(dissenting) :
Most respectfully I state my disagreement with the majority’s conclusion that probable cause existed for the search of the van-type rental truck which the defendant was operating on the public highway.
It is true that there was evidence of the issuance of a Departmental Memorandum to state police officers, warning of the possibility that rental trucks were being used to transport stolen goods, instructing officers to stop rental trucks and trailers, to check designation of cargo, and, if given permission, to look inside.
The truck was being driven on the public highway in northern West Virginia toward the dividing line between the states of West Virginia and Pennsylvania. There was no evidence of any traffic violation. The papers exhibited to the police officer were found to be in order. The van-type body of the truck was closed. Several requests of the officer for permission “to look inside” were refused. The officer persisted, threatening to get a search warrant, and the defendant said, in substance, “You’ve got the gun and the badge and I can’t stop you from looking.” From this the Government argues that the defendant voluntarily consented to the search.
I have no quarrel with the majority’s statement that it has long been held “that an officer possessing information sufficient to constitute probable cause to search, may stop and search a moving vehicle without being required to obtain a search warrant.” It is essential, however, that the information be sufficient to constitute probable cause and if it does nothing more than arouse suspicion the search based thereon is without legal justification.
Nor do I have any disagreement with the proposition that a movable vehicle is more readily subject to search without a warrant than a building or other fixed and immovable object. The cases cited by the majority, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), fully support that proposition; but, while Chambers dispels any doubt which may have arisen as to the continuing viability of Carroll *316and Brine gar, it is quite clear that the court in Chambers did not eliminate or water down the requirement of probable cause merely because the object of the search is a vehicle. I cannot read these cases, or any others with which I am familiar, as permitting a warrantless search of anything, including vehicles, without probable cause.
The ari’esting officer was not investigating any crime in the area of his patrol. He had no information that a burglary had occurred in Pennsylvania in which a large quantity of unstamped cigarettes had been stolen. He recalled a bulletin from headquarters which had been issued one or two months earlier concerning rental trucks.
After the search, the defendant was first taken before a Justice of the Peace in West Virginia where an arrest warrant and a warrant for a search of the truck1 were obtained and he was charged with a violation of a West Virginia statute pertaining to possession of unstamped cigarettes. A hearing was held before the Justice of the Peace and a continued hearing was held several days later. In the interim, on the complaint of a special agent of the FBI, the defendant was given a hearing on January 12, 1967, before a United States Commissioner on the federal charge which formed the basis of this prosecution and another hearing before the Commissioner on February 8, 1967. The arresting officer testified at these hearings but for the very first time the officer testified, at the Commissioner’s hearing on February 8, that the truck was sitting on its “overload springs.” At these same hearings the officer testified repeatedly that he “arrested” the defendant only on suspicion while, confusingly and inexplicably, at trial he testified that he did not “arrest” the defendant at the scene of the search even though there was evidence to show that the defendant had been handcuffed before the officer entered the van to examine its contents. The officer repeated his testimony that his search of the truck was based on suspicion.
The majority refers in equivocal terms to government counsel’s “concession,” but there is no room for equivocation. My recollection has been refreshed upon listening to the tape recording of oral arguments of counsel. Government counsel frankly conceded that the search of the truck was without probable cause and that the search was illegal unless the defendant voluntarily consented thereto.
Clearly, as the majority states, no consent to the search was voluntarily given. My difficulty is in finding the requisite probable cause for the search and it is obvious that government counsel had the same difficulty.
The evidence as to instructions to patrolling police officers with reference to stopping rental trucks was somewhat vague as to the time when the instructions were issued but it is clear that only if given permission were the officers instructed to look inside the stopped rental trucks and trailers.
The officer persisted in his requests for permission to look inside but permission was repeatedly refused. After the search the officer obtained from a justice of the peace a warrant for the arrest of the defendant and a warrant for the search of the truck, but the arrest and search were then past history. In fact, the defendant was in handcuffs before the search and yet the officer testified that he made no arrest at the scene of the search. He testified at preliminary hearings that he arrested defendant on suspicion. Four preliminary hearings were held, two on state charges and two on federal charges, but it was not until the fourth hearing that the officer happened to remember the “overload springs” bit.
Government counsel may have been embarrassed by finding himself in the position of having to rely upon such testimony to establish probable cause for the *317warrantless search. It is to his credit that he was reluctant to do so and he made the concession that the search could be sustained only on the basis of voluntary consent.
I cannot disregard or “sweep under the rug” this concession which, to me, is highly significant in the circumstances. In innumerable instances within my recollection we have not hesitated to act upon a defendant's damaging concession against his own interest, whether in brief or oral argument, and a defendant is no less entitled to benefit from the Government’s open and unequivocal disclaimer of continued reliance upon a vital point. I would reverse.
. A second search pursuant to a warrant would not legalize the search which had already been made without probable cause.