(dissenting).
The ground of my dissent may be shortly stated. It is that police officers cannot be held unreasonable in declining to view as a mere bystander one who accompanies a criminal to a crime rendezvous.1 Surely *821rarely, if at all, will innocence be accorded such opportunity; the instigators of the meeting may seek helpers, but hardly onlookers, i.e., potential talebearers. This reaction of common sense is here supported by the other circumstances, notably the absence of any natural outcry, protest, or denunciation of his associates by DiRe on his apprehension. Less significant, hut quite consistent, is the fact that DiRe was clad in ordinary work clothes. That a felony "was involved is conceded. In truth there was not only the felony of conspiracy, Blumenthal v. United States, 9 Cir., 158 F.2d 883, but also the substantive felony of possessing and passing the counterfeit coupons. United States v. Serpico, 2 Cir., 148 F.2d 95.
The issue raised concerns only the lawfulness of the arrest, for, that being established, the search follows as an incident thereto. See authorities cited by Frankfurter, J., in Davis v. United States, 66 S.Ct. 1256, 1269. Now the general and traditional rule of arrest without a warrant by a peace officer is aptly stated in the N.Y. Code of Criminal Procedure, § 177, as applicable in three situations: “1. For a crime, committed or attempted in his presence; 2. When the person arrested has committed a felony, although not in his presence; 3. When a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it.” Since the Serpico case shows the later finding of the counterfeit coupons upon DiRe to be a felony, it might well be contended that the second subdivision is applicable. See Wilgus, Arrest without a Warrant, 22 Mich.L.Rev. 541, 685; Holley v. Mix, 3 Wend., N.Y., 350, 20 Am.Dec. 702; 18 U.S.C.A. § 53a, last clause.
But accepting the third subdivision of the statute as stating the more accepted federal principle, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; United States v. Lindenfeld, 2 Cir., 142 F.2d 829, 831, certiorari denied 323 U.S. 761, 65 S.Ct. 89, 89 L.Ed. 609; 5 U.S.C.A. § 300a, there would seem to be “reasonable cause” for the officers to believe that DiRe had participated in the crime admittedly being committed by Buttitta and Reed. (Actually, as later events showed, he was quite clearly a source of supply, a reserve bank, so to speak, for Buttitta in the latter’s sales.) The cases have always held that it is not certainty, but only a reasonable deduction from the circumstances and positions of the parties, which justifies the arrest. See cases collected in the commentaries to the A.L.I. Code of Criminal Procedure, 1931, § 21, pp. 233, 234; Miller, Arrest without a Warrant by a Peace Officer in New York, 21 N.Y.U.L.Q.Rev. 61. How far this decision departs from traditional concepts is shown, for example, by such a leading case as Burns v. Erben, 40 N.Y. 463, 470, where the arrest of a visitor to a house where silver had been stolen from the basement was justified because she was the only nonmember of the family to be in the house at the time. And Woodruff, J., after analyzing the early precedents to justify the result, says that while innocent parties “may sometimes be subjected to incon venience and mortification,” yet “any more lax rules would be greatly dangerous to the peace of the community and make the escape of criminals frequent and easy,” aná quotes Lord Mansfield that a different rule would be “a terrible thing.” See also Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 233; Beckwith v. Philby, 6 Barn. & C. 635, 108 Eng.Rep. 585; Samuel v. Payne, 1 Doug. 359, 99 Eng.Rep. 230; United States v. Strickland, D.C.W.D.S.C., 62 F.Supp. 468 (involving gasoline ration coupons in an automobile) ; and our own weaker case of United States v. Heitner, 2 Cir., 149 F.2d 105, 106, certiorari denied Cryne v. United States, 326 U.S. 727, 66 S.Ct. 33, where we said that “the ‘reasonable cause’ necessary to support an arrest cannot demand the same strictness of proof as the accused’s guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.”
Of course, the test here is the normal and appropriate reactions of police officers, not the more sophisticated after-rationalizations of a judge in his chambers. True, a judge, particularly an intermediate judge, cannot be insensitive to a present strong trend toward special care and considemtion in criminal prosecutions, perhaps even more so where the guilt of the accused is clear. This is surely understandable in the case of *822ma’ny important crimes as a reasonable, even if quixotic, demonstration to a world calloused to brutality of the beneficent contrast afforded by the American spirit of fair play. But it has less desirable consequences in the enforcement of regulatory legislation, where our undisciplined individualism makes even so desirable a war measure as the conservation of gasoline resented and thwarted all too often. Here so gigantic was the task of enforcement, so few the number of federal enforcing authorities, that a breakdown of the law must inevitably, have occurred unless the co-operation of local police officers was assured. Any one who has worked at law enforcement — particularly in smaller communities, where cause and effect are more quickly and surely traced- — knows how a lack of support from the agencies higher up is accepted as a legitimate excuse for weariness or laxity of the officers on the street. That does not excuse illegality. It does suggest that a decision which must operate as 'a limiting direction to the police should carry conviction of its own accommodation to the realities of everyday life and thé practical thinking of ordinary persons, lest it discourage honest effort at necessary policing. I venture to believe that, given a few restrictive and ununderstood decisions of this nature, the local police would be led to leave the federal men to their own more polite means of and attempts at law enforcement.
I may add that I am troubled, too, at the disposition made of the procedural point presented by the absence of timely motion for the suppression of the exhibits here. Perhaps it should always be overlooked, but certainly much has been made of it in our own and other cases. Thus, see United States v. Salli, 2 Cir., 115 F.2d 292, followed in Rose v. United States, 9 Cir., 149 F.2d 755; 8 Wigmore on Evidence, 3d ed. 1940, § 2184, p. 31. If ever applicable, it would seem so here, where the defense was known and available to defendant from the beginning and its use might at once have stopped all proceedings, including, of course, the much later jury trial. I had supposed it well settled that when a trial judge made a decision without stating his rationalizations, that decision was to be affirmed on any legal ground which existed. Here, after a brief colloquy from counsel, the judge merely said: “I will receive them.” Had Rule 41(e), Fed.Rules Cr. Proc., been then in effect, I think we must surely have affirmed, for that makes the motion before trial the normal thing, unless the judge rules otherwise.
The opinion is in error, and misplaces the emphasis, in concluding that the of-fleers “followed a ear in which were Buttitta, Reed and DiRe, until it was parked” at a certain place. Actually Reed had informed them of “his appointment to meet Buttitta at the Deco stand,” and the incident happened at the appointed time and place. The testimony of the officers shows that, while they had recognized the car earlier at a street stop light, they did not see the actual occupants until they again came upon it while it was already parked at the curb at the Deco stand.