275 A.2d 362
Supreme Court of Pennsylvania.January 7, 1971.
March 18, 1971.
Waiver of constitutional protection — Search and seizure — Burden of proof — Defendant’s articles stored with third person — Right of third person to consent to seizure of articles — Evidence.
1. The burden to prove waiver of the constitutional protection against an unreasonable search and seizure is upon the asserting party. 
2. In this case, in which it appeared that defendant stored certain personal effects on the boat of another; that the owner of the boat had no authority to open the containers of defendant’s personal effects or to use them for his own purposes, and the facts established that defendant did not relinquish or abandon his ownership or control in and over the articles stored; and that the boat owner allowed police officers to take possession of defendant’s personal effects without a warrant; it was Held that the owner of the boat had no independent right of his own to consent to the seizure, and could not effectively waive defendant’s constitutional right to
be secure in his “personal effect”, as secured by the Fourth Amendment.
Before BELL, C. J., JONES, EAGEN, O’BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appeal, No. 184, Jan. T., 1971, from order of Court of Common Pleas of Bucks County, No. 700 of 1968, in case of Commonwealth of Pennsylvania v. Ronald Eugene Storck. Order affirmed; reargument refused April 13, 1971.
Indictment charging defendant with murder, robbery, and related offenses. Before SATTERTHWAITE, P. J.
Supplemental application by defendant to suppress physical evidence granted. Commonwealth appealed.
Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellant.
Harold B. Vikoren, with him Alan D. Williams, for appellee.
OPINION BY MR. JUSTICE EAGEN, March 18, 1971:
Ronald Eugene Storck was taken into police custody in Honolulu, Hawaii, and then extradited to Pennsylvania to face criminal charges pending in Bucks County, Pennsylvania. Police officers were subsequently sent to Honolulu to investigate Storck’s activities during his stay in that area, and while there interviewed a Frank Carreira, who at the time was living on a sixty-five foot power boat. Carreira told the officers, that before his arrest Storck had manifested an intention to purchase the Carreira boat, and before leaving for New York purportedly to obtain the necessary money, had “stored” in a room on the boat a quantity of items, including two suit cases, three or four
boxes and a duffel bag. Two days later, the officers returned to the boat without a search warrant and, after telling Carreira that they had “a right to these items” were “allowed” by Carreira to take possession of the suit cases, boxes and duffel bag. Later, upon opening these items the police discovered enclosed therein a series of articles which the Commonwealth planned to use against Storck in the prosecution of the criminal charges pending against him in Bucks County. A timely pretrial motion to suppress this evidence was filed, and after a hearing the court below granted the motion. The Commonwealth filed this appeal. We affirm.
There is no claim that probable cause existed to warrant a seizure of the suppressed evidence, but the Commonwealth contends that the evidentiary use thereof is constitutionally permissible because the constitutional protection against an unreasonable search and seizure was waived. The burden of proving such a waiver rests upon the asserting party Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788 (1968).
The Commonwealth first asserts that such a waiver was established through the testimony of Carreira that he gave permission to the police to take possession of the suit cases, boxes and duffel bag. For the purpose of this opinion, it is unnecessary to decide whether this permission was validly obtained or was binding on Storck as far as the containers themselves are concerned. But see, Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420 (1969), and U.S. ex rel. Cabey v. Mazurkiewicz, 431 F.2d 839 (3d Cir. 1970). See also, 70 Dick. L. Rev. 510 (1966) and 36 Temple Law Quarterly 95 (1962). What we must decide is, assuming Carreira also gave a valid permission or consent to the police to open these containers and seize the articles enclosed therein, did this bind Storck. We conclude not.
The suit cases, boxes and duffel bag were merely “stored” on Carreira’s boat. His possession was for a limited purpose, and somewhat akin to that of a bank which rents boxes in its safety box vault for the “storage” of its customers’ valuables. Carreira had no authority to open the containers or to use them for his own purposes such as in Frazier v. Cupp, supra, nor do the facts establish that Storck relinquished or abandoned his ownership or control in and over the articles stored. Hence, the contention of the Commonwealth that Carreira enjoyed an independent right of his own to consent to the seizure cannot be sustained. Cf. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889 (1964); Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776 (1961); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725
(1960); United States v. Poole, 307 F. Supp. 1185 (E.D. La. 1969); United States v. Brown, 300 F. Supp. 1285 (D. N.H. 1969); and, People v. Egan, 250 Cal.App.2d 433, 58 Cal. Reporter 627 (1967).
Here, Carreira, like the landlord in Chapman, supra, and the hotel clerk in Stoner, supra, could not effectively waive Storck’s constitutional right to be secure in his “personal effects,” as secured by the Fourth Amendment.
Finally, the Commonwealth contends that a waiver existed, because Storck’s personal attorney in Honolulu, John Ahrens, Esq., gave Carreira permission by phone to deliver the suit cases, boxes and duffel bag to the police. The lower court found as a fact, based on competent and credible evidence, that this phone conversation did not take place until after Carreira had already given the police possession, and, therefore, the permission given by Ahrens is of little moment in resolving the pivotal issue of Carreira’s right to waive Storck’s constitutional protection.
Also, under the circumstances, we need not reach the question of whether or not an attorney may pretrial and without consultation waive a protection given his client by the Constitution.