*3 containing Watson, Mr. and billfolds BREITENSTEIN, Before HILL and Mur- identifications Willie SETH, Judges. Circuit ray Murray. and of Willie was photograph in his identified from a bill- BREITENSTEIN, Judge. Circuit April, fold as before worked This case is before us on now a re- janitorial for the which cleaned service mand from the Court of the night. provided the bank at He had been opinion our States. first key a he worked the bank while there. Murray we held that Willie standing object did not have to a county A then went to Kan detective search which resulted in the seizure City, Missouri, sas and enlisted aid him at the trial. arresting police in and there Willie Murray Cir., See Henry.1 accompanied two Kansas 333 F.2d 409. The Court va- City detectives, Hen of whom knew judgment cated our and remanded the ry, juvenile, previous as a result a “validity for consideration investigation “strongarm robbery,” of a Henry Murray of the arrest of and of Michigan, to 3421 the address the local money the search for and seizure of the police Henry, had for and and then Willie question in as an incident of ar- such Michigan.2 to 3411 The latter address Murray rest.” See apartments. an old into home converted L.Ed.2d The officers to the second floor and went knocked on a Albert door.3 Shortly opened April 6, after A.M. on the door. of the officers 3:00 One sounding burglar and, through open alarm identified himself door, federally asleep Mission, apparently at a in on a insured bank saw Kansas, investiga- and caused an immediate couch. The cold both Albert officer tion. A Local officers found that were under arrest. burglary premises had been committed and that search followed.4 Be burglars haste, apparently neath bathroom offi- had left the floor of Before that arrived in Kansas 3. This 8:45 A.M. detective occurred about City, knowledge, day burglary. his and without Willie had been arrested in Mission. description 4. A is found Michigan opinion, 2. Both F.2d and will were owned our first 3421 and 3411 wife, stepfather repeated. and not be Watson his Henry. and and mother Willie currency, part of the of- $1,030 Here the commission found offense. cers physi- bearing questioned. wrapped tapes not be fense

which was apparent officers stamps Mis- cal evidence used at the marks made breaking entering showed bank. sion taking of the bank. Albert, Willie, Thomas were and one question had rea- is whether for violations indicted federal court connecting Henry grounds sonable for (b). An 2113(a) and of 18 U.S.C. § with that crime. appropriate Rule motion under was made F.R.Crim.P., 41(e), suppress evi- giv first be Consideration must dence obtained the search en to the search Pontiac. Between objec- trial motion was denied. At the day 2:00 and 2:45 A.M. tions to the introduction evi- burglary patrol an officer on cruiser and Thom- dence overruled. Albert spot passed car where the acquitted was found as were Willie parked and *4 found ear was not there. the charges jury. guilty by the No federal later saw the car at about 4:30 He against Henry state made but were reported in 4:45 A.M. and to officers charges and were filed him later vestigating burglary. They checked the dismissed. Missouri told that the and were license validity it had of been issued to a Ford. These cir The constitutional plus burglary nearby subsequent of the cumstances the the and seizure search grounds in money depends were reasonable for further va a vestigation They Henry. of the lidity This in found the arrest car. of engine keys officers, depends warm and on whether the saw turn they arrest, probable floor. The situation that of had was such moment justified examining glove de cause to make it. Probable cause pends compartment they moment on whether at that found the bill where offi and circumstances within the Henry. facts of folds Willie and believe We they knowledge had and of which cers’ prudent that a man would have acted as reasonably trustworthy information were the officers did. prudent inman sufficient to warrant a promptly Willie was as identified a believing Henry that had committed employee janitorial of former service committing Here the an offense.5 was bank. shown addresses investigation pursuing officers registration on the car and in bill- felony, burglary, it was bank and City, folds were Kansas Missouri. necessary offense be com not that investigating told a detec- only presence that mitted in from local tive sheriff’s office what they that had cause to believe reasonable they had found. went The detective guilty felony.6 Henry The Su was a City the Records Bureau of the Kansas preme “The rule Court has said: Department Police and found that Hen- practical, probable a non-tech cause is ry previously been arrested affording conception com best nical McKinney. then went to Detective for promise has found ac that been Robbery Mc- Bureau and asked that * * * commodating opposing often assigned Kinney help him. Mc- interests.” Kinney City and another Kansas detec- accompanied Two factors a deter enter into Kansas tive detective probable cause, Michigan mination the commis to the address Avenue where McKinney Henry of a criminal and the iden sion- offense arrested and Albert tity person perpetrator of that heretofore the circumstances related. 91, Ohio, 160, Brinegar 5. State of Beck v. v. United 223, 13 85 S.Ct. L.Ed.2d 142. 69 S.Ct. 93 L.Ed. v. 6. Carroll 156-157, 45 S.Ct. 69 L.Ed. 543. complain

