Petition eok Rehearing.
Our opinion was rendered in the above entitled cause on October 29,1964. On November 16,1964 the opinion of the Court of Appeals for the Third District in the case of United States v. Konigsberg, 336 F2d 844 (3rd Cir, 1964), was published, revealing facts strikingly similar to the instant case. There the defendants were tried and convicted of unlawful possession or concealment of goods stolen in interstate commerce, involving the hijacking of men’s suits. The suits were placed in a garage in New Jersey which was subsequently searched and the goods seized. One of the defendants, Zax, testified that he was the lessee of the garage on a month to month basis and that he in turn had leased the garage to one Joseph Pope. A motion to suppress was made by the defendants. The prosecution contended that none of the defendants had standing to challenge the search and seizure as persons aggrieved. Pope, the alleged lessee, was not produced at the trial. The court said (p 846):
“None of the defendants, including Zax, had a then present possessory interest in the garage. The only one, according to Zax as a trial witness, who had the right at that time to use the building was the mysterious Mr. Pope to whom Zax said he had rented the premises for a week or two on January 4th, 5th, 6th, or 7th. . . . Beyond question if appellants were legitimately in the garage as invitees or guests of Pope as sublessee they might well have been under the Fourth Amendment umbrella. However, that is not the situation and, as above noted, there is no pretension that it is.”
In the opinion we rendered in the instant case, we held that the only possessory right in the garage which was searched was in the vague and absent lessee Cohn whose address was unknown; that no one but Cohn had a possessory right, and that there was no evidence showing any right in the defendants derived from Cohn. It appears that in both cases reliance was placed on Jones v. United States, 362 US 257, 4 L Ed2d 697, and that the effort to obtain shelter under the fourth amendment proceeded on almost the same factual basis in Illinois as in New Jersey.
Defendants in their petition for rehearing vigorously contend that the court was mistaken in its understanding of the Jones case; that in the Jones case possession of the goods was only evidence as in the instant case, and not the essence of the offense, and hence the Jones case cannot be distinguished on that ground from the case before us. We will clarify this understanding.
In the Jones case, the Supreme Court qualified the principle which had been applied by the lower federal courts for many years, that is, that to establish standing, a petition to suppress evidence must show that the petitioner OAvned or possessed the seized property or had a substantial interest in the premises searched. Jones was indicted on two charges: (1) that he “purchased, sold, dispensed and distributed” narcotics in violation of 26 USC, § 4704(a), that is, not in or from the “original stamped package,” and (2) that under 21 USC, § 174, he “facilitated the concealment and sale of” the same narcotics, knowing them to have been imported illegally. The court made this pertinent observation on both of these charges (p 258):
“Both statutory provisions under which petitioner was prosecuted permit conviction upon proof of the defendant’s possession of narcotics, and in the case of 26 USC, § 4704(a) of the absence of the appropriate stamps. Possession was the basis of the Grovernment’s case against petitioner.”
Again the court said (p 261) :
“To establish ‘standing,’ Courts of Appeal have generally required that the movant claim either to have OAvned or possessed the seized property or to have had a substantial possessory interest in the premises searched.”
The court, in describing the dilemma which faced the defendant, said (p 263):
“possession both convicts and confers standing. . . .” and again, on the same page (263):
“Petitioner’s conviction flows from his possession of the narcotics at the time of the search.”
These statements clearly reveal that while the indictment in the Jones case did not make possession in itself the crime, the Supreme Court made clear that possession constituted the proof thereof.
In the light of these statements we do not construe Jones v. United States, supra, as applying to cases involving burglary and theft, even though such crimes always involve in some sense the possession of goods. Evidence of possession involving narcotics cannot be compared with evidence of possession of the type of merchandise involved in the instant case.
Our statement in the opinion, however, that the complaint in the Jones case involved prosecution for the possession of narcotic drugs is somewhat imprecise, and we have revised it by substituting, in lieu of the sentence beginning on the seventh line from the bottom of page á of the opinion, and reading:
“This was decided in Jones v. United States, 362 US 257, 4 L Ed2d 697, which involved a prosecution for the possession of narcotic drugs.”
the following sentence:
“This was decided in Jones v. United States, 362 US 257, 4 L Ed2d 697, involving prosecution for violation of two statutory provisions. The court in its description of these charges said, at p 258: ‘[b]oth statutory provisions under which petitioner was prosecuted permit conviction upon proof of the defendant’s possession of narcotics, and in the case of 26 USC § 4704(a) of the absence of the appropriate stamps. Possession was the basis of the Government’s case against petitioner.’ ”
and by adding the words “in such a case” after the word “standing,” at the end of the fourth line from the bottom of page 4 of the opinion.
The petition for rehearing is denied.
Petition for rehearing denied.
DEMPSEY, P. J. and SULLIVAN, J., concur.