The defendant Ulister Smith’s principal argument on appeal concerns the admissibility in evidence of certain items seized by the police in alleged contravention of his Fourth Amendment rights. The trial judge ruled that the items were admissible because the defendant’s attorney failed to make a timely pretrial motion to suppress and also because he concluded on the merits that the search of the defendant’s apartment was a valid search.

At 11 p.m., November 24, 1965, a police officer was shot as he attempted to pursue an apparent thief. His partner chased the unidentified man but did not apprehend him. The defendant was arrested the following day and later was charged with and now appeals his conviction of assault on the officer with intent to commit murder.1

Five hours after the shooting, at 4:30 a.m., three police officers went to the defendant’s three-room *363apartment looking for him. They were admitted by the defendant’s 17-year-old brother, "Willie Cassell, who lived there. Two of the three officers testified at the trial. They said that during this visit they obtained a single expended shotgun shell from a wastebasket in the bathroom. At 10 a.m. one of the officers who made the first visit and two other officers returned to the apartment for a second visit; at this time they obtained a box of unused shotgun shells. The police gave Cassell a receipt for the box of unused shells.

At the trial the officers identified a spent shell and unused shells as the ones they obtained at the defendant’s apartment and these were admitted in evidence over objection. The spent shell was compared with a shell found in back of the store near the scene of the shooting; both of these shells were shown to have been fired from the same gun. The gun itself was never found.

The police did not have a search warrant on either visit to the defendant’s apartment. On the first visit, they told Cassell that they were looking for his brother, the defendant, but they did not state the reason for their investigation. The officers asserted that on both visits Cassell voluntarily admitted them to the apartment. They contended that the shells were not discovered during the course of a search of the apartment. Bather, they said, on the first visit they asked Cassell whether the defendant had a gun and accompanied him as he went from one room in the apartment to another looking for a gun. They testified further that on the first visit Cassell produced the spent shell from a wastbasket in the bathroom.2 An officer testified that on the second *364visit Cassell obtained the box of unused shells from a dresser drawer in the bedroom and handed it to them.

Cassell testified that the police conducted a thorough search of the apartment and its contents, and themselves produced the spent shell from the wastebasket and obtained the box of unused shells from the dresser drawer. He asserted that he had never seen the spent shell before the police produced it.

The people argue that since Cassell voluntarily gave the police the shells there was no search and that even if the actions of the police could properly be characterized as a search and seizure, Cassell consented.

It is a familiar procedural rule that a motion to suppress must be made, if at all, in advance of trial. A trial judge is not obliged to turn aside from the trial of a criminal case to conduct a separate hearing-on admissibility in the absence of the jury, although, as a matter of discretion, he may do so. People v. Ferguson (1965), 376 Mich 90, 95. One of the questions before us is whether the refusal of the trial judge to conduct a separate hearing in this case was an abuse of his discretion.

At the trial the defendant’s attorney asserted that he had no prior knowledge that the police had obtained a spent shell in the defendant’s apartment. As previously mentioned a spent shell (not referred to in the receipt given (Cassell) was identified at the trial as having been fired by the same gun which fired a shell found near the scene of the shooting. The defendant’s attorney, Joseph E. McDonald, filed an affidavit in support of a motion for a new trial. He asserted that Cassell turned over to him the receipt for the unused shells during a pretrial inter*365view but did not tell him that a spent shell had also been obtained by the police.

Since the defendant’s attorney knew of the seizure of the unused shells and chose not to attempt to suppress that evidence, the trial judge was not obliged to entertain out of time an objection to the introduction of the unused shells.3 However, as to the spent shell a different view is taken.

The defendant was in custody from the time of his arrest the day after the shooting, November 25, 1965, until the trial, April 13, 1967. The facts that the police had visited the defendant’s apartment and had there obtained a spent shell were not brought out at the preliminary examination. There is nothing in the record showing that the defendant or his attorney had any reason before the trial to believe that such evidence had been obtained by the police. On the stand Cassell was an unresponsive, difficult witness. It is understandable that the attorney’s interview with him would not have brought to light the facts that the police had made two visits to the defendant’s apartment and that they had obtained, on the first visit, evidence not listed in the receipt given Cassell at the conclusion of the second visit.

The fact that the police had obtained the unused shells, which was revealed by the receipt, would not have alerted the attorney to the fact that other items not listed had been taken. Indeed, one examining the receipt could reasonably assume that all the *366items taken were listed. There is no reason to disbelieve the attorney’s assertion that he was unaware before the trial of the seizure of the spent shell.

