 38 L.Ed.2d 427, 94 S.Ct. 467 (1973), and United States v. Edwards, 415 U.S. 800, 39 L.Ed.2d 771, 94 S.Ct. 1234 (1974). Robinson, an incident to arrest search of the person case, has this to say:
“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. . . . [I]n the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 U.S. at 235.
In United States v. Edwards, 415 U.S. 800, the facts were that some ten hours after his incarceration following arrest at a distant location, a jailed defendant’s clothing, which he had been wearing at the time of and since his arrest, was taken from him and subjected to a laboratory examination. Admissibility of the clothing and results of the examination were challenged. The clothing was seized with the defendant when he was arrested and both it and he were in police custody continuously from and after the time of his arrest. Under the particular facts of Edwards, there was probable cause to seize and examine Edwards’ clothing. However, if the taking of Edwards’ clothing and its examination is viewed as an incident to arrest search, it was a delayed search of the person. With respect to incident to arrest searches, Edwards says:
“The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrantless searches incident to custodial arrests . . . and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained.” 415 U.S. at 802-03.
*601Presently important is Chimel’s identification of the spatial scope of a lawful incident to arrest search. This identification is twice stated in a single paragraph:
“the person arrested . . . [and] the area into which [the] arrestee might reach in order to grab a weapon or evidentiary items . . .
and
“the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 763.
Keeping the foregoing as case law background for Belton’s appearance on the scene, let us see what is found in that case.
Belton, 453 U.S. 454, is an incident to arrest area search case. In it there was no question that the defendant was the subject of a lawful custodial arrest for possession of marijuana. 453 U.S. at 462. The physical evidence, the admissibility of which was challenged, was discovered in a warrantless search of an unlocked, closed container found in the passenger compartment of an unoccupied automobile. More particularly, the physical evidence sought to be suppressed was cocaine seized from within a zippered pocket of a leather jacket belonging to Belton found on the back seat of an automobile he and three others had occupied and from which they had removed themselves at the arresting officer’s direction. That particular search and seizure is the factual context within which Belton was decided and with respect to which that decision must be read. In the case before us, we also have a closed container search. The bottom line of Belton is its decision that Belton’s jacket was within the area that was “within the arrestee’s immediate control” within the meaning of the Chimel case and, therefore, the search of the jacket was an incident to arrest search that did not violate the Fourth Amendment proscription of unreasonable searches and seizures. 453 U.S. at 462-63; U.S. Const., Fourth Amend.
The opinions in Belton report the views of a divided Court. I look to Justice Stewart’s opinion of the Court for exposition of the facts and holdings in the case.
Belton begins by expressing the presented issue to be:
“When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?” 453 U.S. at 455.
*602Then this is said:
“[The policeman] . . . directed the men to get out of the car, and placed them under arrest for the unlawful possession of marihuana. He patted down each of the men and ‘split them up into four separate areas of the Thruway at this time so they would not be in physical touching area of each other.’ . . . After giving the arrestees the [Miranda] warnings . . . the . . . policeman searched each one of them. He then searched the passenger compartment of the car. . . .
“. . . The Appellate Division of the New York Supreme Court upheld the constitutionality of the search and seizure, reasoning that ‘[o]nce defendant was validly arrested for possession of marihuana, the officer was justified in searching the immediate area for other contraband.’ . . .
“The New York Court of Appeals reversed, holding that ‘[a] warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.’ . . . Two judges dissented. They pointed out that the ‘search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters.’ . . . We granted certiorari to consider the constitutionally permissible scope of a search in circumstances such as these. . . .” 453 U.S. at 456-57.
Sharpening the issue, Belton says:
“[N]o straightforward rule has emerged from the litigated cases respecting the question involved here — the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial search of its occupants. The difficulty ... is confirmed by a look at even a small sample drawn from the narrow class of cases in which courts have decided whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police may search inside the automobile after the arrestees are no longer in it. On the one hand . . . cases . . . have upheld such warrantless searches as incident to lawful arrests. . . . [I]n [other] cases . . . such searches, in comparable factual circumstances, have been held constitutionally invalid.
