Dissenting Opinion by
Me. Justice Robeets:I dissent from the majority’s determination that appellant’s gun was properly used as evidence against him.
At the outset, I have grave doubts whether this evidence could properly be used under state law. To begin Avith, appellant was tried three times, the first two trials resulting in hung juries. At the first trial, appellant’s motion to suppress the gun was granted and the Commonwealth took no appeal. This having been done, I believe that the Commonwealth could no longer utilize this evidence.
*473Under P. R. Crim. P. 2001(g), “the court of a prosecution county shall enforce any order by a court of a seizure county,” except that there remains discretion to suppress evidence previously held admissible. I see no reason why this should not apply where the suppression court and the trial court are in the same county. However, appellant was tried before Rule 2001(g) became effective, and thus he cannot claim the benefit of that rule. Nonetheless, I believe that Rule 2001(g) made no change in the pre-existing law, and as a result I believe that the first determination of suppression should be binding.
I believe decisions from the analogous confession area support this result. Thus, in Commonwealth v. Warfield, 418 Pa. 301, 211 A. 2d 452 (1965), “we impliedly held . . . that the trial judge cannot reverse on the same record at trial the decision made after the pretrial suppression hearing. . . .” Commonwealth v. Washington, 428 Pa. 131, 133, n. 2, 236 A. 2d 772, 773 n. 2 (1968). Although Warfield was decided after appellants trial, it was decided under circumstances equivalent to those which prevailed when appellant was tried, in that rules of criminal procedure governing the problem had not yet been adopted. Thus it is in effect a decision which forms part of the “common law” of state procedure, and its reasoning is persuasive in our case.
Although the Court in Warfield did not need to reach the issue now before us, the statement in Washington is based on the Warfield court’s apparently favorable reference to United States v. Wheeler, 256 F. 2d 745, 747-48, cert. den. 358 U.S. 873, 79 S. Ct. 111 (1958), where the Court stated that a judge should not be placed in a position where he might “overrule a decision by another judge of the same court in the same case.” Although Wheeler applies on its facts to a *474rehearing situation, this Court’s citation of it in War-field, and the subsequent statement in Washington, indicates that its rationale applies more broadly. This is logical, for the considerations are the same whether there is a rehearing problem, a previous pretrial hearing, or a prior suppression determination at trial. Only in a newly-discovered evidence situation might there be any question. Otherwise the determination will in effect be made “on the same record,” see Washington, supra. I do not think that it is relevant that technically a new record will be made, since it will consist of the same evidence as the prior record, absent a valid newly-discovered evidence claim. If a party could have used evidence before but did not, I do not believe that he can be heard to claim a second chance.
Once the determination of suppression was made, that decision should be regarded as final as a trial matter. The Oommonwealth’s proper remedy is an appeal from the suppression order, which it is allowed to take. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304 (1963), cert. den. 375 U.S. 910, 84 S. Ct. 204 (1963). The fact that the trial on the merits resulted in a hung jury is irrelevant to allowing the Commonwealth to once again raise the suppression issue at a subsequent trial, since the determination that the evidence was to be suppressed was separate from the failure of the jury to reach a decision.
Furthermore, because the consent was given by appellant’s wife, I believe that as a matter of state evidentiary law it is questionable whether the evidence which was found as a result of the search may be used against appellant. Pennsylvania follows the rule that, with exceptions not here relevant, a spouse may not give testimony in any form against the other spouse. E.g. Commonwealth v. Wilkes, 414 Pa. 246, 199 A. 2d 411 (1964). The rationale of the rule is to preserve *475marital peace and tranquility. In Wilkes, the wife found lurid love letters written by her husband to another woman, and these letters were made available to the police by the wife. The Court said this situation fell without the general rule because the existence of the letters came about because defendant and his wife did not have a proper marital relationship to begin with, and thus the rationale for the rule—protecting the marital relationship—disappeared.
Here there is absolutely no indication of marital discord at the time of the event in question. Thus under Wilkes and prior cases it seems clear that the wife herself could not offer evidence of the gun. If she could not offer that evidence directly, I do not think it is permissible for her to aid the police in finding the evidence “on their own.” In either event, the threat of marital discord is equally great.
