RICHARDSON, J. I respectfully dissent.
A brief recitation of significant portions of the factual background may be useful for a proper understanding of the search and seizure issue herein presented. At approximately 10:30 p.m. on December 31, 1972, after an altercation with his wife, defendant and his three-year-old son left St. Helena for San Francisco in a pickup truck driven by a Mr. Stark. The purpose of the trip was to return the small child to his mother, the former wife of defendant, who lived in San Francisco at an address unknown to defendant but believed by him to be on California Street in the vicinity of Clay and Fillmore Streets. Defendant carried with him a suitcase and a paper bag containing a six-pack of beer. Enroute to San Francisco, defendant and Stark each consumed two cans of beer. During the latter part of the journey defendant and Stark engaged in a dispute with the result that Stark told defendant to get out of the truck, and defendant and his son thereupon left the vehicle.
Defendant was unfamiliar with his surroundings but believed that he was in San Rafael. In fact he was on U. S. 101 Freeway at the Marin City [252]off-ramp, approximately seven miles from San Rafael. At this time Officer Schultz of the California Highway Patrol and another officer while on a routine patrol observed defendant and the little boy standing at the intersection of the freeway and the off-ramp. Both defendant and the boy appeared to be urinating and as the officers approached, defendant was observed adjusting his clothing. He said something to the effect, “Oh, my God, it looks like we are going to be arrested.” Defendant described to Schultz his predicament and his destination. He was unable to give the officers any identification, but said he lived in Alexandria, Virginia. In describing defendant’s appearance Officer Schultz said, “He was intoxicated to the point he couldn’t take care of himself or his son.” Specifically, defendant’s eyes were extremely bloodshot and his pupils were enlarged. He swayed back and forth, shifting his feet to maintain his balance. He was incoherent. The child appeared to be tired, cold, and was crying. The hour was 12:30 a.m.
At this point the officers made an in-the-field decision which, in my view, was eminently proper. They decided to take defendant and the child to their destination in San Francisco in order to return the child to his mother. One of the officers placed the child in the back seat of the patrol car, comforted him, and was able to stop his crying. Defendant started to follow the child into the back seat of the car, but before doing so, Officer Schultz asked that he submit to a pat-down search. Defendant then raised his hands preparatory to the search. In doing so, defendant’s coat pocket was partially open and Schultz observed therein a plastic bag containing what Schultz believed to be, and in fact was, marijuana. This disclosure occurred just before the pat-down. Defendant was then arrested. A subsequent search of the paper bag lying nearby revealed 454 LSD tablets in addition to 2 unopened cans of beer.
Given the foregoing circumstances, three principles appear applicable. First, since the police had probable cause to arrest the defendant, a pat-down search was justified. In my view, when such probable cause exists but the police decide, for valid reasons to transport the individual away from the scene rather than arrest, they may conduct a pat-down search preparatoiy to such action. Second, the officers in the instant case had a positive duty to assist defendant and his son, and a pat-down search for the officers’ own protection was amply warranted as a reasonable incident to any of the responsible options available to the officers. Third, the exclusionary rule invoked by the majority should not, as a general proposition, be applied to “searches” made in the exercise of police purposes unrelated to the investigation or prosecution of a crime. Contrary to the majority view, each of these principles, far from carving [253]out “totally new” or “unprecedented” exceptions to “universally accepted” principles is well founded in existing case law, as well as in logic and in sound public policy.
1. Probable Cause to A rrest
Under present law, if probable-cause to arrest exists and the individual is formally arrested, he is subject to a pat-down search before being transported to the police station. (Chimel v. California (1969) 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034]; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 201 [101 Cal.Rptr. 837, 496 P.2d 1205]; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812-813 [91 Cal.Rptr. 729, 478 P.2d 449, 45 A.L.R.3d 559].) If probable cause to arrest exists but the individual is not arrested, there is no valid reason why the individual should not be subject nevertheless to a limited search, less intrusive than arrest, as an alternative way of'dealing with the situation. I am unable to see how the alternative—arrest and search, with- its necessary additional restraints on the individual’s freedom, offers any greater constitutional protection than the search alone.
