(dissenting).
By reason of the remand to us of this case by the Supreme Court with the direction that it be reconsidered with reference to the arrest of a third person, we must assume that the Court regarded the appellant’s relationship to the premises searched to be such that he had standing to object to the introduction into evidence of objects seized. The evidence with which we are here concerned was seized during a search of these premises. For want of a better term to refer to the premises in relation to appellant, they will be referred to as “protected.” The constitutional right of appellant as to the protected premises is of course a personal one which he may waive, but no contention is made that he did so. The government argues that instead he lost the right by an event over which *335appellant had no control, and which took place on the premises in his absence and apparently without his knowledge. This event was the arrest of another person, Henry Murray, brother of appellant. A search incident thereto was made which thoroughly covered the protected premises and resulted in the seizure of the evidence in question. This arrest at the particular place was a matter of chance determined by the whereabouts of the person arrested at the time of his arrest.
The arrest of this Henry Murray on the premises may have been with probable cause, the search incident to such arrest, and the search proper as to its extent, but the constitutional rights of appellant should not stand or fall upon such circumstances unrelated to him. They should not depend upon whether the place of arrest of Henry Murray was on the premises or elsewhere, and whether the arrest was legal or illegal. It is even questionable whether appellant has standing to assert that his brother’s rights were violated by an illegal arrest.
The government’s argument is that once evidence or the fruit of a crime, as here, has been seized in a manner which is legal as to any one person it is thereby legally seized as to everyone regardless of their relationship to the premises or events. This is certainly a universally recognized and a time-honored position, but the result thereof is inconsistent with the existence of any substance in the rights of appellant which the Supreme Court found to exist. There would be no real purpose in recognizing them if they can be so easily lost by the acts of others.
If the right of appellant to be protected against unreasonable searches is of such stature as to be recognized to be a fundamental one as in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, it is difficult to understand how it could be lost by such a combination of circumstances unrelated to any action on appellant’s part, and all completely beyond his control.
The circumstances are in some respects related to the cases concerned with a consent to search given by another member of the accused’s family or with consent by one co-user or by one cotenant or other owner of an interest in the premises. In many of such cases consent is found to be effective as to the accused, but the decisions are based on the voluntary nature of the act of a person with “control” or “supervision” of the property.1 In the case before us there was no voluntary act by anyone who had any connection with the property. Henry Murray’s arrest in the building indicates no consent to anything, and the fact that the premises would be protected also as to him does not alter the situation because reliance is on the arrest alone and not upon any voluntary acts. Under the government’s theory the arrest could just as well have been of a complete stranger.
The legality of the seizure as to appellant, and to his rights should be the determining factor. He made proper objection to the evidence as having been seized in violation of his rights. Henry Murray is not a party in this action, he was not prosecuted, and whether the seizure was or was not a violation of his rights would not seem to be a sufficient basis for a decision as to appellant’s rights.
. For example see Roberts v. United States, 332 F.2d 892 (8th Cir.) where consent of the wife was secured and the evidence used in a prosecution of the husband, but in Amos v. United States, 255 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654, the court did not pass on the effectiveness of a wife’s consent. Other cases with diverse holdings include: State v. Cairo, 74 R.I. 377, 60 A.2d 841 (Sup.Ct.); Stein v. United States, 166 F.2d 851 (9th Cir.); Morris v. Commonwealth, 306 Ky. 349, 208 S.W.2d 58; People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172; Cofer v. United States, 37 F.2d 677 (5th Cir.); United States v. Sferas, 210 F.2d 69 (7th Cir.) (partners); Driskill v. United States, 281 F. 146 (9th Cir.); United States v. Sergio, D.C., 21 F.Supp. 553; and State v. Kinderman, Minn., 136 N.W.2d 577.