(dissenting).
I respectfully dissent on two grounds from the views expressed in the majority opinion. First, I would limit the majority’s implication that Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), is relevant to the instant case. Rather, I think it clear that nothing in Ashe, or Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970), applying collateral estoppel after final judgment in criminal cases, deals with the separate issue of law of the case, a discretionary doctrine which need not be applied while a case is still pending, as is true here. Second, I disagree that the gun was improperly received into evidence and would, therefore, reverse the district court’s grant of habeas corpus relief.
The rule barring use of evidence secured through illegal search and seizure was judicially imposed on the federal courts in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), as a “deterrent safeguard,” Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), against practical nullification of the Fourth Amendment. Mapp subsequently required its application by state courts *845after experience under Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), which had imposed on the states merely the substantive Fourth Amendment protections, proved that remedies other than exclusion were worthless to protect the rights guaranteed therein, Mapp, supra at 651-652, 81 S.Ct. 1684. See People v. Cahan, 44 Cal.2d 434, 282 P.2d 905 (1955). In contrast to other constitutional protections, e. g., right to counsel, Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), or an accused’s right to effective exclusion of an involuntary confession, Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the remedial Fourth Amendment exclusionary rule does not go to “the very integrity of the fact-finding process,” Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965). See also, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). The evidence excluded “because the constable blundered,” People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (J. Cardozo), cert. denied, 270 U.S. 657, 46 S.Ct. 353, 70 L.Ed. 784 (1926), is clearly competent and reliable while coerced confessions, for example, are of doubtful trustworthiness.
An effective prophylactic rule, however, must be certain in operation and comprehensible to the class of persons upon whom it is designed to operate — in this case police officers in the field. An absolute warrant requirement would satisfy these criteria but the courts have declined to go so far, recognizing instead three categories of exceptions: searches incident to valid arrests, Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); searches of readily removable motor vehicles when probable cause exists to believe they contain fruits or instrumentalities of crime, Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); and searches consented to either by the subject or, in limited circumstances, by a third party. Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969).
Third party consent has been justified on the ground either of implied authority to waive the subject’s rights or of the consenting party’s independent possession and control of the searched premises. I submit, however, that the former rationale is untenable as applied in most situations and particularly in all instances of attempted waiver of one’s spouse’s rights. Only an attorney realistically possesses implied authority to waive another’s constitutional rights and in practical experience the legal niceties of the existence of implied authority are too complex to be pragmatically determined by a policeman in the field. On the other hand, the latter rationale involves simply a waiver of the consenting party’s own rights regardless of the simultaneous effect upon another’s similar rights.
The right of a third party to consent to a search of jointly controlled premises has been judicially recognized in circumstances involving varied relationships between the consenting party and the party against whom evidence is discovered: spouses, United States v. Thompson, 421 F.2d 373 (5 Cir. 1970); United States v. Alloway, 397 F.2d 105 (6 Cir. 1968); Roberts v. United States, 332 F.2d 892 (8 Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965); mistresses and their lovers, United States v. Airdo, 380 F.2d 103 (7 Cir. 1967), cert. denied, 389 U.S. 913, 88 S.Ct. 238, 19 L.Ed.2d 260 (1967); Nelson v. People of State of California, 346 F.2d 73 (9 Cir. 1965), cert. denied, 382 U.S. 964, 86 S.Ct. 452, 15 L.Ed.2d 367 (1965); Stein v. United States, 166 F.2d 851 (9 Cir. 1948), cert. denied, 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768 (1948); hosts and temporary house-guests, Pasterchik v. United States, 400 F.2d 696 (9 Cir. 1968), cert. denied, 395 *846U.S. 982, 89 S.Ct. 2142, 23 L.Ed.2d 770 (1969); Weaver v. Lane, 382 F.2d 251 (7 Cir. 1967), cert. denied, 392 U.S. 930, 88 S.Ct. 2289, 20 L.Ed.2d 1390 (1968); Fredricksen v. United States, 105 U.S.App.D.C. 262, 266 F.2d 463 (1959); roommates, Wright v. United States, 389 F.2d 996 (8 Cir. 1968); automobile bailors and bailees, Anderson v. United States, 399 F.2d 753 (10 Cir. 1968); United States v. Eldridge, 302 F.2d 463 (4 Cir. 1962); parents and children, United States v. Stone, 401 F.2d 32 (7 Cir. 1968); joint tenants, United States v. Thoresen, 281 F.Supp 598 (N.D.Cal. 1967); business partners, United States v. Sferas, 210 F.2d 69 (7 Cir. 1954), cert. denied, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086 (1954). In each of these instances, courts have deemed warrantless searches reasonable, hence constitutionally permissible, if the consenting party was clothed with lawful possession and control of the articles seized or the premises on which they were located, United States v. Eldridge, supra. Together, the holdings suggest a rule approving official searches made in reasonable reliance upon the consent of one who, in common experience, has an independent right to possession and control of premises, whether the search is initially directed at the consenting party or someone else.
