The opinion
KELLY, Associate Judge,
concurring in the result:
While I concur in the result reached here, I see no basis for the assertion that Smith v. Maryland, - U.S. -, 99 S.Ct. 2577 , 61 L.Ed.2d 220 (1979) and Rakas v. Illinois, 439 U.S. 128 , 99 S.Ct. 421 , 58 L.Ed.2d 387 (1978), have effectively overruled our holding in United States v. Boswell, D.C.App., 347 A.2d 270 (1975). 1 That claim is both irrelevant to the present decision and erroneous to its reliance on a self-perceived conflict between Rakas and Boswell .
The majority discusses two of Boswell’s holdings. The first is that “[tjhere is no doubt that a citizen carrying a covered object on the street has a reasonable expectation of privacy . . . .” Id. at 274 . Rakas’ discussion of the propriety of a search of various places in no way undercuts that personal right. The majority agrees and *1248 recognizes this in its distinction of Campbell v. United States, D.C.App., 273 A.2d 252 (1971).
The majority then criticizes Boswell’s ruling that a reasonable expectation of privacy will be relinquished “only if from all the circumstances, an intent to abandon is reasonably inferable.” United States v. Boswell, supra at 274. It characterizes this as a holding “that a person’s Fourth Amendment rights in stolen property hinges on the thief’s intent, when the thief has separated the object from his person,” (emphasis added) and contrasts that with Rakas’ holding that a privacy interest must be legitimate and more than subjective.
The second Boswell rule is actually a way of determining whether anyone (thief or not) has separated an object from his person. As such, it reiterates the traditional test for judging abandonment by an observer in the police officer’s position. Peyton v. United States, D.C.App., 275 A.2d 229 (1971). And, like Rakas , it assumes that, after abandonment, there is no personal interest in avoiding search or seizure of an object.
The real question posed by Rakas is whether a person has a legitimate expectation of privacy in each given set of circumstances. Rakas held that mere occupancy of an automobile did not carry that legitimate expectation. In so doing, it relied on the special character of vehicles, Rakas v. Illinois, supra, 99 S.Ct. at 433, 436 (concurring opinion of Powell, J., joined by Burger, C. J.), on petitioners’ “wrongful presence,” id. at 430 n. 12, and on petitioners’ failure to “claim that they had any legitimate expectation of privacy in the areas of the car which were searched.” Id. at 434 n. 17. In rejecting the theory that mere presence in a searched automobile granted standing to raise Fourth Amendment claims the Court never implied that a person walking down the street was not secure against unreasonable searches of his person or immediate property. In fact, two concurring justices whose votes were essential for the majority opinion specifically stated that, “[t]he rationale of the automobile distinction does not apply, of course, to objects on the person of an occupant.” Id. at 436 n. 2 (concurring opinion).
Since I believe that the “scope of privacy that a free people legitimately may expect,” id. at 434 (concurring opinion), includes the right to walk down the street with covered packages in one’s personal possession, and since I believe that Rakas does not overturn, or even speak to, the traditional test for abandonment of personal possessions, I am compelled to disagree with the majority’s discovery of an inconsistency between Rakas and Boswell . 2
My concurrence in this case is based on the record showing that the local police were aware that property had been stolen and secreted in the room, that this was a common modus operandi for dishonest motel employees, that appellant had deliberately taken the unusual and difficult action of closing himself and his cart in the hotel room for a few minutes and of furtively checking the hall before leaving the room and hastily wheeling the cart away. These events, all (unlike his flight at the sight of the police officers) occurring before the officers felt through the plastic bag, meet the traditional test for the probable cause exception justifying warrantless arrests and searches incident to arrest:
“[T]he facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. [Brinegar v. United States, 338 U.S. 160, 175-76 , 69 S.Ct. 1302, 1311 , 93 L.Ed.2d 1879 (1949), quoting Carroll v. United States, 267 U.S. 132, 162 , 45 S.Ct. 280 , 69 L.Ed.2d 543 (1925), quoted in Dunaway v. New York, - U.S. - at -- n. 9, 99 S.Ct. 2248 at 2254 n. 9, 60 L.Ed.2d 824 (1979).]
Since traditional probable cause analysis resolves this case, the majority’s reliance on, and extension of, Rakas v. Illinois, su *1249 pra, seems unwarranted and unnecessary, as well as incorrect. Accordingly, I concur in the result, but dissent from the underlying rationale.
. Majority op. at 1247 n. 1.
. The same may be said of Smith v. Maryland, supra.