Opinion by
Ronald Eugene Storck was taken into police custody in Honolulu, Hawaii, and then extradited to Pennsylvania to face criminal charges pending in Bucks County, Pennsylvania.. Police officers were subsequently sent to Honolulu to investigate Storck’s aсtivities during his stay in that area, and while there interviewed á Frank Carreira, who at the time wаs living on a sixty-five foot power boat. Carreira told the officers, that beforе his arrest Storck had manifested an •intention to purchase the Carreira boat, and before leaving for New York purportedly to obtain the necessary mоney, had “stored” in a room on the boat a quantity of items, including two suit cases, three' or four *199 boxes and a duffel bag. Two days later, tbe officers returned to the boat without a search warrant and, after telling Carreira that they had “a right to these items” were “allowed” by Carreira to take possession of the suit cases, boxes and duffel bag. Later, upon opening these items the police discovered enclosed therein a series of articles which the Commonwealth plannеd to use against Storck in the prosecution of the criminal charges pending against him in Bucks County, A timely pretrial motion to suppress this evidence was filed, and after a hearing the court below granted the motion. The Commonwealth filed this apрeal. We affirm.
There is no claim that probable cause existed to warrаnt a seizure of the suppressed evidence, but the Commonwealth contends thаt the evidentiary use therer of is constitutionally permissible because the constitutional protection against an unreasonable search and seizure wаs waived. The burden of proving such a waiver rests upon the asserting party.
Bumper v. North Carolina,
The Commоnwealth, first asserts that such a waiver was established through the testimony of Carreira thаt he gave permission to the police to take possession of the suit cases, boxes and duffel bag. For the purpose of this opinion, it is unnecessary to decide whether this permission was validly obtained or was binding on Storck as far as the containers themselves are concerned. But see,
Frazier v. Cupp,
*200
The suit cases, boxes and duffel bag were merely “stored” on Carreira’s boat. His possession was for a limited'purpose, and somewhat akin to that of a bank which rents boxes in its safety box vault for the “storage” of its customers’ valuables. Carreirа had no authority to open the containers or to use them for his own purposes such as in
Frazier v. Cupp,
supra, nor do the facts establish that Storck relinquished or abandonеd his ownership or control in and over the articles stored. -Hence, the contention of the Commonwealth that Carreira enjoyed an independent right of his оwn to consent to the seizure cannot be sustained. Cf.
Stoner v. California,
Here, Carreira, like the landlord in Chapman, supra, and the hotel clerk in Stoner, supra, could not effeсtively waive Storck’s constitutional right to be secure in his “personal effects,” as secured by the Fourth Amendment.
' Finally, the Commonwealth contends that a waiver existed, because Storck’s personal attorney in Honolulú, John Ahrens, Esq., gave Carreira permission by phone to deliver the suit cases, boxes and duffel bag to the police. The lower court found as a fact, based on competent and credible evidence, that this phone conversation did not take placе until after Carreira had already given the police possession, and, therefore, the permission given by Ahrens is of little moment in resolving the pivotal issue of Carreira’s right to waive Storck’s constitutional protection.
*201 Also, under the circumstanсes, we need not reach the question of whether or not an attorney may pretrial and without consultation waive a protection given his client by the Constitution.
Order affirmed.