In the instant case, Mrs. Cabey, as wife of the defendant, was superficially someone who could reasonably be assumed to enjoy full access to household items acquired as an incident of her marriage. Spouses generally share such rights regardless of which has actually purchased the articles. Moreover, it is usual for each to possess means of access to them when not in daily use. It is illogical to require the officers to have considered whether this particular wife had technical title to the storeroom in which her and her husband’s belongings were temporarily housed. Thus, the individual in whose name the garage was leased, the number of keys extant, and the method by which Mrs. Cabey acquired the particular key which admitted the officers to the garage should not have occasioned specific concern at the time nor have been determinative after the fact of the admissibility of evidence seized therefrom. Law officers should neither be required nor expected to “engage in * * * metaphysical subtleties in judging the efficacy of (a) consent.” Frazier v. Cupp, supra.
In Frazier, the Supreme Court “dismissed rather quickly” the petitioner’s contention of error in the admission of evidence against him seized from a duffel bag jointly used by petitioner and his cousin and left in the cousin’s home. The cousin consented to a warrantless search. In holding that the cousin, as a joint user, “clearly had authority to consent to (the bag’s) search,” the Court stated that “petitioner, in allowing (his cousin) to use the bag and in leaving it in his house, must be taken to have assumed the risk that (his cousin) would allow someone else to look inside.” Frazier, supra, 394 U.S. at 740, 89 S.Ct. at 1425. Clearly, the “risk” involved is that someone with an equal or similar Fourth Amendment right will consent to a warrantless search of the place of concealment chosen by one against whom evidence thereby discovered is used. And if a joint user of premises is deemed to have assumed the risk of searches allowed by fellow users, then the majority’s contention that Mrs. Ca-bey’s possible hostility toward her husband distinguishes their situation from that of all other joint users of property, must be rejected. The suggested subjective antagonism between the two is irrelevant to the risk each assumed by virtue of their objective relationship and the reasonable assumptions others can be expected to make concerning it. Cases cited by the majority in which such assumptions have been held unreasonable, e.g., Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Cunningham v. Heinze, 352 F.2d 1 (9 Cir. 1965), cert. denied, 383 U.S. 968, 86 S.Ct. 1274 16 L.Ed.2d 309 (1966); Reeves v. Warden, 346 F.2d 915 *847(4 Cir. 1965); Holzhey v. United States, 223 F.2d 823 (5 Cir. 1955); United States v. Blok, 188 F.2d 1019, 88 U.S.App.D.C. 326 (1951), are distinguishable. Each involved either areas or articles reserved for the exclusive use of a party other than the consenting party, or a consenting party who did not have a right of access co-equal to that of the non-consenting party; and these circumstances were reasonably obvious or explicitly revealed to the officers conducting the search.
I therefore conclude that the detectives’ assumption that Mrs. Cabey was legally competent to waive a warrant for search of the garage was not so unreasonable as to necessitate the sanction of freeing a man in whose conviction of guilt no taint in the fact-finding process is suggested. This approach does not turn on rejection of the notion that the Fourth Amendment protects privacy rather than property. It concentrates instead on whether or not the person consenting has a right of either kind which he is competent to waive. Moreover, if courts will not apply some kind of rule of reason to police reliance on the third party’s right to consent, then the only feasible alternative is insistence upon consent by all parties having rights of possession and control. The Supreme Court has declined to go so far.