(dissenting).
This case lies in a field in which the questions are close, and so I hesitate to express dissent from the view of a majority of the court. But I cannot escape the conclusion that this judgment should be affirmed and that the ruling is important in the enforcement of the narcotic laws.
The case has two distinctive features which are critical: (1) The premises searched were not Jeffers’s. (2) The property seized consisted of narcotic drugs without stamps. The question posed therefore is: Can a person claiming ownership of unstamped narcotics seized in another person’s apartment by officers without a warrant prevent the use of such narcotics as evidence against him (the claimant) ? The court says “Yes”. I think “No”. There are two basic differences between us, the first as to the search and the second as to the seizure. The court says that the search was in violation of the Constitution. I say that it was not in violation of the Constitution so far as Jeffers was concerned. As to the seizure, the court says that it too was in violation of the Constitution because it was incidental to an unconstitutional search and also because the seizure itself was of property of Jeffers and was made without a warrant. I say, as I have indicated, that the search was not unconstitutional as to Jeffers and, further, that, neither his premises nor his person being invaded, he had no protected property right in the unstamped narcotics, they being in-strumentalities of 'crime and prima facie intended for such use and prima facie being so used.
*506The court says that the search of the apartment was in violation of the Fourth Amendment. But, as I understand the law on the subject, the unconstitutionality of a search involves a particular person. The constitutional protection is of a person, not of a place. “The right of the people * *” the Amendment says. And fundamentally that is so. The Constitution created no rights. The Amendment was to protectrights already possessed by the people. Those rights are personal. The one protected by the Fourth Amendment is a person’s right of privacy. So a search of a place without a warrant is not constitutionally invalid in itself and as to all persons whomsoever; it is constitutionally invalid only as to the person whose right to the place is invaded. Thus, in the Gibson case,1 the apartment of one O’Kelley was illegally searched and a quantity of marihuana seized. He and Gibson were arrested. A motion to suppress that evidence was granted, on appeal, as to O’Kelley but denied as to Gibson. Chief Justice Groner, writing for this court, said: “What has been said in relation to the illegality of the seizure from the New Jersey Avenue apartment is not, however, controlling in the case of appellant Gibson. It was not his home that was invaded and there was no molestation of his person on that occasion. In his case there was no violation of the IVth Amendment, and the settled doctrine is that objection to evidence obtained in violation of the prohibitions of that Amendment may be raised only by one who claims ownership in or right to possession of the premises searched or the property seized, and does not extend to the relief of a co-defendant.” 2
In Ingram v. United States3 an apartment was searched and narcotics seized without a warrant. The tenant, Joseph Woods, and appellant Ingram were indicted jointly. Appellant moved to suppress, the trial court denied the motion, and the appellate court affirmed. Judge Garrecht wrote: “If the search and seizure constituted an invasion of the constitutional rights of Joseph Woods, it did not therefore invade the constitutional rights of appellant, the privacy of whose home or place of abode was not violated, nor can he be heard to complain that the rights of his co-defendant had been invaded, nor can he invoke the benefits of the Fourth and Fifth Amendments in behalf of his co-defendant.”4
In Lagow v. United States5 an order which forbade, so far as a corporation was concerned, the use as evidence of corporate records illegally seized, but which permitted such use as against the sole stockholder, was affirmed. The Second Circuit (L. Hand, Chase and Frank, Circuit Judges) in a per curiam opinion said, succinctly, that the sole stockholder “may not vicariously take on the privilege of the corporation under the Fourth Amendment t documents which he could have protected from seizure, if they had been his own, may be used against him, no matter how they were obtained from the corporation. Its-wrongs are not his Wrongs; its immunity is not his immunity.”6
In Connolly v. Medalie7 a brewery was searched without a warrant, and property found thereon was seized. Employees werearrested. An order suppressing the use of the evidence was reversed upon appeal. The court cited sixteen cases, in every Circuit Court of Appeals except the First, in Which the ruling as to suppression was “always against defendants whose rights had not been invaded.” The court held that the rights of the owner but not those of his employees had been violated by the unconstitutional search and seizure. In Bush*507ouse v. United States8 the residences of Peter and John Bushouse and George Phillips were searched in violation of the Constitution. Notebooks, correspondence and records were seized. The proprietors and two others named Dunn and Weisenberg9 were arrested. Motions to suppress the seized evidence having been denied, on appeal the convictions were reversed as to the Bushouses and Phillips but affirmed as to Dunn and Weisenberg. The court said: “What we have said, however, does not .apply to the appellants Joseph Dunn and Francis Weisenberg. No constitutional right of these defendants was violated. The introduction of the evidence in question gave to them no right to object. As to them there was no prejudicial error.”10
Grainger v. United States11 concerned not co-defendants only but all the defendants. A cabin was searched without a warrant. No one of the persons arrested had title to or right of possession of the cabin. The court affirmed the denial of a motion to suppress the evidence seized. After discussing several cases- Judge Dobie •said: “It would thus seem that the accused, seeking to exclude the evidence under the Fourth Amendment, has the burden of ■showing that he can claim the privileges afforded by the Amendment by virtue of his ownership, title or possession of the premises searched.” 12
It is true that Judge Dobie said that the •court’s decision was “simply that neither Grainger nor Buff kin nor Weeks was in a position to claim these rights.” 13 But it is clear enough from -his discussion that the inability to claim the rights was not a mere procedural lack of standing to object but was a substantive lack of rights.
