opinion: Bobby Joe FAUBION, Appellant, v. UNITED STATES of America, Appellee.
  No. 329-69.
  United States Court of Appeals, Tenth Circuit.
  April 17, 1970.
  Hill, Circuit Judge, dissented.
  Tom R. Mason, Muskogee, Okl., for appellant.
  Robert D. McDonald, Asst. U. S. Atty., Muskogee, Okl. (Richard A. Pyle, U. S. Atty., Muskogee, Okl., with him on the brief) for appellee.
  Before MURRAH, Chief Judge, and HILL and HICKEY, Circuit Judges.
  HICKEY, Circuit Judge.
  On December 17, 1968, appellant Faubion was indicted by a grand jury on a charge of violating 15 U.S.C. § 902(g), interstate transportation of stolen firearms. Thereafter he was tried and found guilty by a jury. It is from that conviction which he now appeals.
  Faubion presents the following issues for review by this court:
  (1) Whether the lower court erred in overruling Faubion’s motion to suppress the evidence of the weapons seized from his luggage and in permitting the admission of the weapons into evidence at trial over his objections.
  (2) Whether the evidence was sufficient to establish a prima facie case of knowledge or cause for knowing the weapons were stolen.
  (3) Whether it was error to instruct the jury that an inference of knowledge arises from the possession of recently stolen property.
  (4) Whether it was error to display the weapons in the presence of the jury before they were admitted into evidence.
  Faubion was arrested in Oklahoma on the basis of a warrant held by the Arkansas authorities which charged him and his wife each with a misdemeanor and charged Faubion with a felony. The charges of the warrant were founded upon offenses not related to the present offense. The apprehension by Oklahoma officers was made without the issuance of an Oklahoma warrant. The Arkansas authorities were notified and arrived in Oklahoma to return the prisoners. Both Faubion and his wife waived extradition and voluntarily returned to Arkansas with the sheriff. Before leaving Oklahoma Faubion’s wife, accompanied by local police, returned to the motel in which Faubion and she were staying when apprehended. She paid the bill, gathered their portable luggage and placed it in the trunk of the Arkansas officers’ car.
  During the trip back to Arkansas, the wife related the checking out operation to Faubion. The officers testified that Faubion started to make a statement to them which was not prompted. They contend they stopped him and gave him a complete warning of his rights as prescribed in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thereafter Faubion advised them there were two handguns in his luggage that belonged to a friend. He did not identify the friend. Faubion contends he was not given a warning before the statement was made.
  When the group arrived in Arkansas, the Faubions were booked and their luggage was opened and the two guns were found. An examination of the guns identified them as property stolen from the home of an Arkansas resident that had been burglarized a short time before the date of the foregoing events. Thereafter Faubion was indicted for the federal offense of interstate transportation of stolen firearms.
  The government’s evidence placed Faubion, his wife and another man at a motel resort in the Little Rock area at the time the home was burglarized and the guns stolen. The employees and operators of the motel resort identified Faubion and his wife. They also identified a pair of binoculars stolen from the burglarized home which had been found in the room occupied by the Faubions at the resort after they checked out. An attempt had been made to scratch the name from the binoculars. A close examination revealed the name of the owner who was the burglary victim. The motel operator also testified that while making beds she saw a rifle between the mattress of the bed in Faubion’s room. An employee testified Faubion showed him one of the handguns that looked similar to one of the stolen guns introduced in evidence. A vehicle similar to the one used by the Faubions while residents of the motel was located. A search of this.vehicle, which is not here objected to, disclosed a rifle stolen in the Little Rock burglary and similar to the one seen in the bedstead, a pillow slip with the mark of the linen supply company that accommodated the resort, and a white shirt with the laundry mark “Faubion” imprinted thereon.
  A taxi driver testified that he had driven Faubion around Fort Smith, Arkansas, the night preceding the apprehension. Faubion located the automobile described above at the jail compound in Fort Smith during this excursion and thereafter engaged the taxi driver to drive him to Tulsa, Oklahoma. On the way to Tulsa, Faubion’s wife became ill and they stopped and registered at "the motel where the two were later apprehended. Faubion offered a handgun similar to one in evidence as payment for the taxi ride. The driver did not accept it.
  Faubion denied the episodes at the motel resort, the interest in the vehicle at the police compound, and any knowledge of the theft of the guns found in his luggage.
  Evidence was introduced on his behalf to the effect that two former associates each with a criminal record had acquired the guns in question during a card game in Dog Patch, Oklahoma, the night before they met Faubion at the motel in Muskogee and that they left the guns with Faubion to examine with the idea of purchase in mind. Before Fau-bion could return them or pay for them as promised, he was apprehended as above described.
  The most serious issue with which we are concerned is the seizure of the handguns from the luggage. The government contends this seizure was part of the lawful warrantless arrest.
  The arrest may have been a legal warrantless arrest under Oklahoma law. Reed v. United States, 364 F.2d 630 (9th Cir. 1966), cert. denied, 386 U. S. 918, 87 S.Ct. 878, 17 L.Ed.2d 789 (1967), construing 22 Okla.Stat.Ann. § 196.
  In order to search without a warrant incident to arrest, the search must be contemporaneous both in time and place with the arrest. Welch v. United States, 411 F.2d 66 (10th Cir. 1969). The search in this case was not incident to arrest. Wood v. Crouse, 417 F.2d 394 (10th Cir. 1969).
  “Except as incident to a lawful arrest or on invitation or consent, a search, without a warrant, of portable personal effects in the immediate possession of their owner is illegal.” 79 C.J.S. Searches and Seizures § 66e (1952).
  The government contends the voluntary disclosure made by Faubion on the return trip to Fort Smith was an invitation or consent. The cases sustaining a search on invitation or consent are numerous, however, traditional language conveying the voluntary accession to the invasion is required. The statement by Faubion that there were two handguns in his luggage did not convey the voluntary assent to an invasion of the luggage. “[I]t is certain today that warrantless searches on probable cause are reasonable only when it is unfeasible to obtain a search warrant on proper affidavit * * United States v. Humphrey, 409 F.2d 1055, 1057 (10th Cir. 1969). The most that can be said to be conveyed by Faubion’s statement is that it would have been probable cause to sustain an affidavit for a search warrant.
  “The fact that the police have custody of a prisoner’s property for the purpose of protecting it while he is incarcerated does not alone constitute a basis for an exception to the requirement of a search warrant. Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 * * Brett v. United States, 412 F.2d 401, 406 (5th Cir. 1969). The language of Brett, swpra,, coincides with this court’s position in Humphrey, supra, which emphasizes the requirement of a warrant.
  It is contended that a search was not involved. To us this seems without merit because the luggage had to be invaded to seize the handguns. “The focus in Fourth Amendment cases today is on privacy rather than on property rights. E.g. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 * * Brett, supra, 412 F.2d at 406.
  The motion to suppress should have been sustained and the evidence refused. Because of the foregoing conclusion, the other contentions of appellant need not be considered.
  Reversed.
  . 15 U.S.C. § 902(g) was repealed and is now covered in 18 U.S.C. § 922(i). The repeal occurred before charges were brought in this case. However, by virtue of 1 U.S.C. § 109, the appellant’s liability under the repealed section was not affected.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.