(dissents).
Did the District Court err in finding, as a matter of fact, that defendant freely consented to the search of his home? If not, defendant’s motion to suppress the evidence thereby obtained was properly overruled. There are many cases holding that a voluntary consent by a defendant to such a search prevents him from claiming that his constitutional rights were invaded thereby. One of the cases is in the Seventh Circuit, Milyonico v. United States, 53 F.2d 937. Moreover, in that case, as in the case at bar, there was no evidence that coercion or mental force was used. In this case there is the evidence of government witnesses which, if believed, shows that the defendant did so consent. While there is evidence which tends to prove the opposite conclusion, it obviously was not believed by the trial judge. The reviewing court has no right to weigh the evidence and determine which witnesses told the truth. The trial judge, who had the duty of weighing the evidence, had an opportunity to observe the witnesses as they testified and so had opportunities for judging their credibility, which are not afforded to a reviewing court. His decision on a matter of fact, which was supported by evidence which he deemed credible, should not be set aside by this court even though from a reading of the bare record we might come to an opposite conclusion. In Roberts v. U. S., 5 Cir., 151 F.2d 664, 665, the court said:
“What we said in Hargrove v. United States, 5 Cir., 139 F.2d 1014, is appropriate here:
“ We are not triers of fact. The law, in its wisdom, does not authorize this court to substitute the reactions as to the facts which it gains from a perusal of the cold, printed type for those of the lower court which saw and heard the witnesses, observed their demeanor on the stand, and thus was placed in far better position to know the true and false than this court ;***.’ ”
One of the circumstances corroborating the testimony of government witnesses to the effect that the defendant had consented to the search is his statement made to his wife while the search was going on, “I thought you would have enough sense to get rid of that stuff.” According to government witnesses, defendant made that statement.1 These words from the mouth of the defendant himself strongly indicate that his belief, that his wife would dispose of the stolen property before the officers returned to his home, had lulled him into a sense of security that a search would prove fruitless and hence his ready consent thereto would weigh heavily in his favor as a circumstance indicating innocence. The fact that he was to find himself disappointed in the realization of his belief in no way detracts from the fact that of his own volition he did consent to the search. Grice v. U. S., 4 Cir., 146 F.2d 849.
It is no doubt true that the legality of the entry to defendant’s home on the occasion of the search must depend upon circumstances existing at the time of such entry. But the evidence shows that at the time defendant consented to the search, and up to and including the time of the entry into the home by the officers to make the search, the defendant believed that his wife “had enough sense to get rid of the stolen merchandise.” We must not confuse this statement by the defendant made during the search with a confession made during a search and as a result thereof. The statement of the defendant now under consideration is not a confession, and proof thereof was not introduced for the purpose of showing a confession. The statement by him *639was a circumstance which corroborated the government witnesses’ testimony that he had already agreed voluntarily and freely to a search of his home.
The majority opinion, after citing Johnson v. United States, 333 U.S. 10, 15, 68 S.Ct. 367, 92 L.Ed. 436, and Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663, says that these and other cases show that the courts have cast an increasingly critical eye upon the search by officers without a warrant, particularly where there was opportunity to obtain one. It is true that the Trupiano case followed the Johnson case. However, in the later case of United States v. Rabinowitz, 339 U.S. 56 at page 66, 70 S.Ct. 430 at page 435, 94 L.Ed. 653, the court said:
“To the extent that Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, requires a search warrant solely upon the basis of the practicability of procuring it rather than upon the reasonableness of the search after a lawful arrest, that case is overruled.”
The court then makes this significant observation:
“The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends upon the facts and circumstances — the total atmosphere of the case.”
In the case at bar, therefore, it is relevant to inquire whether the search was reasonable under the facts and circumstances. If it was, it is immaterial whether it was practicable to procure a search warrant; in that event none was needed. Going one step further, inasmuch as the District Court found as a fact that the defendant consented to the search (a finding which we as a reviewing court have no right to set aside), the search was reasonable and there was no reason, practical or otherwise, to procure a search warrant.
I would affirm.
. Defendant testified Ms words were, “I told you to give that stuff back to Randolph” (Haywood). His wife testified he said “I told you to tell Haywood to take these things out of here.”