The majority today proscribes searches for which there is
probable cause and which may prove fruitless unless carried out
immediately. This rule will have no added effect whatsoever in
protecting the rights of the criminal accused at trial against
introduction of evidence seized without probable cause. Such
evidence could not be introduced under the old rule. Nor does the
majority [*782] today give any added protection to the right of
privacy of those whose houses there is probable cause to search.
A warrant would still be sworn out for those houses, and the
privacy of their owners invaded. The only possible justification
for the majority's rule is that in some instances arresting
officers may search when they have no probable cause to do so and
that such unlawful searches might be prevented if the officers
first sought a warrant from a magistrate. Against the possible
protection of privacy in that class of cases, in which the privacy
of the house has already been invaded by entry to make the arrest -- an entry for which the majority does not assert that any warrantis necessary -- must be weighed the risk of destruction of evidence
for which there is probable cause to [***53] search, as a
result of delays in obtaining a search warrant. Without more basis
for radical change than the Court's opinion reveals, I would not
upset the balance of these interests which has been struck by the
former decisions of this Court.
In considering searches incident to arrest, it must be
remembered that there will be immediate opportunity to challenge
the probable cause for the search in an adversary proceeding. The
suspect has been apprised of the search by his very presence at the
scene, and having been arrested, he will soon be brought
PAGE
79 395 U.S. 752, *782; 89 S. Ct. 2034, **2050;
LEXSEE 1969 U.S. LEXIS 1166, ***53; 23
L. Ed. 2d 685
into contact with people who can explain his rights. As MR.
JUSTICE BRENNAN noted in a dissenting opinion, joined by THE CHIEF
JUSTICE and JUSTICES BLACK and DOUGLAS, in Abel v. United States,
362 U.S. 217, 249-250 (1960), a search contemporaneous with a
warrantless arrest is specially safeguarded since "such an arrest
may constitutionally be made only upon probable cause, the
existence of which is subject to judicial examination, see Henry v.
United States, 361 U.S. 98, 100; and such an arrest demands the
prompt bringing of the person arrested before a judicial officer,
where the existence [***54] of [*783] probable cause is to be
inquired into. Fed. Rules Crim. Proc. 5 (a) and (c). . . .
Mallory v. United States, 354 U.S. 449; McNabb v. United States,
318 U.S. 332." And since that time the Court has imposed on state
and federal officers alike the duty to warn suspects taken into
custody, before questioning them, of their right to a lawyer.
Miranda v. Arizona, 384 U.S. 436 [**2051] (1966); Orozco v.
Texas, 394 U.S. 324 (1969).
An arrested man, by definition conscious of the police interest
in him, and provided almost immediately with a lawyer and a judge,
is in an excellent position to dispute the reasonableness of his
arrest and contemporaneous search in a full adversary proceeding.
I would uphold the constitutionality of this search contemporaneous
with an arrest since there were probable cause both for the search
and for the arrest, exigent circumstances involving the removal or
destruction of evidence, and satisfactory opportunity to dispute
the issues of probable cause shortly thereafter. In this case, the