“. . . While the Chimel case established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of 'the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.” (Emphasis added.) 453 U.S. at 459-60.
Then Belton gives its answer:
“[W]e hold that when a policeman has made a lawful custodial arrest of the *603occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
“[T]he police may also examine the contents of any containers found within the passenger compartment . . . whether . . . open or closed . . . .” (453 U.S. at 460-461.),
with the explicit admonition that:
“Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 454 U.S. at 460, n. 3.
Belton must be read to say that the Supreme Court took it as a fact of that case that when the search was initiated and made, Belton and his three companions were standing by the side of their automobile, beyond arm’s length from one another.
In substance, Belton is a specialized identification of the Chimel delineation of the spatial scope of a lawful incident to arrest area search. Belton’s identification of Chimel’s “reach and grab” area or “area within the arrestee’s immediate control” delineation clearly is applicable only to the narrow class of cases Belton represents. Cases in that class are those where the arrestee is an automobile occupant who is no longer in the automobile and the interior of that automobile is arguably within the area of the arrestee’s immediate control, that is, within the area from within which he might gain possession of a weapon or evidentiary items.
What are the pertinent facts in the case before us? Press was alone when stopped on a city street in Hays, Kansas, the county seat of Ellis County, at about 11:00 p.m. on Tuesday, March 8, 1983. He was cooperative when stopped and in dealing with Alltop, the arresting officer. He was driving his own automobile. There were four persons present at the scene when the search was initiated and conducted — three officers and Press. Press was oút of and away from his automobile. He was in Alltop’s patrol car, handcuffed and secured by a lap belt to its front seat. The patrol car was parked six or seven feet behind defendant’s automobile.
We are not dealing here with a probable cause search nor with an incident to arrest search of the person. This is an incident to arrest area search case.
From the case law reviewed above, we learn that a contemporaneous incident to arrest area search is justified by concerns for *604the safety of the arresting officer and for the arrestee’s concealment or destruction of evidentiary items. On its facts, in the present case neither of the two justifications for an incident to arrest area search was existent. There was no danger to Alltop’s person or of escape, nor was there danger of defendant’s concealment or destruction of evidentiary items. Defendant was not standing by the side of his automobile. He was physically restrained and immobilized in a patrol car at a distance from both his automobile and Alltop. One of the other officers was “keeping an eye on him.” No part of the area searched, the interior of defendant’s automobile, was an area into which he could arguably “reach and grab” or an area from within which he could arguably gain possession of a weapon or evidentiary items. The search was beyond the area from within which the defendant might obtain weapons or evidentiary items. There was no justification to excuse the search from the constitutional requirement of a warrant. The search was beyond the permitted scope of an incident to arrest area search. The search was constitutionally unreasonable and invalid. The trial judge’s suppression order should be sustained.
It is apparent that my conclusion that the trial judge correctly ordered suppression has been reached upon my giving consideration only to United States Supreme Court decisions. Does Kansas case law require a different conclusion? I believe not.
It seems we have three relevant appellate decisions that have come down since Belton. In chronological order they are State v. Croft, 6 Kan. App. 2d 821, 635 P.2d 972 (1981); State v. White, 230 Kan. 679, 640 P.2d 1231 (1982); State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983). The particular Belton language upon which these cases say they rely has been twice stated above and, again, is this:
“[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460.
In Croft, 6 Kan. App. 2d 821, the critical question was whether the search of the defendant’s automobile improperly exceeded the scope of a permissible incident to arrest area search. Defendant conceded he was the subject of lawful custodial arrest. 6 Kan. App. 2d at 823. Defendant’s brief on appeal discloses his contention was that the interior of his automobile *605was not subject to search because he and his passenger were not in it. The Croft opinion reveals that after the automobile was stopped, defendant and his passenger immediately got out and the officers ordered them to stay near the car. 6 Kan. App. 2d at 822. Defendant and his passenger were not at a distance from their automobile; they were standing by it. They were not physically restrained and immobilized. The interior of the automobile was arguably within the area from within which they or either of them might gain possession of a weapon or evidentiary items. Belton was properly applied albeit without detailed discussion.