In Holt v. United States14 a truck loaded with liquor was searched without a warrant and the liquor seized. An employee of the owner, not in possession of the truck, was indicted. A motion to suppress the seized evidence was denied. On appeal the denial was affirmed. The court passed the question whether the search of the truck was constitutionally made, saying: “Be that as it may, it is clear, we think, that no right of the defendant was violated. * * * one malefactor may not claim the right to escape by reason of the fact that the constitutional rights of another were violated.”15 The court cited thirteen cases in support of its position.
In United States v. De Vasto16 there were arrests for conspiracy to violate the Prohibition Act. Several days thereafter a safe in an office building was searched without a warrant and certain corporate records were seized. Officers and employees of the corporation moved to suppress. The appellate court said, “But it has been repeatedly held that the rights declared by the Fourth Amendment are personal and can only be asserted by him whose rights are violated.” 17
In In re Dooley18 articles were seized in an illegal search and the court enjoined their use in any prosecution of the corporate owner or others in possession of the premises. Appellants sought to enlarge the order so as to suppress not merely as against them but as against all persons. Judge Augustus Hand said for the court: “Their contention is that the policy of the Fourth and Fifth Amendments to the Constitution precludes the use of illegally seized property as evidence against anyone whatever. But it has been held by an impressive weight of authority that the objection to an unlawful search and seizure is personal and cannot be successfully raised by third parties.”19
*508There are many other cases in the Circuit Courts of Appeals to the same effect.
The philosophical nub of this part of the controversy is depicted in Goldstein v. United States.20 As I understand the matter, the 'federal Courts of Appeals are unanimous in the view that the rights protected by the Fourth Amendment are personal and that the exclusionary rule is merely 'remedial for the enforcement of those rights and is not an equitable principle designed to prevent the Government from profiting by its own wrong; and the available indications are that the Supreme Court is of the same view. In the Gold-stein case the Court held that a person not a party to an intercepted telephone message could not object to its use outside the courtroom to induce testimony, and referred to the numerous and unanimous lower court decisions denying the right of objection to one not the victim of an unconstitutional searoh and seizure. The dissenting justices referred specifically to the matter and found those decisions “hard to square” with Silverthorne Lumber Co. v. United States 21 and in a footnote22 said that those rulings would “allow the Government to profit by its wrong”. Likewise the same doctrine seems to me to be implicit in Wolf v. Colorado.23 In fact the Court there remarked : “Indeed, the exclusion of evidence is a remedy which directly serves only to protect those upon whose person or premises something incriminating has been found.”24 Judge Learned Hand spelled it out in Connolly v. Medalie, supra. He said: “The power to suppress the use of evidence unlawfully obtained is a corollary of the power to regain it. The prosecution is forbidden to profit by a wrong whose remedies are inadequate for the injury, unless they include protection against any use of the property seized as a means to conviction. The relief being thus remedial, the evidence has never been thought incompetent against anyone but the victim. Conceivably it might have been; it might have been ¡held that the prosecution, though not disqualified from taking advantage of another’s wrong (Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048, 13 A.L.R. 1159), should not profit in any wise by its own. But that would obviously introduce other than remedial considerations; the doctrine would then be like that of equity which denies its remedies to one who is not himself scathless.”25
Mention must be made of Agnello v. United States26 in this connection. There is confusion as to the precise ruling in respect to the defendants other than Agnello. The Court said that “The introduction of the evidence of the search and seizure did not transgress their constitutional rights.” But in the next sentences the Court indicated that the disputed evidence was neither offered nor admitted in respect to these co-defendants. That indication is somewhat clouded by the last paragraph of the opinion. Examination of the bound volume of the 'record, etc., in that case reveals that in their petition for rehearing petitioners flatly asserted that “The can of cocaine was received in evidence against all the defendants”, and the Government in its brief (page 19) clearly so intimated. My reading of the Agnello case is that the Court meant exactly what it said in the words above-quoted from the opinion.
