dissenting:

Today this Circuit breaks new constitutional ground in a troublesome interpretation of fourth amendment law. Going beyond even the First Circuit in United States v. Viegas and the Seventh Circuit in United States v. Klein, the majority finds in a Supreme Court case concerned with the delay of mail the authority to justify seizure of a suitcase — seizure not' only without a warrant but without even probable cause. Furthermore, in order to apply this new doctrine, the majority must disregard the simultaneous unlawful arrest of the defendants. In examining the seizure of the suitcases as a separable, independent action, the majority seeks to legitimize part of what was clearly a single, integrated instance of unconstitutional police conduct. I must respectfully dissent. While I can understand, and indeed share, the reluctance of the majority to release these defendants when the police conduct involved seems so “reasonable,” we cannot ignore the doctrinal framework of decided fourth amendment law in search of a particular result.

I. Seizure of the Suitcases

The majority’s analysis begins by indicating that the “real issue” here is whether government agents could “detain” the suitcases without probable cause for twenty minutes. In Section III, the majority tells us that a stop and detention of the appellants was justified by Terry. The “detention” of the suitcases, which the majority acknowledges to be a fourth amendment seizure, is supposedly justified independently under Van Leeuwen. While the Supreme Court in Dunaway made it clear that the Terry exception was a narrow one, the majority avoids the force of this stricture by stating that “Terry and Dunaway and their progeny relate to detention of persons and not inanimate objects.” The seizure and detention of the suitcases is not subject to the same restrictions, we are told, and is therefore to be analyzed under a general standard of reasonableness under Van Leeuwen. To understand why such an approach is a profound departure from both Supreme Court and Ninth Circuit precedent, we must first look to some basic fourth amendment principles.

United States v. McCormick, 502 F.2d 281, 285 (9th Cir. 1974) (bracketed language in McCormick). 1 “Unless a warrantless search or seizure meets one of these exceptions, the evidence thereby obtained is inadmissible at trial.” United States v. Jamerson, 549 F.2d 1263, 1270 (9th Cir. 1977). See United States v. Allard, 634 F.2d 1182, at 1184-1187 (9th Cir. 1980).

The majority takes a different approach, concluding that the prohibition against warrantless searches and seizures is not a per se rule subject to only limited exceptions. It states that “the books are replete with cases wherein, for a variety of reasons, warrant-less searches without probable cause have been held not unreasonable,” and offers as examples a number of recent decisions. The searches in these cases were not justified, according to the majority, “as exceptions to the general constitutional prohibition against warrantless searches without probable cause. These decisions are bottomed upon the concept that in the light of all the circumstances the searches were not unreasonable by constitutional standards.”

This notion goes to the heart of my disagreement with the majority. Two considerations persuade me that it does not correctly state fourth amendment law. First, it is impossible to square with the repeated statements by the Supreme Court on the subject of the warrant requirement. See, e. g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 , 93 S.Ct. 2041, 2043 , 36 L.Ed.2d 854 (1973); Coolidge v. New Hampshire, 403 U.S. 443, 454-55 , 91 S.Ct. 2022, 2031-32 , 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967); United States v. McCormick, 502 F.2d 281, 285 (9th Cir. 1974). Second, and perhaps more significantly, the very cases cited by the majority did not actually turn on, nor do they support, any such “reasonabless in light of all the circumstances” rationale. See United States v. Ramsey, 431 U.S. 606, 621 , 97 S.Ct. 1972, 1981 , 52 L.Ed.2d 617 (1977) (Rehnquist, J.) (“[T]he ‘border search’ exception ... is a longstanding, historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained, and in this respect is like the similar ‘search incident to lawful arrest’ exception treated in United States v. Robinson, 414 U.S. 218, 224 , 94 S.Ct. 467, 471 , 38 L.Ed.2d 427 (1973).”); Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 , 98 S.Ct. 1816, 1820 , 56 L.Ed.2d 305 (1978) (“The Secretary urges that an exception from the search warrant requirement has been recognized for ‘pervasively regulated businesses],’ United States v. Biswell, 406 U.S. 311, 316 , 92 S.Ct. 1593, 1596 , 32 L.Ed.2d 87 (1972), and for ‘closely regulated’ industries ‘long subject to close *1365 supervision and inspection.’ Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77 , 90 S.Ct. 774, 775, 777 , 25 L.Ed.2d 60 (1970). These cases are indeed exceptions, but they represent responses to relatively unique circumstances.”); Wyman v. James, 400 U.S. 309, 317 , 91 S.Ct. 381, 385 , 27 L.Ed.2d 408 (home visit required for AFDC eligibility not a search); United States v. Schafer, 461 F.2d 856, 858 (9th Cir.), cert. denied, 409 U.S. 881 , 93 S.Ct. 211 , 34 L.Ed.2d 136 (1972) (even in administrative search context, “[t]he proposition is firmly established that ‘except in certain carefully defined classes of cases, a search of private property is “unreasonable” unless it has been authorized by a valid search warrant.’ quoting Camara v. Municipal Court, 387 U.S. 523, 529 , 87 S.Ct. 1727, 1731 , 18 L.Ed.2d 930 (1967)); McMorris v. Alioto, 567 F.2d 897, 899 (9th Cir. 1978) (“Those cases that sustained limited searches of persons seeking to enter sensitive facilities recognize an exception to the general requirement that searches are proper only if conducted pursuant to a lawful warrant. United States v. Davis, 482 F.2d 893 (9th Cir. 1973); Downing v. Kunzig, 454 F.2d 1230 (6th Cir. 1972).”) 2 Fourth amendment questions continue to be analyzed according to the principles set forth in such cases as Coolidge and Katz .

