(dissenting):
I agree with the disposition made in the majority opinion of appellant’s assignments of error 1 and 2, as raised in this appeal.
I cannot agree with the ruling and disposition made in respect to assignment of error 3, i. e. the search and seizure issue * * * the taking of appellant’s “coat” from his place of abode by police officers under the factual circumstances related in the majority opinion.
As I view the facts in the majority opinion and those appearing in Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963); and Maxwell v. Stephens, 229 F.Supp. 205 (E.D.Ark.1964), I think it is readily apparent that the search of appellant’s place of abode and seizure of his “blue coat” were made under factual circumstances which reveal the same to be in violation of his Fourth Amendment rights made obligatory on the States by the Fourteenth Amendment to enforce.
I find fortification for that conclusion from the opinion and decision of the Court of Appeals of Kentucky, as made in Elmore v. Commonwealth, 282 Ky. 443, 138 S.W.2d 956 (1940), where that Court considered a factual situation in a rape case, which are on all fours with those appearing in the case at bar and ruled the seizure there made to be unlawful under federal constitutional standards.
In adjudging the validity of the search and seizure issue here, the starting point begins with appellant’s arrest. Hence I *339consider the constitutionality thereof must be measured by a consideration of the following facts:
When Police Officer Childress first went to appellant’s home he did so for the purpose of taking appellant into custody. At that time he told appellant, “he (Childress) wanted to talk to him downtown, and asked him to dress * * *” and “to put on (the) clothes he had on” previously that night, “which were wet.” Under compulsion of Childress’ command, appellant dressed. I find no reasonable ground for hesitancy in determining Maxwell was then placed under arrest, cf. State v. King, 84 N.J.Super. 297, 201 A.2d 758. Concededly, no search was then made by Officer Childress to seize appellant’s coat incident to his arrest.
That appellant did not voluntarily leave his home in company with Officer Childress is manifest, cf. Judd v. United States, 89 U.S.App.D.C. 64, 190 F.2d 649 (1951).
One or two hours thereafter, Capt. Crain and Officer Timms went to the Maxwell home, without a search warrant, and took possession of appellant’s “blue coat” under circumstances as related in the majority opinion. The conversation those two police officers then had with appellant’s mother does not raise a question of credibility. The only issue presented thereby is whether “consent” as claimed by the State was freely given to those officers to search the Maxwell home, and whether appellant’s mother had power of possession to release appellant’s personal belongings to the custody of such officers.
I do not consider the conversation appellant’s mother had with Capt. Crain and Officer Timms to have any probative value in making a determination of the validity of the search and seizure made by those officers. Mere acquiescence in the apparent authority of a police officer is not usually considered consent, cf. Dukes v. United States, 275 F. 142 (4 Cir., 1921); United States v. Marquette, 271 F. 120 (N.D.Cal.1920). What was then said by appellant’s mother “was but showing her respect for and obedience to the law and she was not consenting to the search regardless (of lack of a) search warrant.” Stroud v. Commonwealth, 295 Ky. 694, 175 S.W.2d 368, 370, citing Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654 (1921); and Elmore v. Commonwealth, supra. As the majority opinion notes, the validity of arrest and search and seizure here must be determined by reasonableness in light of the particular circumstances revealed. I consider the factual circumstances in the case at bar reveal “implied coercion.”
Admittedly, the coat that was seized was the personal property of appellant. Being under arrest at the time he was taken from the place of his abode, where the coat was then situate, the only reasonable inference is that he did not voluntarily place possession of his coat in his mother or anyone else. No one can waive his constitutional right to assert his right of possession thereof. The search here made was not incident to his arrest. To be legal, the seizure of appellant’s coat could only have been validly made without a search warrant at the time appellant was arrested by Officer Childress. His other clothing was so seized.
Respondent’s argument that this search and seizure was lawful because of possible destruction of evidence, and “inability to secure issuance of a search warrant,” is hollow, indeed. Appellant was then under arrest. There is no evidence that his mother had any knowledge that his coat might be material to any offense for which her son was arrested. The only possible inference I can make is that she first gleaned knowledge of the cause of his arrest from Capt. Crain or Officer Timms during the time the illegal search and seizure here considered was made. It is not contended that Childress told her why appellant was being taken “downtown”, cf. Foster v. United States (8 Cir., 1960), 281 F.2d 310.
I would reverse the judgment below.