In the case at bar I conclude that, since the apartment was not Jeffers’s, either in title or in right of possession, its invasion was in violation of no right of his and so was not unconstitutional so far as he was concerned. As the case involves nobody but Jeffers, the search of the apartment cannot be treated as unconstitutional.
That brings us to the seizure. The search being not improper as to Jeffers, was the seizure of the unstamped narcotics an unreasonable seizure as to* him? The statute *509says that there shall be no property rights in unstamped narcotics,27 and that the lack of stamps is prima facie proof that the goods are intended for illegal use.28 An officer, making a search that is proper so far as the alleged owner is concerned, sees a package of unstamped narcotics. The alleged owner is not present. May the. officer seize the narcotics ?
In Harris v. United States29 the Court said flatly: “If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated.”
The Court pointed out that there is a fundamental difference between contraband and property which is merely evidentiary, citing cases. To the same effect is the statement in United States v. Lefkowitz.30
In United States v. Stowell31 the Court said: “By the settled doctrine of this court, whenever a statute enacts that upon the commission of a certain act specific property used in or connected with that act shall be forfeited, the forfeiture takes effect immediately upon the commission of the act; the right to the property then vests in the United States, although their title is not perfected until judicial condemnation; the forfeiture constitutes a statutory transfer of the right to the United States at the time the offense is committed, and the condemnation, when obtained, relates back to that time, and avoids all intermediate sales and alienation, even to purchasers in good faith.”
We are now considering the act of seizure, and that alone. The motion to suppress is based, apart from the search, upon the act of seizure itself. The property has not been destroyed, and we do not consider the power to destroy. The officer, says appellant, had no power to seize the narcotics. For that one reason he says it cannot be used as evidence.
The decision upon this part of the case depends upon the nature of the property seized. It is perfectly well settled that the Government, in the exercise of its police power, may seize, and even summarily destroy, some property. It is established that the state may summarily seize, without warrant, instrumentalities of crime and property intended for unlawful use.32 That rule is upon the basis of preventive justice.
What is the property in the case at bar? Unstamped narcotics are instrumentalities of crime. And they are prima facie, by statute, intended to be used to violate the law. The physical absence of stamps was prima facie evidence of the commission of a crime. They are clearly, in my opinion, within the police power of summary seizure.
It is true that if the opinion in Trupiano v. United States33 had remained in force it might have been necessary for law officers to secure warrants to seize even instrumentalities of crime, if time permitted, but I understand that the decision in United States v. Rabinowitz34 has restored the law upon that subject to its former condition, and that the rule now is that circumstances determine the reasonableness vel non of a *510seizure. In a footnote35 in Rabinowitz the Court referred to objects utilized in perpetrating a crime, and said: “There is no dispute that the objects searched for and seized here, having been utilized in perpetrating a crime for which arrest was made, were properly subject to seizure. Such objects are to be distinguished from merely evidentiary materials, which may not be taken into custody. United States v. Lefkowitz, supra [285 U.S.] at 464-466 [52 S.Ct. 420, 423, 76 L.Ed. 877]; Gouled v. United States, 255 U.S. 298, 309-311 [41 S.Ct. 261, 265, 65 L.Ed. 647], This is a distinction of importance, for “limitations upon the fruit to be gathered tend to limit the quest itself. * * * ’ United States v. Poller [2 Cir.], 43 F.2d 911, 914.” That footnote points up the precise critical fact in respect to the seizure in the case at bar.36 The mere existence of the narcotics without stamps was prima facie evidence of an intention to use them to. perpetrate a crime. There, on a shelf, before the officer’s eyes, was the instrumentality of a crime. In fact, a crime was being committed by somebody in the officer’s presence, if constructive possession is, like actual possession, a crime. At any rate, these narcotics were not merely evidentiary; they were the actual instrumentalities of the crime. My view is that the officer could seize them when he saw them, even if he did not have a warrant.