There is no question that, although the majority often chooses to use the word “detention,” there was a seizure of the suitcases here. Because there was no warrant, the majority must point to an exception to the warrant requirement that would justify a seizure under circumstances where, as here, the police not only lack the judicial determination of probable cause that is the necessary prerequisite to the issuance of a warrant, but the underlying probable cause itself. See United States v. Allen, 644 F.2d 749 (9th Cir. 1980) (finding unlawful warrantless seizure of briefcase in absence of probable cause). 3 The majority points to no such exception, and I am unable to find one. *1366 Its analysis thus seems to dispense with the Supreme Court’s carefully guarded doctrinal framework in reaching this newly-announced general standard of “reasonableness as required by the Fourth Amendment in the seizure and detention of inanimate objects.”

b. Van Leeuwen and Terry

For both its approach and conclusion, the majority, like the Klein and Viegas courts, relies heavily on principles it perceives in United States v. Van Leeuwen. Van Leeuwen was a case involving the detention of first class mail. 4 The opinion certainly gives no indication that it is creating a whole new branch of fourth amendment doctrine; indeed, nowhere in the opinion does the Court give any indication that the case is designed to have any application outside the mail context. 5 Given the doctrinal background for the Court’s decision, including the long acceptance of the “familiar principle . .. that no amount of probable cause can justify a warrantless search or seizure absent 'exigent circumstances,’ ” Goolidge, 403 U.S. at 468 , 91 S.Ct. at 2039, it is unlikely that the Van Leeuwen Court would think to dispense with both the probable cause and warrant requirements in a broad range of cases without an extended discussion of the careful balancing of inter *1367 ests that would lead to such a result. Even when the Court has taken the less significant step of setting out an exception to the warrant requirement alone, such a discussion is virtually inevitable. See, e. g., United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973) (scope of search incident to lawful arrest); Warden v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967) (hot pursuit); Carroll v. United States, 267 U.S. 132 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925) (“automobile” exception). Similarly, when the Court announced its landmark decision in Terry, and “for the first time recognized an exception to the requirement that Fourth Amendment seizures of persons be based on probable cause,” Dunaway, 442 U.S. at 208, 99 S.Ct. at 2254, the Court was careful to explain why this specially limited intrusion was not subject to the standard requirement of probable cause. See 392 U.S. at 20-27, 88 S.Ct. at 1879-1883 ; Dunaway, 442 U.S. at 208-210, 99 S.Ct. at 2254-2255 (discussion of Terry).

A more likely reading of Van Leeuwen would treat it not as a case creating a new type of constitutionally permissible seizures of objects, but as a case defining the level of expectation of privacy in mail which determines the extent of applicability of the fourth amendment itself. See Rakas v. Illn ois, 439 U.S. 128, 140-43 , 99 S.Ct. 421, 428-430 , 58 L.Ed.2d 387 (1978) (citing Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967), for the proposition that capacity to claim the protection of the fourth amendment depends upon whether the person who claims the protection has a legitimate expectation of privacy in the invaded place). When one closely analyzes the Court’s reasoning in Van Leeuwen, the correctness of this view becomes clear.

