(dissenting):
I dissent.
The shield of the Fourth Amendment of the Constitution is, indeed, manu*90factured of the sheerest gossamer if it cannot repel an invasion of the right to be free from unreasonable searches and seizures such as that depicted in this record. I am firmly convinced that our forefathers — their ears ringing with the memory of Wilkes, the North Briton, and the infamous Writs of Assistance — built more strongly. The sort of search involved here is in violation of the Constitution. Absent a lawful apprehension, there cannot be a search of real property upon a showing of probable cause alone. In the language of the Supreme Court:
“While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein. . . . The protecion of the 4th Amendment extends to all equally,— to those justly suspected or accused, as well as to the innocent. The search of a private dwelling without a warrant is, in itself, unreasonable and abhorrent to our laws. . . . Save in certain cases as incident to arrest, there is no sanction in the decisions of the courts, Federal or state, for the search of a private dwelling house without a warrant. Absence of any judicial approval is persuasive authority that it is unlawful. . . . Belief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” [Agnello v United States, 269 US 20, 32, 70 L ed 145, 46 S Ct 4 (1925).]
Clearly, one’s privately rented garage is considered to be protected from searches and seizures in the same manner as one’s actual home “without regard to whether . . . [it] constituted part of the private dwelling.” Taylor v United States, 286 US 1, 76 L ed 951, 52 S Ct 466 (1932). Accordingly, I am of the view that my brothers are wrong in their answer to the certified issue, and I shall hereinafter point out wherein I believe their reasoning goes astray.
The facts are as related in the principal opinion. Briefly restated, they indicate that a Mrs. Stichler, under the honest impression she was entitled to the possession of the garage, demised in actuality to the accused, made a forcible entry into it. When a burglar alarm sounded, responding police understandably entered and disconnected it. They in turn summoned air police, who, without entering upon the premises at all, were able to view numerous items of Government property, as did the agent of the Office of Special Investigations who ultimately arrived on the scene.
All of this, however, is merely frosting on the cake, for none of these plainly visible items are involved in the case before us. Rather, the allegedly stolen property admitted in evidence was obtained by the agent through entry into the garage, without the consent or presence of the person entitled to its possession, and search of various boxes and barrels belonging to him. It is this ultimate search and seizure with which we are concerned, and it is on its legality that the propriety of the board of review’s decision depends.
Undoubtedly, Mrs. Stichler, a trespasser, had no connection with either the local or Federal authorities. Had she examined the contents of the boxes and barrels and turned the items in question over to the Federal officers, under the present state of the law, there could be no question of their admissibility. As Burdeau v McDowell, 256 US 465, 65 L ed 1048, 41 S Ct 574 (1921), notes, the protection of the Fourth Amendment applies “to governmental action ... as a restraint upon the activities of sovereign authority.” But, if its principle is to be applied, the police must not become involved in either the search or the seizure of the property. “The crux of . . . [the] doctrine is that a search is a search by a Federal official if he had a hand in it; it is not a search by a federal official if evidence ... is turned over to the federal authorities on a silver platter.” Lustig v United *91States, 338 US 74, 78, 93 L ed 1819, 69 S Ct 1372 (1949).
As the record here shows, Mrs. Stich-ler did no searching. The police came when the burglar alarm sounded and notified Federal authorities, who themselves came to the scene, conducted the search, and seized the goods in question. And, in view of the alarm’s clangor, one can hardly say, as does the concurring opinion, that the garage was “seemingly abandoned.” Thus, as in the Lustig case, in which a Federal agent merely assisted local officers in evaluating evidence which the latter had uncovered, this became a Federal search to which the Burdeau rule is inapplicable. Mrs. Stichler was a trespasser, and her presence and assertion of dominion over accused’s garage could confer upon the officers no authority whatsoever to enter the garage and remove any items. As was noted in Byars v United States, 273 US 28, 71 L ed 520, 47 S Ct 248 (1927), at page 33:
“We do not question the right of the federal government to avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure. To hold the contrary would be to. disregard the plain spirit and purpose of the constitutional prohibitions intended to secure the people against unauthorized official action. The 4th Amendment was adopted in view of long misuse of power in the matter of searches and seizures both in England and the colonies; and the assurance against any revival of it, so carefully embodied in the fundamental law, is not to be impaired by judicial sanction of equivocal methods, which, regarded superficially, may seem to escape the challenge of illegality but which, in reality, strike at the substance of the constitutional right.”
See also Gambino v United States, 275 US 310, 72 L ed 293, 48 S Ct 137 (1927), wherein responsibility for an illegal search conducted by volunteers was imputed to the United States when its sole purpose was to obtain evidence for a Federal prosecution, and Johnson v United States, 333 US 10, 92 L ed 436, 68 S Ct 367 (1948).
Nor does United States v Rabinowitz, 339 US 56, 94 L ed 653, 70 S Ct 430 (1950), in any way support my brothers’ conclusion that this search of real property was reasonable and not in violation of the Constitution. The language upon which they rely is lifted bodily from its frame of reference and thrust forward as being meaningful in itself. Far from standing for the proposition for which it is cited, the case involves only the question whether it was necessary for Federal officers to secure a warrant in order to conduct a search incident to a lawful arrest.
