(dissenting) :

I dissent. I would think that we would be justified in upholding the searches under Harris v. United States, 331 U.S. 145 , 67 S.Ct. 1098 , 91 L.Ed. 1399 , and United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 . I do not think Trupiano v. United States, 334 U.S. 699 , 68 S.Ct. 1229 , 92 L.Ed. 1663 , compels the result the majority reaches. It is my belief, on the testimony most favorable to the government, the searches were reasonable.

The appellants have other points for reversal which I do not accept, but *55 since the majority does not reach them, neither do I.”

Olí May 20, 1965, appellee United States of America filed a petition for rehearing entitled Ralph A. Vanella, Appellant, vs. United States of America, Appellee, a copy of which petition is set out in the footnote. 1 At oral argument *56 government counsel contended that the rehearing petition applied to Sullivan, also. There is nothing in the petition to indicate that Sullivan was included therein. The petition does not mention Sullivan nor set forth any reason why the reversal of Sullivan’s conviction should be set aside. Therefore, since the judgment as to Sullivan is not before us on rehearing, the ruling as to him is the law of the case. Cosgrove v. United States, 224 F.2d 157 (9th Cir. 1955) (rehearing).

Thereafter, Judges Chambers, Orr and Hamley directed a request to appellee which stated in part as follows:

In response to the above request, appel-lee and appellant each filed a memorandum. Thereafter, and prior to the time that any order had been made, either granting or denying the rehearing, Judge William E. Orr died. In order to fill the panel to pass upon the petition for rehearing, Chief Judge Chambers directed that the name of one of the remaining judges of the United States Court of Appeals for the Ninth Circuit be drawn by lot and such judge be assigned to serve with Chief Judge Chambers and Judge Hamley to pass upon and determine the petition for rehearing and to take such further action in the case as may be necessary. The writer of this opinion was chosen by lot and the present panel then, after having reconsidered the briefs then on file, made an order on the 10th day of December, 1965, granting the rehearing. The case was then set on the calendar for reargument before the present panel. Additional briefs were filed by the parties and the case was argued before this panel on August 1, 1966, whereupon the case was submitted for decision.

On rehearing it was established that the statement made in appellant’s brief and not denied by appellee to the effect that “Vanella was arrested for an alleged crime which was committed almost a year earlier” was in error.

The record shows that in fact the indictment upon which the arrest was based charged Vanella with being in a conspiracy to violate the narcotic laws which conspiracy commenced on January 1, 1962, and continued to the date of the indictment’s filing on February 14, 1963. A warrant for Vanella’s arrest was issued also on February 14, 1963, and Vanella was actually arrested about 9 p. m. of the same day. It thus appears now that the court was in error when the court stated in its opinion: “The indictment upon which the warrant for his (Vanella’s) arrest was based concerned an alleged conspiracy that occurred more than a year previous.” Inasmuch as the conspiracy to violate the narcotic laws was alleged in the indictment to have existed up to the day of the filing of said indictment and the day of Vanella’s arrest, it now appears that there was a rational connection between the search of Vanella’s premises and the crime for which he was arrested, and such search was not unreasonable as an incident of his arrest. United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 (1950); Harris v. United States, 331 U.S. 145 , 67 S.Ct. 1098 , 91 L.Ed. 1399 (1947); Leahy v. United States, 272 F.2d 487 (9th Cir. 1960).

It was not unreasonable for the officers pursuant to a valid arrest to search Vanella’s house looking for the fruits and instrumentalities of an illicit marihuana trade. The indictment not only charged Vanella with participating in a current conspiracy to violate 21 U.S.C. § 176a, but also charged other members of the conspiracy with committing overt acts in furtherance of the conspiracy. The fact that Vanella was not *57 charged with having committed any overt acts involving possession of the fruits or instrumentalities of the conspiracy does not preclude a reasonable belief that Van-ella could possess such items in his household. The search and seizure here was made specifically to discover and obtain marihuana, and was not a general exploratory search and seizure for papers and other items which are unoffending in themselves but could be used as evidence for conviction. This latter type of general exploratory search was held to be unreasonable in United States v. Lefko-witz, 285 U.S. 452 , 52 S.Ct. 420 , 76 L.Ed. 877 (1932) and in Go-Bart Importing Co. v. United States, 282 U.S. 344 , 51 S.Ct. 153 , 75 L.Ed. 374 (1931). See United States v. Rabinowitz, supra, 339 U.S. at 62-63 , 70 S.Ct. 430 . The former type of search was sanctioned in Rabinowitz and Harris .