Justice Douglas’ discussion in Van Leeuwen begins by focusing on the constitutional protections historically applicable to mail, a discussion which emphasizes security from government intrusion of the interior contents of letters and packages as a fourth amendment value and notes the important freedom of expression interests in those contents under the first amendment. 397 U.S. at 251-52 , 90 S.Ct. at 1031-1032 . It is from this perspective, one that views interference with the mail as interference with communication, that the Court turns to the “sole question” of whether the conditions for the detention and outward inspection of the packages had been satisfied. Id. at 252, 90 S.Ct. at 1032 .

The Court next notes that the suspicious nature of the packages “certainly justified detention, without a warrant, while an investigation was made.” Id.

Id. (emphasis added).

This passage appears only to establish fourth amendment parameters for the sui generis category of mail. Surely it does not contain the sweeping proposition that any time the police seize and detain any object there is “no possible invasion” of fourth amendment rights. Rather, it is clear that the Court is saying only that the mere detention of mail, the immediate possession of which has already been voluntarily surrendered to government officials, does not necessarily constitute a fourth amendment seizure — although in “theory only,” such a detention could at some point become an unreasonable seizure.

Van Leeuwen thus stands in sharp contrast to Terry, where the Court acknowledged that the defendant’s fourth amendment interests had been intruded upon when he was seized and searched, 392 U.S. at 16-20, 88 S.Ct. at 1877-1879 , but concluded that this specially limited type of *1368 intrusion was justified. In Van Leeuwen, on the other hand, the Court stated:

397 U.S. at 253 , 90 S.Ct. at 1032 (emphasis added). Van Leeuwen therefore can only be understood, both from its heavy emphasis on the interests in and characteristics of mail and its cursory examination of broader fourth amendment principles, as a case concerned with the nature and extent of fourth amendment rights in mail.

Two other points buttress this conclusion. First, as mentioned above, mail is necessarily voluntarily placed in the possession of the government. The detention involved there is a significantly different type of intrusion from the type of seizure involved in the instant case, and is not surprisingly subject to a different type of analysis. The Court in Van Leeuwen was thus very careful not to use the word “seizure” in describing the treatment of the mail. Rather than a removal from the possession of an individual, this was merely an increase in the amount of time a package already in government hands remained in. government hands. Second, the significant amount of detention time involved in Van Leeuwen makes broader applicability unlikely. If, as the majority holds today, Van Leeuwen constitutes authority for a broad range of object seizures, then it would follow that in at least some circumstances, such an object could be held not merely for the twenty minutes involved in the instant case, but for at least the time permitted in Van Leeuwen —in the area of nineteen hours from the detention to the time probable cause arose in the case of the second package — without having invaded any interest protected by the fourth amendment. 6 Such a result cannot seriously be argued, which only illustrates how limited the applicability of Van Leeuwen must truly be.

In short, I find very little support for the majority holding. In contrast with Van Leeuwen, where “[n]o interest protected by the Fourth Amendment” was infringed, it is undeniable that fourth amendment interests are intruded upon when the police remove a suitcase from an individual’s possession. The fundamental character of such an action cannot be altered by labeling it a detention — it is unquestionably a fourth amendment seizure. While the logic of the majority opinion makes sense on the surface, the Supreme Court has repeatedly and emphatically rejected the balancing-type “reasonableness” inquiry the majority chooses here, except for rare instances involving extremely limited intrusions. As the Court noted recently in the arrest context:

Dunaway, 442 U.S. at 213-14, 99 S.Ct. at 2256-2257 . I find no support for the majority’s assertion that the police can seize a suitcase from an individual on mere reasonable suspicion. 7 Indeed,-1 find the majority’s statement that “no fourth amendment right was invaded” by such an action to be unwarranted.

The majority’s departure from established fourth amendment principles may seem eminently reasonable and quite justified by pragmatic considerations of law enforcement. Yet, as Justice Bradley sagely observed in Boyd v. United States, 116 U.S. 616 , 6 S.Ct. 524 , 29 L.Ed. 746 (1886), it is just that sort of temptation that courts must carefully resist. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.” Id. at 635 , 6 S.Ct. at 534 .

II. Relationship of the Unlawful Arrest

I also question the majority’s analytical approach in evaluating the seizure of the suitcases as separable from the unlawful arrest. The majority looks to United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1980) and United States v. Mayes, 524 F.2d 803 (9th Cir. 1975) for support of its argument that the unlawful arrest did not “taint” the seizure and search of the suitcase. These cases do not, however, support this approach.

In Mayes , statements made by a defendant when initially detained led the police to follow his footprints backward, thereby discovering the marijuana cache that supplied the probable cause for Mayes’ arrest. In Chamberlin , statements made during a Terry stop did not need to be suppressed when that stop later became an unlawful arrest.

