(concurring) .
I concur fully in Judge Peck’s opinion. But in view of the dissent, I would like to add a few words about this interesting Fourth Amendment problem.
The facts which Judge Miller found after a full evidentiary hearing seem to me to warrant the view that there was a search and seizure under police authority. When a businessman at police request opens his place of business in the nighttime and, with police personnel present, looks for and finds and turns *1328over to them an article of clothing, it seems to me that the search should be regarded as police action. The finding of the District Judge that “the suit was located and freely surrendered by the manager of the laundry” simply makes conclusive the voluntary consent to police search of the premises and seizure of the suit on the part of the owner! of' the premises, and the person in lawful possession of the suit.
Such consent is, of course, one of the established exceptions to the requirement of a judicially issued warrant. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Nelson v. California, 346 F.2d 73 (9th Cir. 1965); Simmons v. Bomar, 349 F.2d 365 (6th Cir. 1965).
The police right to seize the suit does not rest upon “proof of a superior property interest.” It rests upon “cause to believe that the evidence sought will aid in a particular apprehension or conviction.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). I agree with Judge Peek and the District Judge that there clearly was such cause in this case. (See Appendix A.) Not only was the police entry on the premises wholly lawful, but I am also unable to find in this record any invasion of appellant’s right of privacy. Certainly in placing this suit in a channel of commerce where it was bound to be seen and handled by many persons, appellant made no attempt to retain privacy. He certainly did not employ the sealed container used for that purpose in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966).
What we have left then is whether or not valuable evidence of a crime may be seized in the midst of a wholly lawful search. The Supreme Court has recently answered this question affirmatively in the two cases cited in Judge Peek’s opinion. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642 (1967), and Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969). See also Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).
The opinion for the Court in Frazier said:
“Petitioner’s final contention can be dismissed rather quickly. He argues that the trial judge erred in permitting some clothing seized from petitioner’s duffel bag to be introduced into evidence. This duffel bag was being used jointly by petitioner and his cousin Rawls and it had been left in Rawls’ home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag and both Rawls and his mother consented to its search. During this search, the officers came upon petitioner’s clothing and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court’s past decisions, they were clearly permitted to seize it. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.” Frazier v. Cupp, supra, 394 U.S. at 740, 89 S.Ct. at 1425.
APPENDIX A
In the record at appellant’s state court trial (which was before the District Judge and is before us), one of the witnesses testified as follows:
Q. 61. I’ll ask you specifically if you saw the defendant on the evening of Feb*1329ruary the 22nd of this year?
A. I did.
Q. 62. And, where were you at that time?
A. I was at Ruth’s Diner.
Q. 63. And, about what time was it?
A. It would be about 6:30.
Q. 64. Did you arrive first or—
A. I mean 7:30.
Q. 65. Did you arrive first or did the defendant arrive first?
A. I got there and he was talking on the telephone when I got there.
Q. 66. And, what did you do when you got there?
A. Well, he usually drank a quart bottle of Budweiser, and I saw one sitting on the bar, so I sat down close to it, and he got off the phone and came over and moved his beer over next to me, and we started talking.
Q. 67. And, about how long did you talk?
A. Oh, about 20 minutes I would say.
Q. 68. Do you recall seeing anybody else there that night?
A. Well, there was Ruth — .
Q. 69. Who is Ruth?
A. The owner, Ruth Cullen.
Q. 70. I see, and what was the nature of your conversation, Mr. Baker ?
A. Well, after John Clarke got off the telephone, he said that he was just talking to a Freshman at U.T. who was here in Nashville visiting, or staying with her mother, and that he had invited himself over with some beer, a six pack I believe he said, and that he had known the mother of this girl—
Q. 71. In what connection?
A. In that he had had sexual relations with her.
Q. 72. And what, if anything, did he tell you about his intentions of going there ?
A. Well—
MR. GALBREATH: If the Court please, we object to leading.
THE COURT: I don’t think that’s leading, let him answer.
A. Well, he said that he phoned under the pretence of — to see the girl’s mother, and that he invited himself over to bring some beer to wait for the mother, and he said that he was going to try to make sexual advances toward the daughter, and if he couldn’t then he would wait for the mother.
Q. 73. I see, now, when did you read about this killing in the newspaper?
A. That would be Sunday morning about 11.
Q. 74. And, about what time did Mr. Clarke leave there, leave Ruth’s that night ?
A. Well, I drank one beer and got up to leave, and he left just before I did, it would be about 8 o’clock.
Q. 75. How was he dressed, Mr. Baker, that night?
A. As I remember he had on a dark coat and dark pants.
Q. 76. What, if anything, did you do when you saw this article in the paper the following day?
A. Well, I read through it, and it kind of clicked in my mind, but, the article in the paper said that it was an 18 year old U.T. coed, whereas, he had mentioned the fact that she was a Freshman.
Q. 77. Yes, sir?
A. And, it also did not give the caliber of the gun used as a 32 automatic, which I remembered that John Clarke did have this 32 Beretta.
Q. 78. And, did you later see another article ?
A. Yes, that night I read a later edition of the paper, and this told that it was a 32 automatic, and that the girl was a Freshman.
Q. 79. What did you do then?
A. Well, that night I phoned police headquarters for a Nashville officer, McAron.
Q. 80. And, did you give him this information ?
*1330A. No, he Was out, and so then I went home and went to bed—
•X- * * -X- -X- -X-
A. —and so, anyway, I went to sleep that night and the next afternoon about 2:30 I phoned police headquarters and arranged a contact with McAron, — McAron and John Dodson at King’s Inn, and we — I told them what I knew.