(dissenting):
The principal opinion starts with the wrong premise and ends with the wrong conclusion. Whatever the accused’s interest in the automobile, from which some of the articles admitted in evidence were taken, it is clear that the police officers acted reasonably under the circumstances.
From the standpoint of title, notwithstanding payment by the accused to Mrs. Glover of her “equity” interest, she was still liable on the debt to the General Motors Acceptance Corporation ; and since she was still liable, she gave the accused neither the title nor the possession of the car, pending satisfaction of the entire obligation or a novation of her contract with GMAC. The stipulation of testimony indicates that “the title . . . [was to] be changed over” to the accused’s name only if he “could make arrangements with GMAC to assume the payments on the note for the balance due.” There is no doubt from the evidence that Mrs. Glover believed she was still the owner of the car. The accused may have had an equitable interest in the car by reason of part payment of the total purchase price, but that interest gave him no right to control the property or to assert any claim to possession.
By some strange alchemy, the board of review construed the accused’s request for the key to the car “to get some stuff out of” it, as being “presumably for the purpose of loading it with the property” seized. (Emphasis supplied.) The majority avoids that patently erroneous interpretation of the evidence by suggesting the accused’s request shows that at some earlier date he had somehow acquired permission to use the car for storage. If the accused had any such permission, the evidence of it appears nowhere in the record. Since he asserts a violation of his constitutional right against unreasonable search and seizure, the accused should be required to present at least a modicum of evidence that he was something other than a bare trespasser in leaving the articles in the car. Mrs. Glover’s testimony gives no hint whatever of any previous permission to the accused to use or exercise any authority over the car for any purpose. Nor is there one bit of evidence of such permission by Mr. and Mrs. Lawhorn, on whose property the car was kept while being repaired by Mr. Lawhorn, assuming either could confer such authority upon the accused. In any event, the Lawhorns’ reaction to the discovery of the articles in the ear is inconsistent with any inference that they gave him permission to use it for storage. On the contrary, they suspected his purpose and went immediately to check on what he had done in the car. What they saw branded as a lie the accused’s statement to them as to the purpose for which he wanted .the key.
The Constitution does not prohibit every search and seizure; it operates only against a search and seizure that is “unreasonable.” What is unreasonable depends upon the surrounding circumstances as they appear to an ordinary, conscientious police officer, and to the ordinary law-abiding citizen. Here, the police officer was authorized to remove articles left in the car without apparent permission of the owner of the car, and of the person in immediate possession of the vehicle. What is unreasonable about the officer’s taking possession of the articles in response to that authority? Why should he ask the accused for permission to remove the articles, when the accused had had no right to leave them in the car in the first place? No invitee, guest, or other person, who is granted permission to enter private premises, should complain if the owner *374of the premises also invites the police. Suppose a guest, without the knowledge or consent of the owner, conceals a gun on the premises; suppose, further, the owner discovers the weapon after the guest departs, and calls the police to take custody of it. May the guest object to the means by which the police obtained possession? Certainly not; and, in my opinion, that is the sum and substance of the situation here. Rees v Commonwealth, 203 Va 850, 127 SE2d 406 (1962), cert den, 372 US 964, 10 L ed 2d 128, 83 S Ct 1088 (1963), reh den, 373 US 947, 10 L ed 2d 702, 83 S Ct 1533 (1963).
If we have to disregard common sense and look only to legal precedent to support the officer’s action, then the facts in this case are well within the scope of the separate opinions sustaining the seizure in United States v Conlon, 14 USCMA 84, 33 CMR 296. There, the accused rented a garage on certain premises from the absentee owner. He placed a padlock on the door. Later, a house on the premises was rented to Mrs. Stichler by a real estate agent employed by the owner. Both the agent and Mrs. Stichler believed the garage was part of the rental estate. One day, Mrs. Stichler cut the padlock to enter the garage. A burglar alarm went off and frightened her. She telephoned the police and municipal police officers responded. What they saw in the garage prompted them to call the military authorities. Later, Mrs. Stich-ler gave the Air Police permission to remove from the garage various articles of property. This Court sustained the action of the Air Police in removing the property. The opinion in this case seeks to distinguish Conlon. The distinction eludes me.