*1370 There is a fundamental difference between those cases and the one at bar. Here, the seizures of the individuals and suitcases were part of a single, unified police action. The majority chooses to slice a lesser included intrusion (seizure of the suitcases) from the simultaneous greater intrusion (unlawful arrest) that began at the inception of contact with the defendants. This is a unique approach to fourth amendment adjudication. The issue here is the scope of the fourth amendment violation itself, not whether the evidence involved was fruit in the sense that it was discovered pursuant to a violation. The question is thus not, as in Chamberlin , whether evidence obtained in the early, legitimate stages of what became an unlawful arrest is admissible, but whether a seizure of luggage that is clearly ancillary to an unlawful arrest should be subject to a separate analysis. 8 The majority cites no precedent for fragmenting a unified, simultaneous action into isolated parts for analysis. Such an approach would seem to be contrary to the deterrent policy behind the exclusionary rule. See Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961). In light of that policy, I cannot approve the judicial technique of winnowing a fortuitous “lawful” facet out of an otherwise unlawful incident. I see no reason for courts artificially to bifurcate police actions on a post hoc basis in an attempt to evade the exclusionary rule.

What happened here was a seizure of people and suitcases. I would analyze this integrated action as a single, unlawful seizure and thus would never have reached the Van Leeuwen issue.

I would reverse the district court.

. Coolidge v. New Hampshire, 403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971), made it clear that the long standing Katz per se rule applied to seizures as well as searches. In part II C of that opinion, the Court discussed the state’s argument that a seizure and subsequent search of an automobile with probable cause but without a warrant was still justified under the “plain view” exception to the warrant requirement. The Court concluded that the seizure did not fit the exception, and noted that consideration of the legality of the subsequent search was thus unnecessary. 403 U.S. at 464-65 , 91 S.Ct. at 2037. Thus there can be no doubt that it was the failure to find an exception to justify the warrantless seizure that gave rise to a fourth amendment violation at that point, without regard to the subsequent search. See United States v. Edwards, 415 U.S. 800, 802 , 94 S.Ct. 1234, 1236 , 39 L.Ed.2d 771 (1974) (“The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions.” Here a warrantless seizure of clothing was upheld as pursuant to a lawful arrest.)

. The majority also looks for support to Michigan v. Summers,-U.S.-, 101 S.Ct. 2587 , 69 L.Ed.2d 340 (1981). Summers, like Terry and Dunaway, is a case dealing with the detention of people, and thus provides no further support for the majority’s object seizure doctrine.

. The absence of probable cause at the time the DEA agents seized the suitcases marks a crucial distinction between the instant case and, e. g., Arkansas v. Sanders, 442 U.S. 753 , 99 S.Ct. 2586 , 61 L.Ed.2d 235 (1979) and United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977). The latter cases involved seizures followed by searches of, respectively, a suitcase and a footlocker, in the absence of a warrant. In both cases, probable cause was found to exist; the crucial inquiry was whether an exception to the warrant requirement applied to relieve the police of their obligation to obtain a warrant before searching the contents of the seized items.

While the Court did not need to address the propriety of the seizures in either case, the seizure in Sanders could presumably have been justified by the presence of probable cause plus exigent circumstances, see 442 U.S. at 761 , 99 S.Ct. at 2591 (“Having probable cause to believe that contraband was being driven away in the taxi, the police were justified in stopping the vehicle, searching it on the spot, and seizing the suitcase.”), and the seizure in Chadwick was incident to a lawful arrest after a narcotics dog indicated the presence of contraband in the trunk of the defendants’ car, see 433 U.S. at 3 , 97 S.Ct. at 2479. In both cases, however, any exigency ended once the police had seized the objects to be searched and had them securely within their control. See 442 U.S. at 763 , 99 S.Ct. at 2593; 433 U.S. at 13 ; 97 S.Ct. at 2484. Thus warrantless searches of the seized objects, even with probable cause, were impermissible.

Here, by contrast, the seizures could not be justified on a similar basis due to the lack of probable cause (or a lawful arrest). Furthermore, it is interesting to consider whether one could even argue the existence of exigent circumstances. Due to the unlawful arrest, the defendants were immobilized across the room from their suitcases. It is difficult to see what exigency remained after that time. See 442 U.S. at 763 , 99 S.Ct. at 2593; 433 U.S. at 13 , 97 S.Ct. at 2484. Indeed, I would challenge, the use of an exigent circumstances analysis when the exigency has been removed by unlawful police action. This point helps to illustrate the difficulties inherent in the majority’s analytical approach that attempts to consider the seizure of the suitcases as independent of the unlawful arrest. See Part II, infra.