Although I believe this case should be decided as a question of state law, since the majority has reached the federal Constitutional ground, I believe it is necessary to dissent from its Constitutional determination. In my view, the most logical reading of the decisions of the Supreme Court of the United States compels us to reverse appellant’s conviction and grant him a new trial.
The majority agrees that appellant’s wife could not “waive” his right to be free from warrantless searches, but reasons that there was no “waiver” in this case because the wife had an independent right to exercise Control over the garages. This verbal sleight of hand completely misses the point of the Fourth Amendment protection which appellant claims. The majority concedes that only by use of a legal fiction could we find a waiver in this case. I find it equally fictitious to say that because appellant’s wife was willing to let police enter the garages, appellant could no *476longer argue that Ms constitutional rights had been violated when evidence obtained during the search was used against him at his trial. Appellant, not his wife, was on trial here. Certainly evidence found in the garages could be used at a trial against appellant’s wife, but I do not believe that appellant’s constitutional rights could be lost at the whim of another.*
Despite the majority’s insistence to the contrary, I am forced to conclude that it has made appellant’s constitutional rights subservient to his wife’s property rights. This is despite the command of the Supreme Court of the United States that “the Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S. Ct. 507, 511 (1967). Katz overruled the “trespass” test for determining the validity of electronic evesdropping. It had been held that unless a listening device penetrated a wall, as opposed to merely being attached to a wall, a Fourth Amendment claim was barred. Under the Court’s developing emphasis on protecting the rights of individuals, not property, the old rule became untenable.
*477Kata indicates that the proper focus in this case is whether the search was unconstitutionally intrusive as to appellant, not as to the building involved. Thus the fact that appellant’s wife could legally enter the building or admit others does not mean that the police could enter and search for appellant’s property without obtaining a search warrant. The majority relies on factors such as appellant’s wife’s ownership in furniture in the garages. I find it rather odd for appellant’s right to be free from a warrantless search to depend on whether his wife’s ottoman was on the premises. Under the majority’s theory of “rights and powers” I have to assume that if appellant and his wife held property as tenants by the entireties, she could consent to a search against her husband, but if the property was held in his name alone, she could not. I cannot see how the majority can insist that it is not hinging appellant’s constitutional rights to his wife’s property rights while emphasizing that it is holding the search valid because the wife had furniture on the premises. This is exactly the kind of distinction that Kata held to be unacceptable.
In my view, the majority has misread the import of Stoner v. California, 376 U.S. 483, 84 S. Ct. 889 (1964) and Chapman v. United States, 365 U.S. 610, 81 S. Ct. 776 (1961). The majority distinguishes Stoner by saying that its “basis . . . was that the police had no reasonable basis for believing that the clerk was really authorized by the defendant to consent to the search.” Of course the police in this case had no more basis to believe that appellant authorised his wife to consent to the search; rather clearly he did not. The fact that the wife had an interest in the property in no way indicates that she was permitted to let in the poliee to search for evidence which was to be used against appellant.
*478Even more important, Stoner explicitly rejects the arguments made by the majority that simply because the wife had certain rights in the premises, she was enabled to allow a police search and no question of waiver was thus presented. The Court in Stoner stated: “It is important to bear in mind that it was petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It was a right, therefore, which only the petitioner could waive by word or deed, either directly or through an agent.” 376 U.S. at 489, 84 S. Ct. at 893 (emphasis added). It could not be clearer that the Supreme Court regarded the question of consent by a third party as one of waiver, and that the Court rejected the theory that a waiver could be achieved by an unauthorized person, even if that person had some rights in the premises. The Court went on to explicitly reject the notion that the right of a person to enter upon certain premises carried with it the right to permit police to also so enter, stating that “when a person engages a hotel room he undoubtedly gives ‘implied or express permission’ to ‘such persons as maids, janitors or repairmen’ to enter his room ‘in the performance of their duties.’ . . . But the conduct of the night clerk and the police in the present case was of an entirely different order.” Id., quoting United States v. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (1951).