The majority insist that unless an individual is actually arrested, an officer must have reason to believe he is dealing with an armed and dangerous person before conducting a pat-down search. Such a conclusion is In no way compelled by present law. The authority on which the majority rely for this proposition, Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868], applies specifically only to those situations in which the officers lacked probable cause to arrest, rather than to cases where, as here, such probable cause existed but the officers chose not to arrest. The majority extract a portion of a sentence from Terry which, out of context, appears to support their proposition. This sentence in full reads: “Our evaluation of the proper balance that has to be struck in this type of case leads us to conclude that there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” (Id., at p. 27 [20 L.Ed.2d at p. 909].) With all due deference, I suggest that the above quotation means that when the police believe that an individual is armed and dangerous, they may search for weapons even without probable cause to arrest; it does not mean, as the majority assert, that an individual must be armed and dangerous in order to justify a search even where there is probable cause.
[254]To the contrary, Terry assumes that if probable cause to arrest does exist, a search is proper. {Id., at pp. 15-16, 20, 25, 27 [20 L.Ed.2d at pp. 902-903, 905, 908, 909].) Specifically, the Terry court characterizes the question before it as “. . . whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest.” {Id., at p. 15 [20 L.Ed.2d at p. 902], italics added.) Further, Terry continues: “A search for weapons in the absence of probable cause to arrest. . . must, like any other search, be strictly circumscribed by the exigencies which justify its initiation.” {Id, at pp. 25-26 [20 L.Ed.2d at p. 908], italics added.)
Likewise, in People v. Superior Court (Simon), supra, 7 Cal.3d 186, the other case on which the majority rely, the search was found to be defective because there was no probable cause to arrest the defendant for a nontraffic arrest. (Id., at pp. 195-198.) There is no language in Simon that fairly suggests that if probable cause had existed to arrest for a nontraffic offense, the search would nonetheless be improper because no arrest was made.
The majority concede that the circumstances surrounding the pat-down search offered probable cause to arrest, and this is amply supported by the record. The particular statutes under which an arrest might have been effected include the following: Penal Code sections 647, subdivision (f) (drunkenness); 273g (drunkenness in the presence of a child); 272 (contributing to the delinquency of a minor); 374b (depositing waste matter on a public right of way); and additionally, at least two Vehicle Code sections, 21960 (pedestrian on a freeway) and 21957 (hitchhiking). Whenever probable cause to arrest exists, despite a lack of intention to arrest, the delicate balance between individual rights and society’s interest in having the police safely carry out their duties shifts in favor of permitting the limited pat-down search. Thus on this basis alone, I would uphold the search.
2. Police Duty to A ct
It is now established in California that a patdown search is proper when an officer is under a duty to transport an arrestee who is properly in their custody. (People v. Norman (1975) 14 Cal.3d 929, 935-936 [123 Cal.Rptr. 109, 538 P.2d 237]; People v. Longwill (1975) 14 Cal.3d 943, 949-950 [123 Cal.Rptr. 297, 538 P.2d 753]; People v. Brisendine (1975) 13 Cal.3d 528, 536-537 [119 Cal.Rptr. 315, 531 P.2d 1099].)
[255]Under the circumstances of this case, I would conclude that the officers had a duty to transport defendant and his son away from the scene, even if defendant was not placed under arrest. The same policy considerations supporting the rule in the cases cited above, are equally applicable in this situation. As noted in the concurring opinion in Simon: “The critical factor in these or similar situations is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed.” (Simon, supra, at p. 214, Chief Justice Wright concurring; see also People v. Brisendine, supra, at p. 537.) Thus, in my view, the pat-down search was justified incident to the transportation of defendant and his son to a place of safety.