The original opinion held that the search of Sullivan was illegal and the finding of marihuana on him could not be used as a justification for searching Vanella’s house. As previously noted that holding is binding on this rehearing. However, we hold that the search of the house was reasonable and justifiable on the grounds discussed above which are wholly independent of the Sullivan search. The illegal search of Sullivan does not vitiate an otherwise lawful search.

In view of the reliance in the original opinion on the erroneous statement of fact in appellant’s brief as to the date of the conspiracy, it was not necessary for the original opinion to reach or pass upon the further contention made by appellant, to-wit, that the arrest of Vanel-la and the subsequent search of his home “was vitiated by the forceful entry of Agent Greppin and Officer Falbaum since they failed to state their authority and purpose as required by law, nor had they expressly demanded and been refused entrance.” We will now give our attention to this point.

The record shows that when Agents Greppin and Falbaum went to Vanella’s residence they first ascertained through a window that Vanella was present in the house. Falbaum stationed himself at a corner of the building near the rear of the house from which he could observe both the front and rear doors. Greppin went to the front door and knocked on the door. After a short time a window on the side of the house opened and a woman later identified as Mrs. Vanella stated, “Who is it?” Greppin answered that he was Neil Greppin, and when the woman asked, “Who do you want?” he stated, “I want to see Ralph; I am from U. S. Customs.” The woman then shut the window and Greppin stood there for a couple of minutes. The next thing that Greppin heard was Agent Falbaum calling out, “They are getting out the back.” Agent Greppin testified “At that time I felt that it was better that I enter the front door. If I went to the back and assisted him, they might have retreated and gone back into the house and exited out the front door. This happened. So that’s why-the act of forcing the front door took place.”

Agent Falbaum testified to what he saw and did from his vantage point at the corner of the house. He stated that he saw Greppin go up to the front door and he appeared to be talking to someone at a window. Thereafter he saw Vanella come out the back door and go down the steps. Falbaum called out, “Ralph,” and Vanella say, “Yes?” Falbaum started to walk toward Vanella and said, “I would like to talk to you.” Immediately Vanella turned and ran up the steps as fast as he could. Falbaum, who had been some fifteen or twenty feet from him, ran after him and entered the back door, which was ajar, about a step or two behind Va-nella. Vanella ran into Sullivan who was heading for the back door. After Fal-baum was in the house, or simultaneously with his entering the house, he heard a noise at the front door which evidently was Agent Greppin forcing the front door. Vanella was then placed under arrest. Falbaum estimated that it was not much longer than five seconds from the time he saw Vanella on the steps until Falbaum went into the house.

*58 Appellant contends that under the above facts the arrest was not valid because the entry was not made according to law. We disagree. 18 U.S.C. § 3109 provides:

These provisions also apply to an arrest with or without a warrant. Miller v. United States, 357 U.S. 301, 309 , 78 S.Ct. 1190 , 2 L.Ed.2d 1332 (1958). Under the circumstances of an arrest by a federal officer for a federal offense this court has applied the criteria of section 3109 to determine the lawfulness of entry before an arrest. Ng Pui Yu v. United States, 352 F.2d 626 (9th Cir. 1965); McClure v. United States, 332 F.2d 19 (9th Cir. 1964).

While the district court held that both entries were lawful under the circumstances, it is not necessary to rely on Greppin’s entry through the front door to validate Vanella’s arrest. It is sufficient if Falbaum’s entry was lawful. 'Because, according to the testimony of the agents, Falbaum’s entry was made either before or simultaneously with Greppin’s entry through the front, Vanella can not complain that his right to be secure in his home has been violated so long as the first or one of the contemporaneous entries was lawful. Cf. Cognetta v. United States, 313 F.2d 870 (9th Cir. 1963); United States v. Viale, 312 F.2d 595 (2d Cir. 1963).

The district court pointed out that Falbaum entered an open door in hot pursuit of Vanella when the latter, having gone out the back way “trying to escape,” suddenly turned and ran back up the steps into the house upon seeing and being spoken to by Falbaum. There was no breaking of the back door. It was ajar. In Ng Pui Yu v. United States, supra, this court had occasion to consider the validity of an entry to make an arrest where the entry was made through an open door without the prior announcement indicated in section 3109. We there held that there was no “breaking” and “that appellant’s consent to the entry was not required and the entry made through the open door was not made in violation of 18 U.S.C. § 3109 .” 352 F.2d at 632 . Other circuits are in accord with this holding. See United States v. Conti, 361 F.2d 153 (2d Cir. 1966); United States v. Williams, 351 F.2d 475 (6th Cir. 1965) 2 We likewise hold here that Falbaum’s entry into the house was proper and the arrest of Vanella immediately thereafter was valid.

