247 F.2d 584
John J. RIGBY, Appellant,v.UNITED STATES of America, Appellee.
No. 13840.
United States Court of Appeals District of Columbia Circuit.
Argued June 25, 1957.
Decided July 11, 1957.

Mr. David Carliner, Washington, D. C., (appointed by this Court) for appellant.
Mr. Harry T. Alexander, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Oliver Gasch, U. S. Atty., Lewis Carroll, and Joel D. Blackwell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.
Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.
DANAHER, Circuit Judge.


1
Appellant charges that the District Court erred in denying his motion to suppress the use against him of certain evidence, seized from his home. He had alleged that F.B.I. agents, without a search warrant and without valid consent, had entered his apartment on June 27, 1956, while seeking the effects of one Accardo.1 The latter had been arrested on a fugitive warrant while on the street, outside of the premises where Rigby's apartment was located. Next day, upon learning of the arrest of Accardo, Metropolitan Police went to the F.B.I. office and examined two suitcases, said by Mrs. Rigby to have been the property of Accardo. Recognizing the contents as property said to have been stolen, the police had ample opportunity to obtain a search warrant, but failed to do so.2 Instead, they went to and entered Rigby's apartment, and searched for and seized additional items said to have been stolen. Indictments followed, and Rigby and Accardo were convicted.


2
Although the federal agents were present in court at the time of the hearing on the motion, they were not called to testify as to the circumstances preceding and associated with their entry into Rigby's apartment. One agent took the stand but was excused without being questioned on the point. The Government, apparently having concluded that Accardo lacked standing to challenge the entry and search by the F.B.I. agents, offered no evidence whatever as to the appellant's waiver of his Fourth Amendment rights.


3
Quite apart from the burden normally devolving upon the accused to demonstrate alleged illegality in the procurement of evidence,3 we have pointed out that if the Government relies upon consent and alleges the absence of intimidation and duress, "it has the burden of convincing the court that they are in fact absent."4 Here, neither by testimony nor by affidavit, did the Government establish true consent, free of duress and coercion, in refutation of Rigby's claims. Absent such a showing, "we must hold that there was no consent and that the search and seizure [by the F.B.I. agents] were not permissible."5 Since no independent basis has been demonstrated for the June 28 police search without a warrant, it follows that Rigby's motion to suppress should have been granted.


4
Reversed.


5
WILBUR K. MILLER, Circuit Judge, dissents.



Notes:


1
 Accardo v. United States, 1957, 100 U.S. App.D.C. ___, 247 F.2d 568


2
 Id. Accardo had expressly disclaimed ownership of the stolen property. When arrested he was wearing a diamond ring which had been stolen from the home of one Bauman. Police procured a search warrant for the purpose of picking up the ring from the police property clerk, and it was later identified at the trial as the property of a Mrs. Davis, employee at the Bauman home. No evidence was adduced linking Rigby with the theft of the ring


3
 Nardone v. United States, 1939, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307


4
 Judd v. United States, 1951, 89 U.S. App.D.C. 64, 66, 190 F.2d 649, 651


5
 Id., 89 U.S.App.D.C. at page 67, 190 F. 2d at page 652; cf. Higgins v. United States, 1954, 93 U.S.App.D.C. 340, 209 F.2d 819