The majority, while expressing sympathy for the predicament of the officers (indeed, offering commendation for their restraint), nonetheless propose a rule that requires the officers to inform defendant that he may either decline the ride or submit to a pat-down. Such a novel requirement under the facts of this case is, I suggest, wholly unrealistic. Assuming he is sober enough to exercise his “options,” suppose defendant declines the ride? What then? Under the majority’s view presumably one of two things occur. Either (a) defendant and his son are left on the freeway, or (b) the.officers arrest defendant before conducting a pat-down search and transporting him. Alternative (a), abandonment of defendant and his child, is, in my view, absolutely unthinkable. The multiple hazards and risks to both defendant and child are so numerous and obvious as to require no mention. It would constitute negligence and inattention to duty to leave an inebriated man, possessing no identification, with a three-year-old child who is tired, cold, and frightened, alongside a freeway in a rural area at 12:30 in the morning in the middle of winter.
The remaining option in the majority’s view, alternative (b), is to arrest defendant. This is an option which the officers, in the exercise of their “in-the-field” discretion, specifically decided for valid reasons was not a desirable one. Their stated reasons were: “.. . it was 12:30 at night. We would have to get a receiving home for the boy and we thought it would be better if we just took him on home, and instead of taking him to jail for just [being] drunk.” The effect of the majority holding is to force an arrest in a situation where the officers desire only to protect themselves by a limited intrusion of defendant’s person while carrying out their general protective duties.
[256]I respectfully suggest that application of a rule of such wooden rigidity contains, to borrow the majority’s phrasing, “potential ramifications” for ill. It also, in my view, ignores and deprives the police of that discretion which public policy requires be vested in them in the discharge of a veiy important area of their responsibility—their caretaker and protective ■function. The nonlaw enforcement duties discharged by Officer Schultz and his companion in the matter before us are commonly accepted and widely recognized. Terry itself contemplates this precise kind of police activity that involves neither the investigation nor enforcement of the criminal laws: “Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime. . . .” (Terry v. Ohio, supra, 392 U.S. 1, 13 [20 L.Ed.2d 889. 901].) “. . . This sort of police conduct may, for example, be designed simply to help an intoxicated person find his way home, with no intention of arresting him unless he becomes obstreperous. . . .” (Id., at p. 13, fn. 9 [20 L.Ed.2d at p. 901].)
The general protective duties of police are a vital part of police activity, and there has been increasing emphasis on the need for expansion of the police role beyond that of mere apprehension and arrest of criminal suspects. The National Advisory Commission on Criminal Justice Standards and Goals, Police (1973) encourages the exercise of this nonarrest function: “Every police agency ... immediately should divert from the criminal and juvenile justice systems any individual who comes to the attention of the police, and for whom the purpose of the criminal or juvenile process would be inappropriate, or in whose case other resources would be more effective.” (Id., at p. 80.) Recognition of the protective role to be played by the police has been extended by the American Bar Association in the ABA Standards Relating to the Administration of Criminal Justice, Compilation (1974), outlining the “Major Current Responsibilities of Police”: “. . . [MJost police agencies are currently given responsibility, by design or default:... (iii) to aid individuals who are in danger of physical harm: . . . (v) to facilitate the movement of people and vehicles; (vi) to assist those who cannot care for themselves; . . . and (xi) to provide other services on an emergency basis.” (Id, at p. 15, see also Com. on Peace Officer Standards and Training, State of Cal., Behavioral Objectives for Post Basic Course (1975) §§ 10.1.2, 10.16 et seq., 63.1 et seq.)
The circumstances of the present case do not suggest to me that a responsible police officer should be required, as the majority insist, either to arrest defendant or to leave him alone. In my view, the responsible [257]options were either to transport defendant and his son to a safe place, or arrest defendant and take the child into custody under Welfare and Institutions Code section 600 or section 625. Under either of these options, transportation of defendant was required and thus a pat-down search would have beén warranted. I think it unwise to limit the discretion vested in officers in the exercise of their essentially noncriminal, protective duties, by requiring that they arrest an individual in order to conduct a pat-down search for their own protection. Requiring an arrest, with all of its subsequent criminal implications, under these circumstances, serves neither public policy nor the private constitutional interests of the defendant himself.