This panel having thus held that the arrest of Vanella was valid and that the search of his premises after his arrest was a proper incident of his arrest and had a rational connection therewith,

It is ordered that so much of the opinion of this court dated April 20, 1965, which held that the search of the home of Vanella was unreasonable and in violation of the Fourth Amendment to the Constitution of the United States and that the narcotics found therein and which were the basis of the charges against Vanella should not have been received in evidence, be and the same is set aside.

The charge in Count 1 of the indictment covered the marihuana that was *59 found on the person of Sullivan. Counts 2 and 3 referred to two separate packages of marihuana found in Vanella’s house — one in his bathroom and one in his bedroom. The district court found Vanella guilty on all three counts and found Sullivan guilty on Count 1 and not guilty on Counts 2 and 3.

The judgment of conviction of Sullivan and Vanella on Count 1 remains reversed. The judgments of conviction against Vanella on Counts 2 and 3 are affirmed. 3

. “IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Ralph A. Vanella, vs. United States oe Ameeica, Appellant, Appellee. No. 19,270

Petition for Rehearing

Appellee, United States of America, respectfully petitions this Honorable Court for a rehearing of the appeal in the above-entitled case for the following reason. Appellant, Ralph A. Vanella, no doubt in good faith, but inadvertently, stated in his argument that the crime for which appellant Vanella was originally charged in Indictment No. 31823 was committed on or about January 1, 1962, which would have been over a year prior to appellant’s arrest on Indictment No. 31823. (See App.Op.Br. p. 54.)

Appellee must bear heavy responsibility for inadvertently failing to correct the erroneous assertion. From this Court’s Opinion, it is obvious that that fact was essential to the Court’s result. At page 4, the Court said,

‘ * * * The indictment upon which the warrant for his arrest was based concerned an alleged conspiracy that occurred more than a year previous. In view of this a search of Vanella’s entire residence had no apparent rational connection to the alleged conspiracy for which Vanella was indicted and arrested. Such a search therefore cannot be justified as a search incident to an arrest on the charge in the indictment. * * * ’

Yet the Clerk’s Transcript, pages 30 through 33, demonstrates that the assertion is incorrect. In actuality, the indictment charged that the conspiracy in which appellant Vanella was named as a defendant commenced on January 1, 1962, Tnit continued to the date of the indictment which was February 14, 1963. February 14, 1963 was the date that appellant Vanella was arrested by Federal agents. [R.T. 27.] The overt acts charged in Indictment No. 31823 cover a period of over eleven months. The last one specified took place on February 5, 1962. [C.T. 30-33.]

With this correction of the record, it is respectfully submitted that United States v. Rabinowitz, 339 U.S. 56 , 70 S.Ct. 430 , 94 L.Ed. 653 (1950), and Harris v. United States, 331 U.S. 145 , 67 S.Ct. 1098 , 91 L.Ed. 1399 (1947), should control this case.

Respectfully submitted, MANUEL L. REAL

United States Attorney,

JOHN K. VAN DE KAJVIP Assistant United States Attorney, Chief, Criminal Division,

J. BRIN SCHULMAN Assistant United States Attorney, Assistant Chief, Criminal Division,

BENJAMIN S. FARBER Assistant United States Attorney, Attorneys for Appellee,

United States of America”

[Footnotes omitted]

. Two cases in the D.C. Circuit have indicated that entry through an open door for the purpose of arrest is not a lawful entry without consent or without being preceded by announcement. Hair v. United States, 110 U.S.App.D.C. 153 , 289 F.2d 894 (1961); Keiningham v. United States, 109 U.S.App.D.C. 272 , 287 F.2d 126 (1960). This circuit expressly refused to follow that line of cases in Ng Pui Yu, supra.

See also Dickey v. United States, 332 F.2d 773 (9th Cir. 1964) (entry obtained through the use of a ruse was not unlawful) ; Leahy v. United States, 272 F.2d 487 (9th Cir. 1960) (same).

. The appellant also argued at the time of the original appeal that he should have been allowed to investigate the probable cause for the issuance of a warrant for his arrest, and that it was error for the court below not to allow him to view the minutes of the grand jury which returned the original indictment against him for that purpose. It is well settled that a defendant will not be allowed to challenge the inadequacy or incompetency of the evidence upon which a grand jury bases its indictment. So long as the indictment is valid on its face and the grand jury was legally constituted and unbiased, the defendant can not challenge the indictment’s sufficiency. Costello v. United States, 350 U.S. 359 , 76 S.Ct. 406 , 100 L.Ed. 397 (1956). Giordenello v. United States, 357 U.S. 480 , 78 S.Ct. 1245 , 2 L.Ed.2d 1503 (1958), relied upon by appellant does not support his position, but rather it states that a defendant can not challenge the probable cause for arrest which is based upon a grand jury indictment, 357 U.S. at 487, 78 S.Ct. at 1250.