Marshall Roy Lurie v. E. J. Oberhauser, Warden, Peter Gary D'AllessAnDro v. C. J. Fitzharris, Superintendent, Etc.

ELY, Circuit Judge

(dissenting in part):

While the question of the existence, vel non, of probable cause for the appellants’ arrest is, in my judgment, extremely close, I have decided to accept the majority’s resolution of that ques*334tion. I cannot, however, agree with the decision of my Brothers that the appellants have forfeited all right to challenge the admittedly unconstitutional search of their property. The majority reasons that the appellants have no sufficient standing to make the challenge because they did, in effect, abandon their property by disclaiming its ownership. I cannot accept that rationale, for, as I see it, the appellants really had no choice, when met with the questions put to them without adequate advance warning of their rights, except to utter their disclaimers of ownership or to sacrifice the right guaranteed to them by the Fifth Amendment. See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), wherein the Supreme Court specifically limited its opinion to crimes for which mere possession of contraband is sufficient for conviction (e. g. narcotics). I see no compelling distinction between that situation and that here involved, especially since the California appellate court, in reviewing appellants’ original convictions, remarked that mere possession of recently stolen property is sufficient for conviction when accompanied by “only * * * slight corroboration.” People v. Lurie, 257 Cal.App.2d 98, 102, 64 Cal.Rptr. 637, 641 (1968).