The two were taken to the station. the search because Shortly premises. at- after their arrival there an his connection with the torney phoned, station, relationship then came to the had the same to the for about 45 minutes talked to them as did to search and Willie. presence officer. Extra- out as an incident to a lawful arrest seize things dition was waived and Albert “extends to under the accused’s ** * and, were taken to Kansas. immediate control to an depending extent on the circumstances something Probable cause is case, place ar- to the he is where suspicion8 than and some mere more 12 In rested.” the circumstances here thing less than which would sus presented, we that the search of believe tain a Probable conviction.9 cause the bathroom was reasonable. probabilities. concerned As the Su part Brinegar search revealed Court said fruits the crime. The fact 69 S.Ct. subsequently charged technical; was not 1310: “These are not only arp practical federal offense is immaterial. The the factual and considera- objection everyday made to the life on which reason- tions illegal prudent men, claim of an not techni- search and seizure. able cians, probative All facts rational act.” us value before investigating specific are admissible local a fel- unless some rule officers were ony just forbids.13 Here no rule which had been committed. forbids *5 product They thorough of in the search and was but restrained seizure properly They “reasonably in received actions. acted as evidence. prudent” men,10 discreet and and used Affirmed. judgment. sober Their was conduct properly responsive “both to the needs SETH, Judge (dissenting). Circuit liberty rights of individual and to the By reason of the remand to us of this community.” opinion In our by Court with di- Henry arrest of was lawful. rection that it be reconsidered ref- person, to erence of arrest a third The search was incident to the regarded we must assume that the Court Henry lawful arrest of and was made appellant’s relationship prem- to the immediately The thereafter. arrest oc ises searched to be such that he had curred the door of a second-floor standing object to the introduction in- apartment previously occupied then and objects of The evi- seized. by Henry per and his brothers with dence with which arewe here concerned parents, of their mission owners of during prem- was seized a search of these building. was found un ises. For want of a better term to refer by der the floor of a hall bathroom premises appellant, to the in relation to occupying those the second floor. The “protected.” will be referred to as only occupant other of the second floor was Thomas who was indicted with of Willie constitutional protected premises and acquitted. The use the bathroom as to the course permission personal may waive, was either with he one which parents as owners or of the tenant Thom no contention is made that did so. he government argues as. We take action of the that he instead holding right by Court as that Willie had stand- lost the an event over which Mallory States, 449, Ventresca, 8. v. United 354 U.S. 11. United States v. 1356, 454, 102, 112, 741, 748, 77 S.Ct. L.Ed.2d 1479. L.Ed.2d 85 S.Ct. 684. States, 9. v. United 168, 364, 80 S.Ct. L.Ed.2d 134. 12. v. United U.S. Preston 881, 367, 883, 11 84 S.Ct. L.Ed.2d 777. Husty Wigmore ed., Evidence, L.Ed. 629. 51 S.Ct. 13. 1 on 3d recognized control, took of such stature as to had no and which be place premises a fundamental as in Harris in his absence one on the knowledge. apparently This United without his 67 S.Ct. person, L.Ed. it is difficult the arrest another event was Henry Murray, by appellant. A understand how it could be lost such brother made which a of circumstances thereto was combination unrelat- search incident prem- protected appellant’s part, thoroughly ed to on action covered completely beyond all his control. and resulted the seizure ises question. This arrest at the evidence particular respects The circumstances are some place of chance was a matter related to the cases concerned with a the whereabouts determined given by consent to search another mem- person time of his arrest. at the arrested family or ber the accused’s with con- Murray on The arrest one or cotenant sent co-user proba- premises have been or other owner of an interest cause, to such ar- the search incident ble rest, premises. many con- such cases its as to ex- and the search sent is found to as to the be effective rights ap- tent, but the accused, but the decisions on are based upon pellant or fall should not stand voluntary per- nature of the act to him. unrelated such circumstances They “supervision” son with “control” or depend upon whether should not property.1 In before us the case place of arrest voluntary by anyone no there was act elsewhere, premises wheth- or prop- who connection with illegal. It is arrest was er the erty. Henry Murray’s in the arrest appellant has questionable whether even building any- indicates no consent to standing his brother’s to assert that thing, fact that illegal rights by an arrest. violated protected would be also as to him not does argument government’s alter the situation because reliance is crime, as fruit of a once here, or the upon any arrest alone and not volun- which in a manner has been seized *6 tary government’s acts. Under the the- thereby person it is as to is ory just well the arrest could as have everyone regardless of legally as to seized stranger. complete been of a relationship premises or universally certainly is events. This legality ap- seizure as position, recognized and a time-honored rights pellant, and to his should be the inconsistent result thereof but determining ob- factor. made substance existence of jection to the been rights the Su- which rights. seized in violation his exist. There Court found to action, party he is not a in this recogniz- purpose in no real would prosecuted, and was not whether easily lost if can be so them of his seizure was was not violation the acts of others. rights would not a sufficient seem be appellant’s pro- for a decision as to to be basis rights. If the unreasonable searches tected Commonwealth, Ky. Cir.); example Morris v. United v. see Roberts For 58; Shambley, Cir.) People States, (8th S.W.2d 38, v. where 332 F.2d 892 172; v. 122 N.E.2d Cofer and the 4 Ill.2d of the wife was secured consent (5th Cir.); prosecution hus F.2d 677 United (7th Sferas, band, 210 F.2d 69 States v. United Amos Cir.) (partners); Driskill United v. 65 L.Ed. Cir.); (9th pass 281 F. 146 effectiveness court did not 553; Sergio, D.C., F.Supp. di States v. consent. Other cases a wife’s Kinderman, Minn., Cairo, holdings 136 N.W. and State v. include: State v. verse (Sup.Ct.); Stein 2d A.2d R.I. (9th States, 166 F.2d 851