The interest in the orderly conduct of a trial, which is the basis of the rule requiring that a motion to suppress be made in advance of trial, must be balanced against the defendant’s constitutional right to have illegally seized evidence suppressed. In a case such as this where the prosecutor has obtained important evidence and decides not to disclose that fact before introduction of the evidence at the time of trial and there is no reason for the defendant or his counsel to have been aware that such evidence has been taken, the defendant does all that he can constitutionally be required to do when he objects to the introduction of the evidence at the time it is offered in evidence and seeks an opportunity then to show that it was illegally seized.* 4

Having reached the conclusion just stated, the case would ordinarily be remanded for a testimonial *367hearing on the admissibility of the seized evidence. However, there is no need to adhere to that course of action in this case. In addition to his ruling that the defendant’s objection was untimely, the judge stated on two occasions during the trial and again in explaining his denial of the motion for a new trial that on the merits the evidence was properly obtained. The prosecutor has not asked for an opportunity to introduce additional evidence. At the trial three police officers who went to the defendant’s apartment and Willie Cassell were questioned extensively regarding the two visits.5 It does not appear that any additional relevant evidence would be forthcoming at a hearing following a remand.6

In denying a renewed motion to suppress made after Cassell testified at the trial, the judge stated:

“The defendant has the burden of proof on a motion to suppress [and] has not made out a case here.”

This was erroneous. On a motion to suppress evidence where the prosecution seeks to rely upon consent to justify a warrantless search, it has the burden of proving that the consent was in fact freely and voluntarily given.7

In reviewing a trial judge’s ruling on an issue involving asserted deprivation of a constitutional right, an appellate court is obliged itself to review the evidence and to make its determination guided *368but not controlled by tbe trial judge’s factual determination.8 In this case the trial judge’s determination is entitled to less weight than we would ordinarily give it since he imposed an improper burden of proof on the defendant.

The law regarding consent to a search by a defendant or a third party has been significantly affected by a fundamental shift in emphasis in the application of the Fourth Amendment9 announced by the United States Supreme Court:

“The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be ‘unreasonable’ within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.” Warden, Maryland Penitentiary v. Hayden (1967), 387 US 294, 304 (87 S Ct 1642, 18 L Ed 2d 782).

In other cases,10 in evaluating claims that constitutional rights have been waived, the United States *369Supreme Court and the Michigan Supreme Court have applied the familiar principle that waiver is the intentional relinquishment or abandonment of a known right.* 11 In People v. Shaw (1968), 9 Mich App 558, where we reversed a finding that the defendant had consented to a search, we spoke of the presumption against waiver of constitutional rights and stated that the basis for the rule which requires us to indulge every reasonable presumption against waiver is (p 562) “not far to seek. It rests on the plain fact of human experience that rights easily waived are rights easily lost.”

In People v. Overall (1967), 7 Mich App 153, our Court held that a third party may not consent to a search, even of premises occupied and owned by him, if the search constitutes an invasion of the privacy of another person upon whom an investigation has focused.12 Other courts have stated that *370for a consent to search to be valid the person who is the object of the investigation must have been aware of his constitutional right to refuse to per*371mit the requested search.13 Still other courts have ruled that unless a Miranda-type specific -warning related to Fourth Amendment rights is given a suspect in custody, his consent to a search will not be effective.14 Support for all these propositions ap*372pears in opinions of the Michigan Supreme Court. People v. Zeigler (1960), 358 Mich 355; People v. Kaigler (1962), 368 Mich 281 (per T. M. Kavanagh, J.); People v. Weaver (1928), 241 Mich 616.15

*373Application of the principles stated in Overall, Zeigler, Kaigler and Weaver requires reversal in this case and suppression of the evidence seized. Cassell could not consent to a search which had already focused on the defendant. Additionally, it is clear upon an examination of the record that the consent alleged to have been given by Cassell was not a knowing, freely-given, voluntary consent.

Returning to the facts of this ease, it is noted at the outset that, in recognition of the fact that the Fourth Amendment “protects people, not places,”16 minimal significance may he attached to the fact that the apartment occupied hy the defendant and Cassell was the defendant’s, not Cassell’s, and the defendant paid the rent and supported Cassell. More important is the totality of the facts and circumstances.17

Willie Cassell, a 17-year-old negro youth, was confronted by three policemen at 4:30 a.m. Even if, as the police assert, he produced the spent shell and unused shells, this must have been, as the police testified, in response to a request by the police. The defendant’s right of privacy in the contents of his dresser drawer where the unused shells were found is entitled to the utmost protection; it is not to he lightly waived.18 A consent to he valid must he a voluntary consent,19 and this, hy definition, means *374knowledgeable agreement or acquiescence (see text accompanying footnote 10). Cassell, as the police officers’ own testimony show’s, was not informed of the purpose of the investigation. He was not advised that he could refuse to permit a search.20 These facts, together with Cassell’s age, the hour of the police officers’ arrival and the attendant coercive atmosphere neg'ate a finding of voluntariness. It is idle to suppose that Cassell would have in any way interfered with the police officers.21 *375Looking at the totality of the facts and circumstances, Cassell’s responses to the police request did not constitute a voluntary waiver of the defendant’s constitutional right to be protected from an unreasonable search and seizure.

The wounded officer identified the defendant at a one-man showup on December 16, 1965, and at the trial but could not identify him in a five-man lineup on November 26,1965, just two days after the shooting. His partner could not identify the defendant. Although there was other circumstantial evidence implicating the defendant it cannot be declared beyond a reasonable doubt22 that the defendant would have been convicted even if the illegally seized shells had not been introduced in evidence. Accordingly, the error was not harmless.