Notably, the Court in both Sanders and Chadwick rejected prosecution arguments that the exigent circumstances exception associated with automobiles under Carroll should be ex *1366 tended to validate the searches there at issue. As the Sanders Court stated:

442 U.S. at 760 , 99 S.Ct. at 2591 (citations omitted).

. The facts in Van Leeuwen were described by the Court in the following manner:

397 U.S. at 249-50 , 90 S.Ct. at 1029-1030 .

. Indeed, in the eleven years since Van Leeuwen was decided, the Supreme Court has cited it only twice and this court has cited it only three times, one of which was the remand of Van Leeuwen itself. In none of these cases is there any suggestion that the principle enunciated in Van Leeuwen applies to anything other than mail. See United States v. Chadwick, 433 U.S. 1, 10 , 97 S.Ct. 2476, 2482 , 53 L.Ed.2d 538 (1977) (citing Van Leeuwen as holding that a search warrant was necessary to open two packages); Doe v. Bolton, 410 U.S. 179, 211 , 93 S.Ct. 739, 757 , 35 L.Ed.2d 201 (1973) (Douglas, J. concurring) (citing his Van Leeuwen opinion for the proposition that the first amendment protects the privacy of first class mail); United States v. Choate, 576 F.2d 165, 176 (9th Cir. 1978) (citing Van Leeuwen as support for holding that use of a mail cover, in which information on the outside of an envelope is used, was not an intrusion of a person’s reasonable expectation of privacy); United States v. Sadrzadeh, 440 F.2d 389, 390 (9th Cir. 1971) (cryptic citation to Van Leeuwen as providing no aid to Sadrzadeh. “Where customs is involved there must of necessity be more delay than in the ordinary transmission of the mails.”).

. At the very least, Van Leeuwen would permit such lengthy detentions where, because of administrative problems, such delay was not “unreasonable.” In Van Leeuwen, for example, one package was detained in Washington state overnight because, due to the time difference, it had been received too late in the day to contact federal officials in Tennessee. The Court termed this delay “unavoidable.” See 397 U.S. at 253 , 90 S.Ct. at 1032 . A comparable argument could be made in the instant case, presumably, if the kennel housing the narcotics dog had been closed for the night, so that the dog would not be available until the following day.

This court’s recent decision in United States v. Allen, 644 F.2d 749 (9th Cir. 1980), also suggests that such an approach is incorrect. In Allen , the defendant was approached by DEA agents in an airport because he allegedly fit the DEA’s “airport drug courier profile.” They asked him for identification, and then requested that he accompany them to the airport police station. Upon arrival, they asked if they could search him and he consented. Nothing was found. The agents then asked if they could search Allen’s briefcase. When he refused, the officers seized the briefcase. While they were writing a receipt for the case, Allen remained at the police station talking with the officers. “During this conversation, he made damaging admissions concerning the contents of the case.” Id. at 751 . These admissions were used by Agent Snyder to help support probable cause in his application for a warrant. A search of the briefcase conducted pursuant to that warrant revealed a large quantity of LSD.

We held in that case that the fruits of the search had to be suppressed because “the seizure of the briefcase remain[ed] unjustified by any exception to the requirement of a valid warrant.” Id. at 752 . As in the present case, the lack of probable cause prevented the use of a “probable cause plus exigent circumstances” type formulation.

Of particular interest was our statement that, because probable cause must be determined at the time of seizure, “Allen’s admissions following the seizure of the briefcase cannot be used to justify the seizure.” Id. at 752 n.5. Were a brief detention of the briefcase a legitimate act, as the majority holds today, statements made by the defendant during that apparently brief detention would clearly seem to be admissible to establish probable cause. See, e. g., Adams v. Williams, 407 U.S. 143 , 92 S.Ct. 1921 , 32 L.Ed.2d 612 (1972) (revolver found on defendant’s person pursuant to a Terry-stop gave rise to probable cause to arrest defendant for unlawful possession of a weapon). The majority’s holding today thus also appears to be inconsistent with Alien.

. By employing such an analysis, this court is going beyond both Klein and Viegas. In Klein, the defendants were initially told they were free to go while their suitcases were being detained. See 626 F.2d at 25. In Viegas, after a brief Terry stop, the defendant consented to a dog sniff, and agreed to accompany a DEA agent to his office. When a dog was not available, the defendant was allowed to leave although his bag was retained. See 639 F.2d at 44. Thus neither court was faced with the type of unified action we have here.