Of course, the appellant might conceivably establish that these unstamped narcotics were intended for lawful use. Full opportunity to prove such a contention was afforded him upon the hearing on his motion to suppress. The statutory rule as to illegality is not conclusive; it is prima facie. The officers did not destroy the narcotics. They merely seized them. Appellant did not move to suppress or to regain the property upon the ground that it was intended for lawful use and, therefore, was merely evidentiary and not per se contraband. His motion was based solely upon the officer’s power to seize as an original incident of power. But, since prima facie these narcotics existed in violation of law, prima facie, property rights did not exist in them. Any right of Jeffers to possession of them rested upon exceedingly narrow exceptions to that rule of nullity. Under the circumstances it was for him to prove the exception. Due process is satisfied by the opportunity to make that proof. This seems to be the doctrine of Samuels v. McCurdy,37 People v. Diamond,38 Rosso v. United States,39 NG Sing v. United States,40 Goode v. United States,41 Wong Lung Sing v. United States,42 and such cases. These rules as to goods which are prima facie the instrumentalities of crime are precisely opposite to those applicable to merely evidentiary material.
My conclusion on this point is that, absent unconstitutional search, an officer has power to seize unstamped narcotics under his summary police power to seize instru-mentalities of crime and property intended to be used to violate the law, the statutory presumption of illegal use being enough to justify the seizure, even if, perhaps, not enough to justify summary destruction o-r to prevent return of the property if upon the hearing the legality of the possession be established.
A negative word is necessary. If a search is unconstitutional, any seizure, even of contraband, incidental to it is illegal. The incidental seizure takes on the character of the search. Likewise, if the seizure be incidental to an illegal arrest, it is illegal, taking on the character of the arrest to which it is incidental. In the case before us, the search was, 'for purposes of the case, *511not unconstitutional, there was no arrest, and the property in its then obvious physical condition was prima facie evidence of an intended illegal use.
My conclusion is that upon a search of an apartment without a warrant officers may seize contraband goods claimed by others than the owner or possessor of the premises, and that such goods are admissible in evidence against such other persons, so far as the Fourth Amendment is concerned. That is precisely what I understand the cases to hold. In other words, where contraband goods are concerned the only protection afforded by the Fourth Amendment is to a person and to premises, the protection in the latter instance being afforded to the owner or possessor only. My view is that a seizure of unstamped narcotics is not unreasonable, so long as no premises and no person are illegally invaded. Apart from his premises and his person, no individual has a protected property right in unstamped narcotics.
Turning now to the opinion of the court in the case at bar, I have no disagreement with its basic general propositions. I agree that objection may be made by one who owns property seized,, as well as by one who owns or possesses the premises searched. But when the court states the applicable rule it seems to me that it begs the question in this case. It says that one who objects to the use in evidence “of property he owns”, which has been seized in “an unlawful search”, is entitled to its exclusion. The questions posed in the case before us are, to adopt the quoted phrase: (1) Are unstamped narcotics “property he owns” within the meaning of the rule, and (2) is a search of A’s apartment “an unlawful search” as to B who is not its owner or tenant?
The court refers to a claim of ownership, but I do not understand it to mean that a mere claim of ownership entitles a person to the exclusion of evidence. To be sure, a failure to claim ownership or a denial of ownership will defeat a motion to exclude.43 But the soundness of those affirmative propositions does not establish their converse. Actuality of interest and not mere claim of interest must be the premise for a valid assertion of constitutional invasion.
The Pielow case,44 cited by the court, is not pertinent, because the property, merely evidentiary and not contraband, was in the possession of a bailee of the accused. In the case at bar the property was contraband and, moreover, its presence in the apartment of the aunts was, according to their testimony, without their permission, against their wishes, and so a trespass.
The court attempts to avoid the Gibson case, supra, by pointing out that the narcotics were there seized as an incident to an arrest 'for the commission of a crime in the presence of an officer, i. e., possession on Gibson’s person of one narcotic cigarette. But, if the entry into the apartment had been illegal as to Gibson, as it was to O’Kelley, the tenant, the arrest would have been unlawful and the seizure therefore unlawful. This court held the entry illegal as to the tenant but legal as to Gibson, and so the arrest was legal and the incidental seizure therefore legal. I do not grasp the significance of the distinction between that case and this one. If Jeffers had been present his arrest in the apartment would have been legal, even though an arrest of his aunts there would not have been. It would seem to me that, if a seizure of contraband on a man’s person or in his presence be not an unreasonable invasion of his privacy, a fortiori its seizure in his physical absence would not be an unreasonable invasion.45 On authority we find the sentence we have quoted above from the opin*512ion of the Supreme Court in the Wolf case, supra. That sentence seems to say that if the incriminating evidence be not found on the objector’s premises or person he cannot successfully object. And that is the precise opposite of the thesis upon which this court now attempts to avoid the Gibson case, supra.
The provision in the statute to which the court refers and which provides that a search warrant may issue for contraband goods, was inserted, in my view, so as to make sure that although these goods were not legally property they could be searched for. A search warrant would be required as against the owner or possessor of the premises upon which the contraband was located.