3. Nonapplicability of the Exclusionary Rule
A third reason prompts me to dissent. In my view, neither the stated purposes nor the function of the exclusionary rule are served by its application in a noncriminal setting. As previously noted, in the case before us, the police were engaged in neither the investigation nor prosecution of crime. Indeed, they specifically rejected their law enforcement role. Given ample opportunity and cause to arrest in the exercise of their discretion, they elected to pursue their protective responsibilities to the citizenry by means short of the invocation of the criminal process.
Against this setting, I note that the United States Supreme Court initially justified the exclusionaiy rule as a necessaiy deterrent to improper police conduct. “The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” (Elkins v. United States (1960) 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677, 80 S.Ct. 1437]; see also Mapp v. Ohio (1961) 367 U.S. 643, 656 [6 L.Ed.2d 1081, 1090, 81 S.Ct. 1684, 84 A.L.R.2d 933].) For several years the Supreme Court appeared to depart from this conception of the rule, treating it as a personal right rather than as part of a regulatory scheme designed to insure the collective security of citizens in freedom from unreasonable searches. Thus, the court held that an individual must have “standing” in order to assert a Fourth Amendment defense (Alderman v. United States (1969) 394 U.S. 165, 174 [22 L.Ed.2d 176, 187, 89 S.Ct. 961]; Brown v. United States (1973) 411 U.S. 223, 230 [36 L.Ed.2d 208, 214-215, 93 S.Ct. 1565]), and that the reasonableness of a search is determined on the basis of objective rather than subjective criteria. (Cupp v. Murphy (1973) 412 U.S. 291, 295 [36 L.Ed.2d 900, 905, 93 S.Ct. 2000]; Chimel v. California, supra, 395 U.S. 752 at pp. 762-764 [258][23 L.Ed.2d 685 at pp. 693-695]; see Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, 367-374.)
Recently the Supreme Court has rejected this “personal right” concept and recognized that the only real justification for the exclusionary rule lies in its deterrent value. In reaching its conclusion that evidence seized illegally should not be excluded from a grand jury hearing, the court stated: “The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures .... In sum, the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.” (United States v. Calandra (1974) 414 U.S. 338, 347-348 [38 L.Ed.2d 561, 571, 94 S.Ct. 613], citations and fn. omitted; see also Michigan v. Tucker (1974) 417 U.S. 433, 446-447 [41 L.Ed.2d 182, 194-195, 94 S.Ct. 2357]; Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 415 [29 L.Ed.2d 619, 637-638, 91 S.Ct. 1999] (Chief Justice Burger dissenting).)
Like the United States Supreme Court, we have from the beginning justified the exclusionary rule primarily as a deterrent made necessary by the failure of other means to regulate improper police conduct. Thus, in adopting the federal exclusionary rule (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341]), in People v. Cahan (1955) 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513], we said, “We have been compelled to reach that conclusion because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.” While frequently describing as a further justification for the rule the desire to keep the court from participating in illegal conduct (e.g., People v. Benford (1959) 53 Cal.2d 1, 15 [345 P.2d 928]; Kaplan v. Superior Court (1971) 6 Cal.3d 150, 155-156 [98 Cal.Rptr. 649, 491 P.2d 1]), we have focused primary concern on the deterrent effect of the rule. Thus, recently we stated: “Whether the exclusionary rule should be invoked depends ... on whether to do so would deter the particular governmental employee, and others similarly situated, from engaging in. illegal searches of private citizens.” (Dyas v. Superior Court (1974) 11 Cal.3d 628, 635 [114 Cal.Rptr. 114, 522 P.2d 674]; see also People v. Superior [259]Court (Simon), supra, at p. 198; People v. Moore (1968) 69 Cal.2d 674, 682 [72 Cal.Rptr. 800, 446 P.2d 800].) And in In re Martinez (1970) 1 Cal.3d 641 [83 Cal.Rptr. 382, 463 P.2d 734], we refused to apply the exclusionary rule in a parole revocation case in part because we decided the increased deterrent effect of applying the rule in such cases would be slight. (Id., at pp. 649-650.)
