¶1Dissenting Opinion
¶2The majority opinion sanctions the initial search of the paper sack seen on the floor of the car with the theory that it was a search incident to a lawful arrest and therefore is not violative of the Fourth Amendment under the United States Supreme Court decisions in U.S. v. Robinson (1973), 94 S. Ct. 467, and Gustafson v. Fla. (1973), 94 S. Ct. 488. I believe this view is a dangerous misinterpretation of Robinsonand Gustafsonand creates a precedent which erroneously and unwisely expands the authority of the police to search motorists on Indiana highways.
¶3When Deputy Sheriff Fields first stopped this automobile he had no knowledge of the recent armed robbery at the Bosley’s home. His only authority to stop the car at that time was for a misdemeanor violation of one of the sections of the Motor Vehicle Code which concerns the operation and maintenance of certain automotive equipment. When he saw part of a tire tool protruding from a paper sack lying on *72the floor of the automobile he ordered the occupants out of the car, opened the sack and discovered a tire tool, pink rubber gloves and a hunting knife. All three of these exhibits, along with numerous others discovered after the shooting incident, were admitted at trial. Clearly the opening of the paper sack on the floor of the car constituted a search within the meaning of the Fourth Amendment. Chambers v. Maroney (1970), 399 U.S. 42, 90 S. Ct. 1974, 26 L. Ed. 2d 419; Carroll v. U.S. (1925), 267 U.S. 132, 45 S. Ct. 280. The majority today finds, however, that although Deputy Fields had no probable cause at the time of the search of the sack, it was nevertheless proper solely on the ground that the defendant and his companion had been “arrested” on the loud muffler charge and that the Robinsonand Gmtafson decisions allow a police officer to “thoroughly search the arrestee” in this situation as a search incident to a lawful arrest. This holding misinterprets those decisions in two significant ways. First, Gmtafson and Robinsonconcern the permissible scope of a search of a person incident to a custodial arrest, but they do not authorize, as the majority holding would seem to imply, a search of those sections of a car which lie beyond the area of control of the arrestee. Secondly, neither decision concerns the type of “arrest” with which we are confronted here.
¶4On those occasions when a police officer in Indiana stops a motorist for a minor traffic violation, as we have here, the officer is not empowered to automatically effect a full custodial arrest and haul the motorist off to the stationhouse. Both IC 1971, 9-4-1-130, being Burns §47-2307 and IC 1971, 9-4-1-131, being Burns § 47-2308, require that the officer may only issue a summons to the offender and then must allow him to proceed on his way. It is only in the case of a serious traffic offense (Burns § 47-2307 [2] to [5]), or in the event a motorist refuses to promise to appear in court at a future date (Burns § 47-2307 [6]) that the police may effect a full arrest and take the motorist to the police station for booking. In a normal traffic misdemeanor situation a police officer may *73only impose what may be termed a limited arrest for the purpose of issuing the summons and then must release the motorist from this limited form of custody.
¶5Both the facts and language of Gustafsonand Robinsonspecifically concern the type of traffic violations which requires or allows an officer to effect a full custodial arrest. It is apparent from the opinions that the sole basis for the full scale search of the motorist was the full custodial type of arrest being effected in both of those situations.
“The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.
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“It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terry type stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification.” (Emphasis added.) U.S. v. Robinson (1973), 94 S. Ct. at 476.
¶6In a footnote in Robinsonthe Court made a sharp distinction between the full custodial arrest with which it was concerned in that case, and what was characterized by the Court as a “routine traffic stop, i.e. where the officer would simply issue a notice of violation and allow the offender to proceed.” Fn. 6 at 477. The majority specifically stated that they were not deciding the constitutionality of searches incident to these routine traffic stops. It is precisely that type of limited arrest resulting from a routine traffic stop which faces us here, and while the Fourth Amendment does not prevent a full search incident to a lawful custodial arrest I do not believe it to condone a full search incident to a routine traffic stop where the police officer is not authorized to take the motorist into custody. It is evident that the Supreme Court justifies the search of the arrestee on the grounds of the full custodial *74nature of the arrest, but where, as here, there is no full custodial arrest the justification and rationale allowing the search is obviously absent.
¶7The majority’s present interpretation of the Gustafsonand Robinsondecisions, as allowing a full scale search of anyone who violates some traffic regulation, invites wholesale and groundless intrusions upon the personal privacy of thousands of Indiana motorists. Thus, under this interpretation the vast number of Indiana citizens who travel by automobile and who may be stopped for having a non-functioning license plate light (IC 1971, 9-8-6-6, being Burns § 47-2204), or for failure to dim their headlights for an on-coming car (IC 1971, 9-8-6-24, being Burns § 47-2220) or for driving on studded snow tires after the first of May (IC 1971, 9-8-6-39, being Burns § 47-2233), or for any of a multitude of minor traffic offenses, are subject, without further authorization or circumstances, to having the contents of their wallets, pockets and pants cuffs examined by the police.
¶8I am not, of course, claiming that an officer can never conduct a search after a routine traffic stop. We have repeatedly recognized the essential concerns of a police officer for his own safety when he encounters any citizen in the performance of his duty, and where there exists special facts or circumstances which gives the officer reasonable grounds to believe that the occupants of a car are armed, he may conduct a protective frisk. Terry v. Ohio (1967), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889; Sayne v. State (1972), 258 Ind. 97, 279 N.E.2d 196; Paxton v. State (1970), 255 Ind. 264, 263 N.E.2d 636. The majority opinion, however, does not attempt to base its holding on the Terryexception, but makes, what is in my opinion, the mistake of authorizing full scale searches based on the sole fact of a minor traffic violation.
¶9Since I believe Deputy Fields was in violation of the strictures of the Fourth Amendment when he examined the paper *75sack on the floor of the car and because I do not think the admission of the pink gloves into evidence was harmless error under the rules of Chapman v. California (1967), 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 and Harrington v. California (1969), 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284,1 find I must dissent.
¶10Note.—Reported at 312 N.E.2d 77.