It is said, first, that the action of the police in Conlon was proper, because Mrs. Stichler, although a trespasser, threatened to throw out the property and the policé could take it into possession for safekeeping. I did not agree with this reason for sustaining the police action, and I, therefore, separately set out my views. In my opinion, it was reasonable for the police to enter the premises on the invitation extended to them by the person who had apparent authority to invite them in. See United States v Barone, 330 F2d 543 (CA 2d Cir) (1964), cert den, 377 US 1004, 12 L ed 2d 1053, 84 S Ct 1940 (1964). Mrs. Glover in this case was not a trespasser. She had a legal, equitable, and commonsense right to invite the police to look into, and enter, the car. She may not have threatened to throw the articles out, but she certainly was willing that the police take charge of them.
The second distinction made between this case and Conlon is, that in Conlon the officers could see, from outside the garage, markings on the property which reflected Government ownership. We are not told, however, whether the officers could conclude from the markings that the property was stolen and, therefore, was contraband; or whether it was just Government property which had to be taken into possession for protection. If the latter is the justification, it falls within the scope of the first reason, that is, since Mrs. Stichler intended to “cast out and discard all items” within the garage, they had to be taken into custody for safekeeping. United States v Conlon, supra, at page 89. But if the markings showed the articles to be the fruits of a crime then, presumably, the seizure was reasonable because stolen property in plain view at a place at which the police are legitimately present is subject to seizure. United States v Burnside, 15 USCMA 326, 35 CMR 298. The latter situation is present in this case.
The evidence shows there had been a series of thefts in the accused’s division aboard the U. S. S. Saratoga. One of the personnel of the division, Hugh F. Rogers, had expected, through the mail, a package of movie film, but it did not arrive. Two members of the accused’s division were present at Lawhorn’s home when the accused appeared, to request the key to the car. The accused remained so long at the vehicle, that they, and the Lawhorns, suspected the announced purpose for which the key was obtained. Going to the car themselves, when the accused left, they immediately perceived the accused’s declared reason to be a lie. Instead of getting something from the *375car, he had obviously put things into it. Among the things they saw, from the outside of the car, were two tape recorders, a “regulation type” parachute bag, some clothing, and a parcel post package addressed to Rogers aboard the U. S. S. SARATOGA. That it was concluded these were stolen articles is manifest from the fact that Gerald A. Ayo, one of the guests, was directed to tell the division officer or the master-at-arms to “come out here . . . [to] confiscate the gear.” What was obvious to the Lawhorns, and to the accused’s shipmates, was at least probable to the police officer who took the goods into his possession, after he approached the car with the permission of the owner of the vehicle, and the permission of the owner of the land, on which the car was situated. See United States v Burnside, supra. According to either opinion in Conlon, therefore, the taking of possession of the stolen property was not unreasonable.
I also disagree with the majority on other grounds. One of the articles taken from the car was a sea bag. The bag was locked, and it was not opened until the accused told the law enforcement agents that they could cut off the lock. There is, of course, a vast difference between affirmative consent to a search and mere submission or acquiescence to the color of authority. That consent is present here as to the articles in the sea bag is manifest from the surrounding circumstances. The accused was informed of his rights under Article 31 of the Uniform Code, supra, 10 USC § 831, and explicitly advised he did not have to agree to the opening and search of his sea bag. He, thereupon, wrote out a statement in which he said, “I . . , give my consent to R. W. Kline MM1 ... to cut the lock on my sea bag. I understand that any article found in it that are [sic] not mine can be held as evidence against me.” The items found in this bag were, in my opinion, admissible because the search was predicated upon affirmative consent.
A similar situation obtains as to stolen articles found the next day in the trunk of the accused’s own car. Before this search was made, the accused was advised of his rights under Article 31, and informed he did not have to consent to the search. It was also shown that in a statement dealing with some of the stolen property, the accused said, “I gave my consent to have my car, that is a 1953 Ford, which is parked on a parking lot off the May-Port Naval Station, searched. I under stood that any items found that could be idinified [sic] as not being mine would be seased [sic] and held as evidence against me.” At trial, the president of the special court-martial ruled that the “accused had consented to the search of this” car. There is ample evidence to support his ruling.
Much more might be said about my differences with the majority, but I have said enough to indicate why I cannot agree to their blanket condemnation of the police officers’ conduct in this case.
I would answer the certified question in the negative, and I would return the record of trial to the board of review for further consideration.