Since the purpose for and justification of the exclusionaiy rule lie in its deterrent capability, it makes no sense to apply it in situations, like the one before us, in which the object of the police activity is not the prosecution of crime. If no criminal prosecution is contemplated or sought at the time of the police activity, the fact that any evidence discovered by the police activity will be excluded in a criminal prosecution will not deter police conduct.
This reasoning is, in my view, the precise import of the United States Supreme Court’s language in Terry v. Ohio, supra, 392 U.S. 1, in the context of searches incident to field interrogations. “The exclusionary rule has its limitations ... as á tool of judicial control. . . . [I]n some contexts the rule is ineffective as a deterrent.. .. Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to a desire to prosecute for crime [including helping an intoxicated person find his way home]. . . . Doubtless some police ‘field interrogation’ conduct violates the Fourth Amendment. But a stern refusal by this Court to condone such activity does not necessarily render it responsive to the exclusionary rule. Regardless of how effective the rule may be where obtaining convictions is an important objective of the police [fn. omitted], it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal.” (Id, at pp. 13-14 [20 L.Ed.2d at pp. 901-902].) It is clear to me, under the rationale of Terry, that no deterrent purpose is served by excluding evidence which is the product, as here, of activities undertaken by the police acting in their protective capacity.
There is language in Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84], to the effect that police officers are not “exempt” from the reasonable search requirement of the Fourth Amendment “.[mjerely because the police are not searching with the express purpose of finding evidence of crime . . . .” (P. 706.) I agree with this statement, and with Mozzetti’s holding that a purported “inventory” search of a closed suitcase in the trunk of a car in police custody [260]constituted an unreasonable invasion of privacy. Nonetheless, not all police conduct which invades privacy necessarily invokes an exclusionary rule, as opposed to some lesser form of sanction. In those situations, as in the present case, where police officers are not seeking to discover incriminating evidence but instead “stumble upon” contraband or other evidence while engaged in noninvestigatory activity, no deterrent purpose would be served by excluding such evidence in a subsequent criminal proceeding. The inflexible and stubborn imposition of the exclusionary rule under such circumstances is simply too costly a price to pay for the limited invasion of a privacy interest.
In Mozzetti, we applied the exclusionary rule to exclude from a criminal prosecution the fruits of an improper automobile search, undertaken for the ostensible purpose of protecting the belongings of their owner. In that case, we focused on whether the intrusion was a search. We did not directly deal with the fundamental question which has been increasingly raised of whether the exclusionary rule should be applied whenever there has been an improper search even when the police are acting in their protective capacity and no deterrent purpose would be served. Interestingly, one of the principal Supreme Court cases relied upon by us in Mozzetti was Terry v. Ohio, supra, a case which, as I have indicated, seems to indicate that the rule should not be applied in such circumstances. The problem of whether the exclusionary rule should be applied in every case in which the search is held to be improper should now be closely scrutinized, as was not done in Mozzetti, in light of the purposes of the rule.
The majority herein suggest that the accommodation which I propose “would permit, even encourage, unregulated exploratory searches by police officers . . .” and would “preserve the constitutional rights of persons suspected of crime, but not of those whose conduct has given rise to no such suspicion.” (Fn. 4.) To the contrary, I propose no such thing, and such conclusionary statements represent a gross misreading of this dissent. Police officers have no authority to conduct general “exploratory searches,” and clearly any contraband or other incriminating evidence discovered as a result thereof would be subject to the exclusionary rule, whether or not the citizen so searched was a suspect. On the other hand, assuming for the sake of argument that the police officers in the present case exceeded their authority, they conducted no “exploratory search” but were acting solely in their “protective” capacity when they discovered the contraband at issue. Accordingly, I discern no sound basis for excluding the admission of such evidence, nor has any been suggested by [261]the majority other than the rote, automatic and mechanical application of the exclusionary rule.
