(dissenting).
Preliminarily, of course, I agree with the holding of the majority that Eldridge had “standing” to seek suppression of the seized evidence under Rule 41(e), Federal Rules of Criminal Procedure. I do not agree with the conclusion that the Rule 41(e) motion to suppress the seized evidence was properly denied.
Like my brethren, I begin with the premise that the Fourth Amendment prohibits only unreasonable searches and seizures. It is well recognized, however, that, as a general rule, whether there is reasonable ground for the search is to be determined prior thereto by an impartial official authorized to issue warrants, not by a police officer who may be overzealous in the performance of his law enforcement duties. Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) (dictum); Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948); United States v. Lefkowitz, 285 U.S. 452, 464, 52 S.Ct. 420, 76 L.Ed. 877 (1932), *467A search is unreasonable within the meaning of the Fourth Amendment unless (1) authorized by a valid search warrant, (2) incident to a valid arrest, or (3) is made in other exceptional circumstances which dispense with the need for a search warrant. Williams v. United States, 105 U.S.App.D.C. 41, 263 F.2d 487, 488 (1959), and cases there cited.
In the case at bar the search of Eldridge’s car was not authorized by a valid search warrant though the Government does not rely upon the timeworn excuse that the police did not have the time or opportunity to procure a warrant. Rather, the police chief testified that he did secure a warrant to search the automobile based upon certain information that a gun had been seen in the car and guns had been stolen in that vicinity. But the warrant, if obtained and in the possession of the officer, was not executed and there is no contention that the search was made pursuant to a valid warrant. Furthermore, there was no arrest, lawful or otherwise, at the time of the search and consequently the authority for a search based upon United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), as incident to a lawful arrest is absent.
The Government seeks to validate the search and the use of the seized evidence against Eldridge by Nethercott’s consent to the search. Of course, it is conceded that where a defendant gives consent to a search of his own property (whether owned, rented or otherwise occupied or controlled), the need for a search warrant is obviated. An entirely different question is posed where the police rely upon the consent of one person to validate a search in the course of which evidence is seized and later used against another person having standing to seek suppression of the evidence but who did not consent to the search. The issue then is whether the person against whom the evidence is to be used in a criminal prosecution is to be bound by the consent of another to the search.
The majority opinion cites a number of cases1 in which the consent of one person has been held to be binding upon another, but in that opinion it is admitted that those cases are inapposite here.2 In each of those cases there was either a strong degree of privity between the person consenting to the search and the person against whom the seized evidence was used, or the latter had virtually no interest in the searched property. Such privity as existed between Nethercott and Eldridge was slight in degree and was not comparable to that existing between husband and wife, or partners, or a corporation and its office manager. Certainly it cannot be denied that Eldridge had considerably more interest in the searched property than did Nethercott. Considering the nature and degree of the relationship existing between Nethercott and Eldridge, the brief period during which Nethercott was permitted by Eldridge to use the car, and the limited purpose (to enable Nethercott to take his daughter for a drive) for which the car was left with Nethercott, it is my view that Eldridge did not intend to confer authority upon Nethercott to consent to a search of the car, nor is there any reasonable basis for the assumption that Nethercott had implied authority to consent to the search on behalf of Eldridge. It seems to me entirely unreasonable to infer, as does the majority, that Nethercott’s temporary possessory right of short duration, less than 24 hours and for a specific, restricted purpose, carries with it the implied authority to permit, on behalf of Eldridge, a police search without a warrant. An agent’s authority is derived, either expressly or by implication, from his principal. The majority opin*468ion, however, expresses a contrary idea that “agent” Nethercott had implied authority to act with respect to Eldridge’s automobile in any manner not expressly forbidden him by Eldridge as long as the car was returned to its owner by a certain hour. Customarily, a principal does not have to explicitly reserve unto himself the right to act solely on his own behalf unless his agent or a third person dealing with the agent might reasonably infer from a grant of authority that the principal was conferring that which he actually intended to reserve. As before indicated, I do not think authority to consent to a police search can be remotely “implied” from a grant of permission to use a car for such a short time and such a limited purpose.
The Fourth Amendment protects all, those suspected to be offenders as well as the innocent. In the case at bar, the record shows that the police chief told Nethercott the search was “just a routine checkup” and did not mention any of the matters urged by the Government as constituting probable cause for the search. Had Nethercott known that the police expected to find stolen goods in the car perhaps he would not have been so free in consenting to the search. The warrant purportedly obtained by the police chief was neither shown to Nethercott nor mentioned to him at the time of the search. It is not in the record, and we do not know who issued it or upon what information or whose sworn complaint it was issued. From the only available information it is questionable whether there was probable cause even for the issuance of a warrant, for a search warrant is not properly issued on the mere suspicion of some wrongdoing. Nathanson v. United States, 290 U.S. 41, 54 S.Ct. 11, 78 L.Ed. 159 (1933); see Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). There is no showing that either the police chief or Nethercott’s unfriendly mother-in-law had any ground to believe that the specific weapons in Eldridge’s car had been stolen and, of course, they were not stolen. Except for Eldridge, no one knew of the “handie-talkies” in the trunk until they were found there by the police chief in what he said was just a routine check-up. This search was an exploratory one, made solely in the hope of finding stolen guns in a particular automobile. But the search disclosed other property concerning which the officers had no information and which they seized upon the mere suspicion that the radios might be stolen. “There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.” Go-Bart Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 158, 75 L.Ed. 374. The record does not reveal any “exceptional circumstances” to justify this search and seizure.
I think the District Court erred in denying the motion to suppress.
. Footnotes 3 through 7.
. My colleagues apparently rely to some extent on Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), and Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960), while at the same time conceding that the cases are factually inapposite. I do not think the inferences drawn by the majority from those two decisions are proper and certainly they are not compelled.