(dissenting).
I would reverse the conviction of the defendant on the single ground that the Federal Bureau of Investigation conducted an illegal search of the defendant’s home and that the evidence obtained by that search should have been suppressed.
The evidence showed that on the day of the defendant’s arrest seven or eight special agents of the F.B.I. arrived at his home shortly before noon. The defendant was sleeping at the time, and his wife admitted the agents. After being awakened from sleep, the defendant dressed. He was then handcuffed and placed in an automobile. Several minutes after her husband was taken from the house, the agents presented Mrs. Stone with a written consent to search the premises of the home, which consent she signed. The agents thereupon searched the house and seized a tackle box containing duplicate copies of the money orders obtained by the defendant. The tackle box and its contents were admitted into evidence over the objection of the defendant.
Mrs. Stone testified that the agents told her that she could sign the consent to search or that they could get a search warrant. This was denied by the F.B.I. agent in charge of the case. Mrs. Stone also testified that she was quite upset at the time. The testimony of two agents is contradictory on this point: one said Mrs. Stone appeared calm when she signed the consent; another said that she appeared to be upset. The defendant testified that he never gave the F. B.I. agents permission to search nor did he give his wife permission to consent to the search.
A significant aspect of the question presented in this case is the fact that the F.B.I. agent in charge testified that he had conversed with the Assistant United States Attorney handling the case — presumably before the search— and had been advised that there was insufficient probable cause for the authorization of a search warrant.
I
It is axiomatic that the Constitution endows every citizen with an individual right to the preservation of his privacy against official intrusion. The “Fourth Amendment protects people, not places.” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). The right of privacy which the Constitution protects is not strictly coextensive with spatial expanses over which a person has some superior interest recognized by the law of property. As the Supreme Court said in Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967), “[w]e have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.” Thus the defendant in Katz was protected from governmental intrusion by phone tap into a public telephone *175booth. Similarly, the privacy of a transitory hotel resident was protected in Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), where the Court held:
It is important to bear in mind that it was petitioner’s constitutional right which was at stake here, and not the night clerk’s nor the hotel’s. It Was a right, therefore, which only petitioner could waive by word or deed, either directly or through an agent. 376 U. S. at 489, 84 S.Ct. at 893.
In sum, the central policy of the fourth amendment is to protect from official search areas “where, like a home . a person has a constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. at 360, 88 S.Ct. at 516 (Harlan, J., concurring) .
A reasonable individual expectation of privacy may be officially invaded only under special circumstances. Foremost of course is when a search warrant is issued by a magistrate. Recently the Supreme Court said: “The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police.” Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969). The Court went on to say:
And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative. 395 U.S. at 760, 89 S.Ct. at 2039 (1968), quoting McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).
Thus the warrant requirement is removed when the search may be justified by an emergency or “exigent” circumstance. For example, a warrantless search of a stopped automobile was authorized in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), in response to the reality that a vehicle may move on and disappear before a warrant can be obtained. Similarly, Chimel allowed a warrantless search incident to an arrest whenever the arresting officer reasonably fears attack by the arrestee with a weapon concealed on his person, or fears that the arrestee will be able to dispose of easily destructible or concealable evidence before a warrant may be obtained.
Another exception to the warrant requirement is a search which follows the voluntary consent of the person whose privacy is sought to be invaded. As indicated by the Supreme Court in Stoner, the essence of this exception is a waiver of the constitutional right to privacy, and not a subordination of personal expectations of privacy to paramount policies of law enforcement. The same cannot be said of search by consent of third parties. This exception rests, I submit, on a different footing — more akin to that which justifies a warrantless search in exigent circumstances than to the waiver theory underlying a pure consent search.
II
Only where a true agency may be shown, in the strictest legal sense of that term, may a third party consent to a waiver of another’s rights under the fourth amendment. Stoner v. California, 376 U.S. at 489, 84 S.Ct. 889. This is a corollary of the long settled rule that constitutional rights may be waived by their holder and none other. With respect to agency in the husband-wife setting, it is an established principle that the marital relationship entrusts the wife with neither actual nor apparent authority to bind her husband in commercial transactions. Restatement (Second) of Agency § 22 (1957). A fortiori, this view applies to so personal a matter as the waiver of constitutional rights. In United States v. Airdo, 380 F.2d 103 (7th Cir. 1967) this Circuit re*176jected the agency rationale in the context of marital relationships while restating the rule regulating consent by a wife to a search of the dwelling occupied by her and her husband:
[W]e acknowledge the rule that “where two persons have equal rights to the use or occupation of premises, either may give consent to a search, and the evidence thus disclosed can be used against either.” . . . The considerations most applicable to the third person’s consent in such cases are not related to principles of agency connecting the defendant with the person acquiescing in the search, but rather concern the reasonableness, under all the circumstances, of a search consented to by a person having immediate control and authority over the premises or property searched. United States v. Airdo, 380 F.2d 103, 106-107 (7th Cir. 1967), cert. denied, 389 U.S. 913, 88 S.Ct. 238, 19 L.Ed.2d 260 (1967) (emphasis added).
This view is in accord with the holdings of a number of other circuits. United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839 (3d Cir. 1970); United States v. Thompson, 421 F.2d 373 (5th Cir. 1970); United States v. Maekiewicz, 401 F.2d 219 (2nd Cir.), cert. denied, 393 U.S. 923, 89 S.Ct. 253, 21 L.Ed.2d 258 (1968); Pasterchik v. United States, 400 F.2d 696 (9th Cir. 1968), cert. denied, 395 U.S. 982, 89 S.Ct. 2142, 23 L.Ed.2d 770 (1969); Anderson v. United States, 399 F.2d 753 (10th Cir. 1968); United States v. Alloway, 397 F.2d 105 (6th Cir. 1968); Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), cert. denied, 380 U.S. 980, 85 S.Ct. 1344, 14 L.Ed.2d 274 (1965).