I do not see how an individual’s rights can be invaded by Government seizure of contraband goods, of the nature of unstamped narcotics, not on the individual’s person or premises. I agree with the trial court
. Gibson v. United States, 1945, 80 U.S.App.D.C. 81, 149 F.2d 381, certiorari denied sub nom. O’Kelley v. United States, 1945, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429.
. Id., 80 U.S.App.D.C. at page 84, 149 F.2d at page 384.
. 9 Cir., 1940, 113 F.2d 966.
. Id., 113 F.2d at page 967.
. 2 Cir., 1946, 159 F.2d 245, certiorari denied, 1947, 331 U.S. 858, 67 S.Ct. 1750, 91 L.Ed. 1865.
. Id., 159 F.2d at page 246.
. 2 Cir., 1932, 58 F.2d 629, 630.
. 6 Cir., 1933, 67 F.2d 843.
. The circumstances in respect to a sixth defendant, McDonald, are not recited in the opinion.
. Supra note 8, 67 F.2d at page 844.
. 4 Cir., 1946, 158 F.2d 236.
. Id., 158 F.2d at pages 238-239.
. Id., 158 F.2d at page 237.
. 6 Cir., 1930, 42 F.2d 103.
. Id., 42 F.2d at page 105.
. 2 Cir., 1931, 52 F.2d 26, 78 A.L.R. 336, certiorari denied, 1931, 284 U.S. 678, 52 S.Ct. 138, 76 L.Ed. 573.
. Id., 52 F.2d at page 29.
. 2 Cir., 1931, 48 F.2d 121.
. Ibid.
. 1942, 316 U.S. 114, 62 S.Ct. 1000, 1007, 86 L.Ed. 1312.
. 1920, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319.
. Footnote 4, supra note 20, at 316 U.S. 127, 62 S.Ct. 1007.
. 1949, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.
. Id., at 338 U.S. 30, 69 S.Ct. 1362.
. Supra note 7, 58 F.2d at page 630.
. 1925, 269 U.S. 20, 46 S.Ct. 4, 7, 70 L.Ed. 145.
. 53 Stat. 362 (1939), 26 U.S.C.A. § 3116.
. 53 Stat. 271 (1939), 58 Stat. 721 (1944), 26 U.S.C.A. § 2553.
. 1947, 331 U.S. 145, 155, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399.
. 1932, 285 U.S. 452, 466, 52 S.Ct. 420, 76 L.Ed. 877.
. 1890, 133 U.S. 1, 17, 10 S.Ct. 244, 277, 33 L.Ed. 555, 559.
. Milam v. United States, 4 Cir., 1924, 296 P. 629, 631, certiorari denied, 1924, 265 U.S. 586, 44 S.Ct. 460, 68 L.Ed. 1192; Vachina v. United States, 9 Cir., 1922, 283 F. 35, 36; Board of Police Commissioners v. Wagner, 1901, 93 Md. 182, 48 A. 455, 52 L.R.A. 775; State v. Four Jugs of Intoxicating Liquor, 1886, 58 Vt. 140, 2 A. 586. See the discussion and cases cited in 12 Am.Jur., Constitutional Law §§ 676-678.
. 1948, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663.
. 1950, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653.
. Footnote 6, id. at 339 U.S. 64, 70 S.Ct. 434.
. Cases on this point usually trace back to Commonwealth v. Dana, Mass.1841, 2 Metc. 329. To the same effect is Davis v. United States, 1946, 328 U.S. 582, 590, 66 S.Ct. 1256, 90 L.Ed. 1453.
. 1925, 267 U.S. 188, 45 S.Ct. 264, 69 L.Ed. 568.
. 1922, 233 N.Y. 130, 135 N.E. 200.
. 3 Cir., 1924, 1 F.2d 717.
. 9 Cir., 1925, 8 F.2d 919.
. 1945, 80 U.S.App.D.C. 67, 149 F.2d 377.
. 9 Cir., 1925, 3 F.2d 780.
. Shore v. United States, 1931, 60 App.D.C. 137, 140, 49 F.2d 519, 522, certiorari denied, 1931, 283 U.S. 865, 51 S.Ct. 656, 75 L.Ed. 1469.
. Pielow v. United States, 9 Cir., 1925, 8 F.2d 492.
. In the opinion in the Gibson case, from which we have quoted early in this opinion, the court referred to a person who claims ownership of the property seized, but did not refer to the fact, shown by the record, that the Government testimony was that Gibson did own the cigarettes which he sought to suppress. That fact put Gibson in the same situation as is Jeffers.