The opinion
RIVES, Circuit Judge
(specially concurring) :
A careful examination of the record convinces me that the seizure of the two paper sacks from Brookins preceded his arrest. Nowicki approached Brookins with the intention to arrest him for possessing an unregistered distillery. However, before telling Brookins that he was under arrest, Nowicki asked him his name and he replied Ed Brookins. Nowicki then asked Brookins if he could look in the two paper sacks he was carrying and Brookins gave him the sacks. In one paper sack he found 25 corks and a severed plastic jug spout and in the other he found a lunch. Nowicki then placed Brookins under arrest and signaled to his fellow officers. That much clearly appears at the bottom of page 21 and on pages 35 and 36 of the record.
There is, and can be, no contention that Brookins surrendered the two paper sacks and their contents voluntarily, for Nowicki was in the garb of an officer and was visibly armed. Brookins’ confession came after, and was in all proba *469 bility induced by, the discovery of the contents of the two sacks.
Nowieki acted in an emergency. If he had allowed Brookins to continue on directly to the still, he could reasonably apprehend that the carefully planned surveillance of the still would be frustrated, the operator of the still might be warned and might possibly escape, and evidence might be destroyed. Nowieki was justified in stopping Brookins to avoid interference with the raid and with the arrest of the operator of the still.
Was he justified further in seizing the two paper sacks and their contents? On this point we do not write on a clean slate. The Supreme Court has recently stated in Sibron v. New York, 1968, 392 U.S. 40, 63 , 88 S.Ct. 1889, 1902 , 20 L.Ed.2d 917 , that “It is axiomatic that an incident search may not precede an arrest and serve as part of its justification.” Again in the companion Peters case, the Court repeated “* * * a search incidental to a lawful arrest may not precede the arrest and serve as part of its justification.” 392 U.S. at 67 , 88 S.Ct. at 1905 . In Chimel v. California, 1969, 395 U.S. 752, 762 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 , the Court pointedly drew the comparison between the two “stop-and-frisk” cases, Terry v. Ohio, 1968, 392 U.S. 1, 19, 29 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 , and Sibron v. New York, 1968, 392 U.S. 40 , 88 S.Ct. 1889 , 20 L.Ed.2d 917 , and pointed out that a protective search for weapons might be justified as in Terry , while a search for evidence not limited to the objective of protection would have to be disapproved, as in Sibron .
It therefore appears that the seizure of the two paper sacks cannot be justified as incidental to Brookins’ arrest for possessing an unregistered distillery because the seizure preceded the arrest and served as part of its justification. Sibron and Peters, supra, 392 U.S. 63 , 67, 88 S.Ct. 1889 , 20 L.Ed.2d 917 . The seizure of the sacks cannot be justified as incidental to Nowicki’s stopping Brookins to prevent him from frustrating the raid and interfering with the arrest of the operator of the still (assuming that he was stopped for such purpose), because the seizure was made in order to find evidence and was not limited to the objective of protection.
True, it would appear that Nowieki acted in the emergency which confronted him as a reasonably prudent officer should act, and with a minimum of intrusion upon Brookins’ privacy or invasion of his personal security. If we wrote upon a clean slate, I would say that under all of the circumstances there was no unreasonable seizure violative of the Fourth Amendment. Under the controlling authorities, however, I am forced to the conclusion that the evidence obtained as a result of the seizure was inadmissible, and I reluctantly concur in the judgment of reversal.