In that case, agents arrested the defendant in his office under the authority of a lawful warrant. Incident to that arrest, they searched his desk, safe, and filing cabinets, finding the evidence ultimately used against him. Reviewing its decisions, the Supreme Court pointed out that the right so to search premises incident to a lawful arrest had long been settled. Specifically overruling Trupiano v United States, 334 US 699, 92 L ed 1663, 68 S Ct 1229 (1948), the Court held that a search warrant need not “be procured when ‘practicable’ in a case of search incident to arrest.” United States v Rabinowitz, supra, at page 64. And I specifically invite attention to the portion of the quotation from that case which the majority omit in their opinion:
“. . . Reasonableness is in the first instance for the District Court to determine. We think the District Court’s conclusion that here the search and seizure were reasonable should be sustained because: (1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered *92stamps was a crime, just as it is a crime to possess burglars’ tools, lottery tickets or counterfeit money.” [Emphasis supplied.] [United States v Rabinowitz, supra, at page 63.]
Moreover, the Court went on in Rabinowitz, supra, to distinguish Taylor v United States, supra, on the basis that it should be restricted “to the familiar situation there presented,” i. e., that “ ‘No one was within the place [searched] and there was no reason to think otherwise.’ ” It was declared of Taylor, supra, at page 64:
. . Lest the holding that such a search of an unoccupied building was unreasonable be thought to have broader significance the Court carefully stated in conclusion: ‘This record does not make it necessary for us to discuss the rule in respect of searches in connection with an arrest. No offender was in the garage; the action of the agents had no immediate connection with an arrest. The purpose was to secure evidence to support some future arrest.’ ” [Emphasis supplied.]
The Rabinowitz case, therefore, does not stand for the proposition for which it is cited, i.e., that a dwelling or other building may be searched and items therein seized for use in evidence if such action be based upon probable cause. To the contrary, it reaffirms the court’s earlier holding in Taylor, supra, that there cannot be any search of a garage without a warrant, no matter what degree of probable cause exists. Indeed, insofar as I have been able to determine, the Supreme Court has never abandoned its insistence that, except in the case of searches incident to an arrest, there can be no unwarranted search and seizure of private premises. Taylor v United States, supra; Johnson v United States, supra; Ker v California, 374 US 23, 10 L ed 2d 726, 83 S Ct 1623, decided June 10, 1963.
Nor is Rabinowitz, supra, the “most recent expression of the Supreme Court in this particular area.” In Chapman v United States, 365 US 610, 5 L ed 2d 828, 81 S Ct 776 (1961), the Court pointedly reaffirmed the vitality of Taylor v United States, supra, and Agnello v United States, supra, under facts strikingly similar to those before us. In that case, a landlord went to a home in order to invite a new tenant to attend church. There was no response to his knock, and he noticed a strong odor of mash. He summoned local police who, with his permission, entered the premises through a window and discovered a large still. Federal officers were called and, while they were en route, defendant returned to his “home” and was arrested by the local officers. The Federal men arrived, took custody of the defendant, obtained samples of mash from the house, photographed the still, and destroyed both it and its contents.
Reiterating that “ ‘one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein,’ ” the Court held the search clearly illegal under Federal standards. Chapman v United States, supra, at page 613. It declared, at page 615:
“We think it must be concluded here . . . that ‘If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of a case in which it should be required.’ ”
The reasoning of the Court was that the landlord had no right to authorize the officers to enter upon the premises and examine its interior. A fortiori, in this case, Mrs. Stichler, who, despite her honest belief to the contrary, had no interest in the garage at all, could not give to the officers the slightest authority to search the barrels and boxes stored therein or to seize their contents.
Thus, the Constitution has always been construed to safeguard the citizen against what is held, as a matter of law, to be unreasonable search, regardless of how sound a foundation the police may have had for their quest. For two hundred years, the judiciary has pointed out that probable cause cannot, in and of itself, make a search reasonable, as:
. . It is not fit, that the receiving or the judging of the information *93should be left to the discretion of the officer. The Magistrate ought to judge, and give certain directions to the officer. This is so, upon reason and convenience.” [Money v Leach, 3 Burr, 1742, 97 Eng Rep 1075 (1765).]
This is the nub of my disagreement with my brothers. It is their position that police action, based upon probable cause alone, constitutes a reasonable search. All of the authorities are to the contrary, and I cannot join with them in thus lightly depriving the accused of his constitutional protection. Undoubtedly, there was shown in this record probable cause to search the garage, but that serves only to authorize the issuance of a warrant by a proper magistrate. It cannot be used by the officers as a substitute for the necessary writ. Agnello v United States, supra; McDonald v United States, 335 US 451, 93 L ed 153, 69 S Ct 191 (1948). Indeed, why should officers ever subject themselves to the descriptive limitations of a search warrant when, as in this case, they may search without restriction upon probable cause alone! I, therefore, record my fundamental disagreement with my brothers’ position.
I would answer the certified question in the affirmative, and affirm the decision of the board of review.