Another assignment of error needs to be mentioned because it concerns a matter likely to recur upon a retrial. Questions were put to Willie Cassell about his extrajudicial statements concerning shoes alleged to have been worn by the defendant. The prosecutor referred to this testimony in his argument to the jury. The testimony regarding the shoes was confusing and the prosecutor’s argument may well have exceeded permissible bounds. On remand the testimony and argument should be kept within the limits set out in Ruhala v. Roby (1967), 379 Mich 102.

Reversed and remanded for a new trial.

Judge Holbrook concurs for the reason that the search and seizure was illegal. The fact that the minor brother of the defendant furnished the spent *376shell and unnsed shells under the direction of the police does not make it any the less a search and seizure.

(dissenting). The opinion of the majority is predicated upon the assumption that there was in fact a search in this particular case. It is with this assumption rather than the opinion that I disagree.

The trial judge said when he denied the motion for a new trial:

“Although there was some conflict, partly as a result of defendant’s brother changing some of his previous statement to the police, the great weight of the evidence indicated that there was no unlawful search or seizure in this case.

“Unlike the cases cited by defendant’s counsel, when the police here went to defendant’s apartment to talk to defendant, defendant’s teen-age brother opened the door, invited them into the apartment, and in answer to their questions about defendant, got the exhibits and gave them to the police, took a receipt for them.

“It is the opinion of this court both at the trial and now that the evidence which is on the record in this case, shows no search and seizure of defendant’s premises in his absence, but a voluntary offer of the shells to the police by defendant’s brother, who was in sole charge of the apartment and the premises at the time and apparently was trying to cooperate in establishing the innocence of the defendant of this offense or of any offense. (Emphasis supplied.)

“That the shells were later found to be material, circumstantial evidence in the case, did not make their original acquisition illegal or require that they be suppressed, in the opinion of this court, even if a timely motion to that effect had been presented in advance of trial.”

*377The record discloses a conflict in testimony between the police officers and defendant’s brother, Willie Cassell. And, since Willie Cassell repeatedly admitted on the witness stand that he had lied to the police in earlier statements it was for the trial judge to determine the question of credibility, and he made this determination in favor of the police officers. I cannot say that upon this record that such determination was clearly erroneous.

This Court follows the “plain view” rule that where an officer sees the evidence in open or plain view without the necessity of a search, the evidence is admissible as no search has occurred, People v. Kuntze (1963), 371 Mich 419; People v. McDonald (1968), 13 Mich App 226.

The case of Davis v. United States (CA9, 1964), 327 F2d 301, is factually similar to the instant case. Davis’ eight-year-old daughter admitted two customs agents and two policemen to his home. One of the agents observed a wastebasket in plain view containing what the agent recognized as marihuana. The court said, pp 304, 305:

“It is obvious from its denial of defendant’s motion to suppress that the trier of the fact credited the testimony of the officers that they had gone to defendant’s home solely for the purpose of talking to him — and not for the purpose or intent of entering and searching the premises or arresting him, without a warrant. Likewise, it is certain that he believed the officers’ testimony as to the manner of entry into the house and that the intent of the officers at the instant of entry was still but to attempt to talk to the defendant. * * *

“This case is distinguished from all of the cases referred to by appellant, by the entirely peaceful and invited entry into the home, with no search or intent to search in the minds of the officers upon entry. However, once legally inside the room, the *378officers were not required to remain blind to tbe obvious. Tbe fact that a wastebasket containing marihuana was in their plain sight within five feet of the door at the time that they entered and that another wastebasket containing marihuana was in plain sight in the bathroom at that time was uncontradicted by the defendant when he testified on the motion to suppress. ‘It is well established that it is not a search to observe what is open and patent either in daylight or in artificial light.’ (Citations omitted.) As was said by Judge Holtzoff, (citations omitted) ‘if, without a search and without an unlawful entry into the premises, a contraband article * * * is seen in the premises, the police are not required to close their eyes and need not walk out and leave the article where they saw it.’ ”

While it is true that the agents and the police officers in the Davis Case, supra, went to defendant’s house in the daytime and not at night, I do not find that this factual difference should be controlling. There is nothing to indicate that the officers conducted themselves in anything other than a lawful manner. To imply, as it is done by the majority, otherwise is unfair.

In State v. Brant (1967), 260 Iowa 758 (150 NW 2d 621) the court held that where the defendant consented to officers entering his hotel room and one officer picked up defendant’s coat and saw a gun sticking out of the inside pocket there was no search and the officer could properly seize that which was readily observable.1

This case might also be considered as one in which if there was a search it was by the defendant’s brother as a private citizen who then handed *379the particular items in question to the police, and thus, there was no search by police officers.* 12

Either way I cannot find upon this record that a search was conducted by the police officers so as to preclude the introduction into evidence of the spent shell or the unused shells. I would affirm.