In White, 230 Kan. 679, the Belton sentence was quoted. With all due respect, in my view it was mistakenly held applicable and dispositive. In White there was plain view, not a constitutionally questionable search. If the plain view doctrine is not applied, the White “search” was a permissible probable cause search.
The White opinion states only that “[a] high-speed chase ensued with the defendant finally being arrested after his vehicle was rammed by a police car. Following the removal of defendant from the automobile, an officer reached into the vehicle and seized a jacket and cap lying on the front seat.” The briefs on appeal disclose that when the search was made, the defendant was not at the scene; he had been placed in a police car which had departed en route to the scene of the robbery. Our Supreme Court’s failure to speak of and consider this in the context of Chimel’s principles is beyond criticism. In his brief, citing but three cases, defendant said he conceded his position was contrary to Kansas case authority, e.g., State v. Barry, 216 Kan. 609, 533 P.2d 1308 (1974), and merely asked that that authority be reversed; no mention was made of Belton, Chimel, or any other automobile search case law.
Deskins is factually closer to the case before us. There,
“[T]hirty-five to forty police officers . . . set up a roadblock .... Deskins . . . was stopped in the check lane. . . .
“. . . The officer asked Deskins to step out of the car to take a sobriety and coordination test. His performance was less than satisfactory to the officer and ... he arrested [Deskins] and read him the Miranda rights. The trooper moved [Deskins] to a squad car .... While [Deskins] remained in the police car, one of the officers searched [Deskins’] automobile and found in the glove-box a plastic bag containing marijuana.” 234 Kan. at 531.
Deskins came before the Supreme Court on an interlocutory *606appeal by the State. According to the Deskins opinion, the Supreme Court viewed the case as one in which “the narrow question before [it was] whether the use of a DUI roadblock under the factual situation existing . . . [was] an unconstitutional infringement upon a person’s right to be free from unreasonable searches and seizures . . . .” Deskins, 234 Kan. at 530-31.1 cannot agree that, as my colleagues say, Deskins “examined the scope of a search incident to arrest.” Nowhere in Deskins do I find exposition of such an examination. Regarding incident to arrest search and citing White as authority, Deskins simply and only says, “The arrest of [Deskins] being lawful, the search of the passenger compartment of his automobile was also lawful.” 234 Kan. at 543. The Deskins opinion displays examination of a roadblock stopping. In my view it is incorrect to find and say that “Deskins clearly controls the present case.”
Our Supreme Court should not be faulted for its disposition in Deskins of the incident to arrest search question without examination and by the single sentence utilized. No brief on appeal was filed on behalf of Deskins and therefore it cannot be said that before the Supreme Court he disputed the State’s position that subject to the lawfulness of his arrest, the automobile compartment search was a lawful incident to arrest search.
In summary, I find the thrice-stated Belton sentence is an insufficient answer in this case. Belton “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to . . . arrests.” 453 U.S. at 460, n. 3. In applying these principles, I believe there was no justifiable incident to arrest search of Press’ automobile.
For such worth as they may have, if any, I add these comments. K.S.A. 22-2501 is merely a statement of a proposition of general law and refers only to warrantless incident to arrest search. State v. Tygart, 215 Kan. 409, 524 P.2d 753 (1974); Judicial Council Note to K.S.A. 22-2501. Although it predates Belton, State v. Tygart merits consideration with respect to the subject of warrantless probable cause and incident to arrest automobile searches. In State v. Berry, 216 Kan. at 616, three cases, State v. Tygart, 215 Kan. 409; State v. Atkinson, 215 Kan. 139, 523 P.2d 737 (1974); and State v. Moretz, 214 Kan. 370, 520 P.2d 1260 (1974), appear to be cited as automobile incident to arrest search authority. There should be use of those three cases as such *607authority only after careful review of them with respect to the possibility that they are automobile probable cause search cases.
To repeat, I would sustain the suppression order. This case should be reviewed by our Supreme Court for the guidance of Kansas law enforcement officers, the trial courts and this court. See New York v. Belton, 453 U.S. at 470, Justice Brennan dissenting.