dissenting.
I am unable to agree with the majority. The question of probable cause to arrest and search is one question. The question of what may be lawfully seized in a search as incidental to a lawful arrest is another.
*295It is admitted that a lawful arrest was made. There is no contention that the search in scope was unreasonable. The sole issue is whether or not it was lawful to seize a bottle which was later found to contain contraband.
No contention is made that the defendant was arrested for the illegal possession of narcotics at the time of his arrest for drunkenness, so no question of probable cause to arrest for narcotics in possession is in issue. Therefore, the sole question in issue is whether an officer in making an arrest may take into his possession articles found upon the person arrested and which have no connection with the crime for which the arrest is being made, but which may tend to establish the commission of another crime.
In Weeks v. United States, 232 US 383, 392, 34 S Ct 341, 344, 58 L ed 652, 655, the Supreme Court held that the right had always been recognized “to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime.” Subsequently that court reaffirmed the principle that such a search and seizure is not unreasonable. Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L ed 543; United States v. Rabinowitz, 339 US 56, 70 S Ct 430, 94 L ed 653. And not being an unreasonable search and seizure, which alone is protected by the Fourth Amendment to the Constitution of the United States, the taking into custody of the personal articles in the immediate control of the person arrested is not unlawful. People v. Watkins, 19 Ill2d 11, 166 NE2d 433, 438.
“* * * When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized, * * *.” Carroll v. United States, 267 *296US 132, 158, supra. See also, Murby v. United States, 1st cir, 293 F 849, 852; United States v. Lassoff, 147 Fed Supp 944.
The above reasoning forms the basis of the argument of the Supreme Court found in Abel v. United States, 362 US 217, 238, 80 S Ct 683, 4 L ed 2d 668, 686:
“When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely without reason to say he must return it because it was not one of the things it was his business to look for.”
The primary purpose to be served by the Fourth Amendment to the Constitution of the United States is to protect the privacy of the individual and his home from unreasonable invasion by the sovereign. Once it appears that the privacy of Ms person or his home has been lawfully invaded the procedural rule which acts as a prophylactic to prevent unlawful invasions of privacy by denying the use of the property seized as evidence to secure a conviction has no reasonable application.
If the exclusionary rule was used to suppress evidence of other crimes found on a person lawfully arrested and searched, there being but a single search and seizure that invaded privacy, the sole reason that could be assigned would be that the guilty should not be convicted because the officer making the search found an article that “was not one of the things it was his business to look for.”
The Bill of Bights was not designed to be a trap for the police, but to protect substantial rights of individuals. However, when the protective shelter is lawfully invaded there is no reason to hide the results of the search.
*297The very question asked by the majority is answered in the Abel case, supra, and so far as even the dissenting justices in that case were concerned this question apparently was answered correctly. Their dissents are based upon the validity of the arrest and the extent of the search.
Abel was arrested by officers of the Immigration and Naturalization Service for being an alien subject to deportation. Prior to the arrest, officers of the Federal Bureau of Investigation had learned from a defected Russian spy that Abel had for several years cooperated with the spy in attempting to commit espionage. The Immigration and Naturalization Service decided that it would arrest Abel as preliminary to his deportation. The F.B.I. was notified of this plan and officers of the F.B.I. accompanied officers of the I.N.S. to Abel’s room.
After the I.N.S. officers had placed Abel under arrest, they searched his person and the room. No consent was given by Abel to search. The I.N.S. officers testified that the purpose of the search “was to discover weapons and documentary evidence” of Abel’s “alienage.” The F.B.I. agents observed this search but took no part in it. During the search, one of the I.N.S. officers noticed Abel slipping some papers into the sleeve of his coat and he seized the papers, one of them being “a piece of graph paper containing a coded message.”
The piece of graph paper containing the coded message was introduced in evidence, not for the purpose of establishing his alienage and deporting him, but to establish his conspiracy to commit espionage. This piece of graph paper containing the coded message was one of the subjects of a motion to suppress *298duly made in the Federal District Court and the motion was denied. 155 F Supp 8.
The Abel case quotes from the proceedings had in the Federal District Court which discloses that it was admitted that a proper arrest was made, but the prisoner’s contention “is that although they were permitted to arrest this man in a manner in which they did, they did not have a right to search his premises for material which related to espionage.” 362 US 217, 231. The majority of the Supreme Court in speaking upon this subject stated:
“* * * Once this piece of graph paper came into Sehoenenberger’s hands, it was not necessary for him to return it, as it was an instrumentality for the commission of espionage. This is so even though Schoenenberger was not only not looking for items connected with espionage but could not properly have been searching for the purpose of finding such items. When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for. See Harris, supra (331 US at 154, 155).” Abel v. United States, supra, 362 US 217, 238, 4 L ed 2d 668, 686, 80 S Ct 683.
And as previously stated the justices dissenting do not take issue with this statement or its reasoning.
The Abel case does not disclose whether the officer knew the code message would disclose an act of espionage or not. In all probability he was merely suspicious and took the graph paper with its message to an expert for decoding. In any event, the Abel case clearly stands for the right to seize any suspicious articles found upon the person of one lawfully arrested, and thereafter such articles may be used as evidence *299to convict of a crime different from that for which he was arrested.
Statements to the same effect and result are found in Charles v. United States, 9th cir, 278 F2d 386, 388:
“Searches of both the person arrested and the place where the arrest is made derive their legality in the absence of a search warrant from the existence of a lawful arrest. Without probable cause to arrest, subsequent searches either of person or property violate the Fourth Amendment. That a search is incident to a valid arrest saves it from proscription. The apparent reasoning behind this principle is that once a valid arrest is made, the privacy of the accused has for the most part been lawfully destroyed. Further intrusion connected with and justified by the fact of arrest should not be precluded.”
In the matter before us, the record of the hearing upon defendant’s motion to suppress discloses that the defendant Elkins had upon his person and under his control that which it was unlawful to possess.
This, of course, meets the requirement of State v. Chinn, 231 Or 259, 373 P2d 392, since the narcotics were such as would qualify for the statement cited by the majority, that “the things seized must be things which would have been subject to the law’s demand upon a proper showing before a magistrate.” But the statement should not be enlarged by construing it to mean that the things seized could only have been lawfully seized if the officer making the arrest knew before he made the arrest and search sufficient facts to sign an affidavit before a magistrate disclosing probable cause to issue a search warrant.
It is the lawfulness of the arrest that permits the invasion of privacy, just as does the affidavit of prob*300able cause which permits the lawful issuance of a search warrant.
The entire argument of the majority is addressed to questions which bear upon the lawfulness of an arrest or issuance of a search warrant. This argument has no bearing upon the issue presented since the lawfulness of the arrest and search are admitted.
I would affirm.