Stoner reaffirmed and elaborated on Chapman, which I believe the majority also has misread. The majority states that Chapman was based on the government’s failure “to establish the landlord’s right under Georgia law to enter. . . .” This is not entirely accurate. Although the Court did note that it could find no Georgia cases to support the government’s position, it als'o had to meet the government’s argument that the landlord had a general common law right to *479enter. To this contention, the Court replied, inter alia, that to allow this argument to prevail would leave tenants’ Fourth Amendment rights at the discretion of their landlords. The Court explicitly refused to utilize property law distinctions to decide the Constitutional question, a theory which is consistent with its subsequent decisions in Stoner and Katz.
There is no more reason to put an individual’s constitutional rights at the mercy of his wife than there is to allow his landlord to decide whether he will receive Fourth Amendment protection. Certainly the mere existence of a marriage does not create an agency agreement under which a spouse may consent to a search and seizure of the other spouse’s property. The folly of permitting a husband’s rights to turn on whether a wife has an independent right to enter the property is emphasized by the case in which the wife is working hand-in-glove with the police because she is angry at her husband. See Stein v. United States, 166 F. 2d 851 (9th Cir. 1948), cert. denied, 334 U.S. 844, 68 S. Ct. 1512 (1948). The correct focus in determining appellant’s rights can only be on appellant himself, and the proper inquiry is whether he had “a reasonable expectation of freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368, 88 S. Ct. 2120, 2123-24 (1968). Appellant certainly could reasonably have expected his wife to enter the garages, but this in no way indicates and is not even relevant to whether he reasonably expected to be free from police entry.
The Commonwealth argues here that the police were entitled to search without a warrant because they acted “reasonably.” However the trend of decisions of the Supreme Court of ¡the United States indicates that the Fourth Amendment must be considered “a pervasive rule requiring a warrant, subject only to narrow and *480specific exceptions.” Amsterdam, Segal and Miller, Trial Manual for the Defense of Criminal Cases, §229 at 2-166 (1967); see, e.g., Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 1879 (1968); Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 883 (1964); United States v. Jeffers, 342 U.S. 48, 52, 72 S. Ct. 93, 95 (1951); Commonwealth v. Cockfield, 431 Pa. 639, 246 A. 2d 381 (1968). In Terry, the Court explicitly stated that “the police must, whenever practicable, obtain advance judicial approval of searches and seizures, through the warrant procedure, ... or that in most instances failure to comply with the warrant requirement can only he excused by exigent circumstances....” 392 U.S. at 20, 88 S. Ct. at 1879 (emphasis added.) In the analogous Stoner and Chapman cases, supra, the Court clearly held that a warrant was necessary. There is no greater indication in this case that there were exigent circumstances or that obtaining a warrant was not practical. Saying that the officers acted “reasonably” in entering without a warrant upon obtaining the consent of the wife of appellant, but not appellant himself, assumes the answer.
In conclusion then I believe that the Commonwe¡alth should have been barred from introducing the evidence in question because of the unappealed-from prior determination of suppression, the state law bar preventing a wife from testifying against her husband, and because the consent of appellant’s wife was insufficient to permit a warrantless search for appellant’s property, and thus I dissent.
Mr. Justice O’Bbien joins in this dissent.Even if the wife could validly consent to a search for evidence that could be used against her husband, I assume that for that consent to be valid, she would need to have been informed that (1) absent her consent, the police would need a warrant, and (2) that evidence found therein could be used against her husband. There is no doubt that for the wife to waive her own freedom from a warrantless search would require “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023 (1938). I believe, despite the majority’s protestations to the contrary, that a consent-search must be based on a doctrine of waiver, see Stoner v. California, 376 U.S. 483, 489, 84 S. Ct. 889, 893 (1964); Commonwealth v. Gockley, 411 Pa. 437, 446, 192 A. 2d 693, 698 (1963), and even if a wife could waive her husband’s rights by consenting to a search, that waiver must be knowing and intelligently made. This would have to be affirmatively shown on the record, and I find no such showing here.