The touchstone of the rationale underlying the rule enunciated in Airdo is “the reasonableness, under all the circumstances” of the third person consent, the voluntariness of that consent aside. Some courts have justified a search by third party consent by reasoning that a party who lives with another or shares an interest in property with another “takes the risk” that the other will consent to a police search of the shared dwelling or property. See, e. g., Marshall v. United States, 352 F.2d 1013 (9th Cir. 1965); State v. McCarthy, 20 Ohio App.2d 275, 253 N.E.2d 789 (1969),* in other words, that a person holding only part interest in the use of premises cannot reasonably expect that his dealings within those premises be free from official prying. What is being said, essentially, is that a spouse or cotenant lacks a personal interest cognizable under the fourth amendment. With this view, I strongly disagree. The constitutional right of privacy is individual to each person and may not be compromised so as to permit police intrusion by the mere sharing with another of the situs or property from which that right emanates in concrete form.
A fatal flaw in the “risk” theory is shown by cases holding that where one tenant gives permission to search an apartment, evidence obtained in that search is inadmissible against a cotenant *177having equal rights in the premises if the latter was present at the time of search and objected thereto. Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1968); see Dorsey v. State, 2 Md.App. 40, 232 A.2d 900 (1967); Tompkins v. Superior Court, 59 Cal.2d 65, 27 Cal.Rptr. 889, 378 P.2d 113 (1963); Carlton v. United States, 391 F.2d 684, 686 n. 4 (8th Cir. 1968); contra, People v. Smith, 183 Cal.App.2d 67, 6 Cal.Rptr. 866 (Dist.Ct. App.1960). This question is pertinent: If it is true that the objector has accepted the “risk” of a consent search and no longer expects privacy of his affairs in the dwelling, why does his presence have an impact on the legality of the search? The question, I submit, cannot be answered. Nevertheless, I do agree that the absence of a party whose property is sought to be searched is an important consideration relevant to the reasonableness of a search by third party consent.
III
In my judgment, search by third party consent rests on the same policy of government need which supports an exception to the warrant requirement in exigent circumstances. When time or a lack of probable cause does not permit a warrant to be obtained, a search by consent is often the only way in which a dwelling may legally be searched. Thus, the precise issue of third party consent should be this: Are the police to be deprived of the benefits of a consent search of a shared premises when the only party who could effectively waive his fourth amendment rights to privacy, and who might do so if asked, is absent from those premises? I suggest that the answer lies in the reasonableness of this kind of search, considering all the attendant circumstances. The exigencies of the situation, the relationship of the parties, the whereabouts of the absent party, and the reasons for his absence are all relevant factors.
Not all third parties may effectively consent, of course. Where the third party has interests indifferent or adverse to those of the absent person, consent will not lie. For example, the hotel clerk, as in Stoner, is indifferent to the privacy interest of the room renter. The estranged wife is adverse to her husband’s fourth amendment rights. Cf. Kelly v. State, 184 Tenn. 143, 197 S.W.2d 545 (1946). Conversely, the common interests and intimate character of the relationship of the parties may lend support for the third party consent search. See United States ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839, 843 (3d Cir. 1970).
Basic to the third party consent rationale is the premise that the absent party might, were he present, consent to the search, in which event no constitutional rights would be violated. Therefore the whereabouts of the absent party is highly important, as is the cause of his absence. See 39 U.Cin.L.Rev. 807, 814 (1970); 79 Harv.L.Rev. 1513, 1519 (1966). When the person who could waive his right to privacy is absent from his dwelling by reason of flight or hiding from law enforcement officers for fear of arrest, as in Wade v. Warden, Maryland Penitentiary, 278 F.Supp. 904 (D.Md.1968), a strong case for third party consent to search is presented. The suspect has consciously made himself unavailable to the police, and it is entirely his fault that they cannot obtain his answer to their request to search. If, on the other hand, his absence is not in response to a fear of arrest, but simply the result of an errand or other everyday activity, the case becomes less clear.
In the present case, the defendant was not “absent” in any sense in which that term should be used in the context of a third party consent search. He was in official custody at the scene of the search only minutes prior to the consent of his wife and, after that, was in custody in transit to and at the police station. Without the slightest difficulty, the arresting officers could have requested his consent to search. They did not, perhaps in fear of a negative reply, and it is now contended that his wife’s consent was valid on the basis of a rule which *178rests, as I see it, on the actual impossibility of presenting the suspect with a request to search. I reject this contention, and suggest that the rule of Airdo, however sensible in other settings, was wrongly applied to the facts of this case.
Some courts have offered what may bo another explanation of the joint possession rule. See, for example, Roberts v. United States, 332 F.2d 892 (8th Cir. 1964), where the Eighth Circuit stated:
[T]he right of the wife ... to enter the home which was in her possession and control cannot be seriously questioned and . . . her invitation to and authorization to the officers to enter and search was an outgrowth thereof. It is not a question of agency, for a wife should not be held to have authority to waive her husband’s constitutional rights. This is a question of the wife’s own rights to authorize entry into premises where she lives and of which she had control. 332 E.2d at 896 (emphasis added).
This analysis is apparently distinct from “risk” theory, and assumes that an absent party whose dwelling is searched is the holder of unwaived fourth amendment rights to privacy. Unfortunately, the position fails to explain why these rights of the absent party become irrelevant upon the consent of a wife or cotenant, or how the right of entry of the wife has as its natural “outgrowth” the right to authorize a police search against her husband.