The opinion
On Rehearing
CATES, Judge.
The Attorney General cites us to: Feguer v. United States, 8 Cir., 302 F.2d 214 , Abel v. United States, 362 U.S. 217 , 80 S.Ct. 683 , 4 L.Ed.2d 668 , Hester v. United States, 265 U.S. 57 , 44 S.Ct. 445 , 68 L.Ed. 898 , and Newingham v. United States, 3 Cir., 4 F.2d 490 .
Feguer v. United States, supra, 302 F.2d at 247 , gives grounds for searching the car stolen from the victim of Feguer’s kidnapping. Beyond Feguer’s and York’s driving cars, all correspondence between the cases ends.
The searching of the room Feguer had formerly rented in Dubuque has no application to a hypothetical search which might have been made of York’s car while it was off the road m the plum thicket. The cases cited by the Eighth Circuit (e. g., Abel, supra, and Jones v. United States, 362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 ) not only, are not concerned with vehicles but are modified by Stoner v. California, 376 U.S. 483, 486 , 84 S.Ct. 889 , 11 L.Ed.2d 856 . See also Anno. 86 A.L.R.2d 984 .
*57 Hester v. United States, supra, involved an officer picking up a thrown away jug still holding about a quart of whiskey. Hester had discarded the jug' — probably hoping to break it — while running through an open field. Holmes, J., held this act “was no seizure in the sense of the law.”
Newingham v. United States, supra, concerned use of papers in evidence. Some had been taken from a desk. The court found it “clear that the defendants had abandoned them.”
The mere finding of an automobile stalled alongside or near a road is not alone sufficient to say that the owner has abandoned it. Beyond this we need not conjecture, since here the sheriff made his seizure not at the plum thicket but in the shadow of the courthouse.
Application overruled.