The "probable cause standard" was thus substituted as the basis of arrest rather than a warrant. It has also been stated, in United States v. Grosso, 225 F. Supp. 161 (W.D.Pa., 1964) that an arrest without warrant for a misdemeanor not committed in the presence of the arresting officer is constitutional if pursuant to an arrest statute authorizing such arrests based upon probable cause. "When so based on probable cause, the arrest is legal when made * * *. As so interpreted, (the statute) clearly meets federal constitutional standards."

On the other hand, if the search is held to have been a "state" undertaking with minimal federal involvement, the warrant, assuming proper issuance under state law, need only conform to federal constitutional requirements. See, e. g., United States v. Johnson, 451 F.2d 1321, 1322 (4th Cir. 1971), cert. denied, 405 U.S. 1018, 92 S.Ct. 1298, 31 L.Ed.2d 480 (1972); United States v. Coronna, 420 F.2d 1091, 1092 n.2 (5th Cir. 1970); United States v. Cotham, 363 F. Supp. 851, 855 (W.D.Tex. 1973) United States v. Grosso, 225 F. Supp. 161 (W.D.Pa. 1964). An argument can be made that the search was "federal" in character, but we are more inclined to view the search as a "state" undertaking in which federal agents participated solely to supply additional manpower for the execution of the warrant.

Consequently, federal customs officers may now make warrantless arrests for narcotics misdemeanors on probable cause. See also United States v. Grosso, 225 F. Supp. 161, 168-170 (W.D.Pa. 1964) (Pennsylvania statute authorizing warrantless arrests for misdemeanor offenses involving "gaming devices" is constitutional). This conclusion is not undermined by occasional references to state law in cases challenging the validity of state arrests.

We do not reach the point urged by the appellant that unrecorded oral statements to the magistrate may not be the basis for a finding of probable cause to issue a warrant. United States v. Sterling, 3d Cir. 1966, 369 F.2d 799, 802 n. 2; Miller v. Sigler, 8th Cir. 1965, 353 F.2d 424; United States v. Grosso, W.D.Pa. 1964, 225 F. Supp. 161; Commonwealth v. Crawley, 1966, 209 Pa. Super. 70, 223 A.2d 885. The time of a police search of an occupied family home may be a significant factor in determining whether, in a Fourth Amendment sense, the search is "unreasonable."

The exhibits in question were seized in searches conducted at various places at different times. Prior to trial these exhibits were made the subject of a motion to suppress evidence filed by the appellant and three other defendants under rule 41(e) of Fed.Rules Cr.Proc., 18 U.S.C.A. This motion was denied, United States v. Grosso, D.C., 225 F. Supp. 161. A separate trial was granted the appellant on his motion for a severance filed under rule 14 of Fed.Rules Cr.Proc., 18 U.S.C.A. The arguments of the defendant relating to the admissibility of the exhibits will be separately discussed.

An arrest without a warrant in a misdemeanor case is lawful where the offense is committed in the arresting officer's presence and where he has probable cause to believe that it is being committed. Hart v. United States, 5 Cir., 316 F.2d 916; United States v. Pizzarello, 2 Cir., 386 F.2d 177; United States v. Gormon, D.C., 36 F.R.D. 416; United States v. Grosso, D.C., 225 F. Supp. 161; Jordan v. Peyton, D.C., 264 F. Supp. 946. The basis of the claim of illegal search, seizure and arrest here is as thin as Mr. Lincoln's homeopathic soup which was made by boiling the shadow of a starved pigeon.

"We do not believe, however, that dismissal of the indictments would be an appropriate sanction * *. The law calls only for exclusion, and we do not0 think that the public interest would be served by requiring more than this in the exercise of our supervisory power over the administration of criminal justice." See also United States v. Grosso, 225 F. Supp. 161, 175 (W.D.Pa. 1964) ("the use of such illegally obtained evidence is irrelevant where the issue facing the Court is whether * * * an indictment should be dismissed."); United States v. Block, 202 F. Supp. 705, 707 (S.D.N.Y. 1962) ("The motion to suppress the evidence is granted. The motion to dismiss the indictment is denied, because the court cannot speculate upon the nature and quality of the evidence presented to the grand jury.").

Indeed, our research has disclosed no case in which an "in the presence of" requirement has been held constitutionally indispensible to a valid arrest. See Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974); Diamond v. Marland, 395 F. Supp. 432 (S.D. Ga. 1975); United States v. Grosso, 225 F. Supp. 161 (W.D. Pa. 1964); Lurie v. District Attorney of Kings County, 56 Misc.2d 68, 288 N.Y.S.2d 256 (1968). We have said in State v. Davis, 105 R.I. 247, 251 A.2d 394 (1969), that article 1, § 6 of our state constitution has the same effect as the fourth amendment of the Federal Constitution.

However, a court cannot quash an information merely because the court believes that some or all of the Commonwealth's evidence has been obtained illegally. See, e.g.: United States v. Calandra, 414 U.S. 338, 344-345, 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569 (1974) (pertaining to grand jury indictments); United States v. Goldman, 439 F. Supp. 337, 348 (S.D.N.Y. 1977); United States v. Grosso, 225 F. Supp. 161, 175 (W.D.Pa. 1964); United States v. Sawyer, 213 F. Supp. 38, 42 (E.D.Pa. 1963). Similarly, a court cannot properly quash a criminal information merely because it believes the accused has been improperly charged or has a defense to the crime with which he has been charged.

The in-presence requirement being nonconstitutional, it may be legislatively abolished as to particular offenses or circumstances.United States v. Grosso, 225 F. Supp. 161 (W.D. Pa. 1964). Because the applicability of the requirement depends upon the severity of the punishment attached to an offense, the requirement is alien to juvenile cases, where there is no punishment.