To suggest that judicial lines be drawn properly delineating the reasonable ambit of the exclusionary rule is neither to weaken nor dilute its proper application in an appropriate area. The federal Supreme Court is in the process of defining reasonable limitations on the rule, bearing always in mind the primary deterrent purpose of the rule. (See e.g., Michigan v. Tucker, supra, 417 U.S. 433; United States v. Calandra, supra, 414 U.S. 338.)
In this redefinition process, leading academic authorities have emphasized the importance of a full understanding of the precise basis and reason for the rule and its application to specific areas of activity which reasonably can justify the rule. For example, Professor Amsterdam of the Stanford Law School in his profound analysis, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349, argues forcefully for a shift away from what he describes as an “atomistic” view of the exclusionary rule and a return to a more “regulatory” concept which recognizes that the rule is designed to protect individual rights, rather than constituting an individual right in itself. (Id., at pp. 367-374, 437-439.) “The exclusionary rule is simply a tool to be employed in whatever manner is necessary to achieve the amendment’s regulatory objective by reducing undesirable incentives to unconstitutional searches and seizures.” (Id, at p. 437.)
Similarly, Professor Kaplan, also of the Stanford Law School, in his penetrating review, The Limits of the Exclusionary Rule (1974) 26 Stan.L.Rev. 1027, suggests modifications of the rule, concluding that: “... the exclusionary rule does not have such an honorable or ancient lineage that it should be maintained without reference to the validity of its justifications; ..(Id., atp. 1029, fn. omitted.)
Professor Kaplan argues for a more flexible application of the rule, properly noting the effects of appropriate modifications: “For those who are wedded to the present rule, and even more for those who would expand it, any restriction would be a retreat in the face of the enemy, a cutting back when it is most necessary to hold firm. A cutting back of the exclusionary rule, however, can also be regarded as a pruning, a method of making it more acceptable and hence more lasting; it is indeed a method of giving more, not less, protection to fourth amendment values.” (Id., at p. 1045.)
[262]The exclusionary rule should be subject to reasonable restrictions, one of which, in my view, should limit the rule to its correct regulatory role. It should not apply to cases such as the one at bar in which the purpose of the police activity is neither the prosecution nor prevention of crime. This limitation may, on occasion, raise difficult problems of proof, but this difficulty is a common one in the law (see, e.g., People v. Brisendine, supra, 13 Cal.3d 528 at pp. 534-535) and is not so acute as to require automatic application of an overbroad rule, the effect of which tends to sacrifice other important societal interests.
In conclusion, I suggest that where, as here, circumstances combine and give rise to a probable cause to arrest, but the police in discharge of their obligation to protect the citizeniy and for good reasons elect not to arrest, reasonable precautionary measures carefully tailored to the situation, are proper. These precautionary measures, in my opinion, may include a pat-down search, described by us in People v. Brisendine, supra, 13 Cal.3d 528, 537, as a “minimal intrusion” on a person’s privacy. The factual situation before us was unusual. The police did not manufacture a pretext. Their objectives are described by the majority as “laudatory.” Their methods prompted the trial judge who excluded the evidence to observe: “... I would have done precisely what [the officers] did under the circumstances . . . .” The police errand was one of mercy. This was not rampant, arbitrary, impulsive, unthinking police action. Rather, the record discloses the protective arm of government, restrained, moderate, helpful, carefully adapted to the realities and exigencies of an unusual factual situation. Such police action is to be encouraged rather than discouraged. In my opinion the pat-down was fully justified, and was not “unreasonable” within the fair meaning either of the Fourth Amendment of the federal Constitution or article I, section 13, of the California Constitution.
Even if this limited search was improper, however, I would not rigidly apply the exclusionary rule in a case such as this one in which the police were clearly engaged in their protective rather than their crime prevention capacity. No purpose is served by such an application.
For these reasons I would affirm the trial court’s judgment of conviction.
McComb, J., and Clark, J., concurred.
Respondent’s petition for a rehearing was denied March 24, 1976. McComb, J., Clark, J., and Richardson, J., were of the opinion that the petition should be granted.