KAUFMAN, P. J. Appellant was charged by information with the possession of marijuana in violation of Health and Safety Code, section 11500. This appeal is taken from the judgment of conviction entered on a jury verdict and from the order of the court denying appellant’s motion for a new trial.
On July 2, 1956, this court reversed a prior decision of the trial court on the same count. (142 Cal.App.2d 728 [299 P.2d 310].) The Supreme Court denied a hearing on August 2, 1956. On receipt of the remittitur, the clerk of the Superior Court of Contra Costa County calendared the matter for a new trial. Appellant, through his counsel, moved to withdraw his plea of not guilty and to dismiss, vacate and set aside the prior information (No. 5704), which motions were granted on September 4, 1956. On the same date, the district attorney filed a new information (No. 6032), identical with Number 5704 and based upon the same “evidence” as the first complaint. A motion to dismiss the new information was made and denied. Appellant entered a plea of not guilty, and the trial proceeded. The issue on this appeal, as on the prior one, in the legality of the arrest and search and seizure.
The first question is whether the doctrine of the law of the case is applicable here. It is well established that the doctrine applies to criminal cases as well as civil (People v. Walker, 76 Cal.App. 192 [244 P. 94]; People v. Marshall, 209 Cal. 540 [289 P. 629]) and to questions involving the admissibility of evidence. (United States v. Davis, 3 F.Supp. 97.) The rule is applicable where the facts are substantially identical and appear under the same circumstances. (Leese v. Clark, 20 Cal. 387; Klauber v. San Diego St. Car Co., 98 Cal. 105 [32 P. 876]; Nieto v. Carpenter, 21 Cal. 455.) To determine its applicability we have examined the record submitted on the prior appeal, (Sharon v. Sharon, 79 Cal. 633 [22 P. [51926], 131]; Eversdon v. Mayhew, 85 Cal. 1 [21 P. 431, 24 P. 382]; Stanton v. French, 91 Cal. 274 [27 P. 657, 25 Am.St.Rep. 174]; Otten v. Spreckels, 183 Cal. 252 [191 P. 11].)
After an analysis of that record, we have concluded that the facts here are substantially the same as those of People v. Harvey, 142 Cal.App.2d 728 [299 P.2d 310], wherein they were stated as follows:
“On the evening of October 28, 1954, police officers Aiello and Russo of the Pittsburg Police Department were instructed . . . to go on a ‘stake-out’ in the vicinity of appellant Harvey’s residence. They were told that appellant had been under surveillance by the department for some time and that he was believed to be dealing in narcotics. They were to observe appellant’s residence and appellant if he should appear. If they believed that ‘something was wrong’ they were instructed to place appellant under arrest.
“About 8:30 p. m., the police officers arrived at the stakeout. They concealed themselves across the street from appellant’s residence behind a tree. A few minutes later appellant arrived ... in a 1950 Cadillac . . . and apparently stood by it a little while. A blue eoupé approached and parked just behind appellant’s ear. Appellant walked up to the occupant of the coupé, who remained in his car, and talked with him several minutes. The coupé then drove away. Appellant walked across the street toward his residence. He looked at something that was on the windshield of another car and then disappeared from the officers’ view.
“A few minutes later the officers saw appellant coming down an outside flight of stairs from his upstairs apartment. Appellant stood for a few seconds at the foot of his stairs looking up and down the street with his hands in his overcoat pockets. He crossed the street to where the officers were standing behind the tree. Appellant looked up and down the street. The officers then decided to take him into custody. Officer Russo testified: ‘We thought something was wrong.’
“The officers testified that they identified themselves as officers, showed their police badges and asked appellant to take his hands out of his pockets. Appellant did not comply but backed off from the officers. A struggle ensued. Three other officers arrived and appellant was subdued. All of the police officers were in civilian clothes. Officer Russo took a package from appellant’s hand which was later found to contain marijuana.
[520]“At the trial the package containing marijuana taken from appellant at the time of his arrest was introduced into evidence. Marijuana was also found after his arrest in the Cadillac car driven by appellant and traces of marijuana were found on the clothing worn by him when he was arrested. This was also introduced into evidence.”
In the instant case, timely and proper objections were made to the introduction of the evidence.
On the former appeal, the appellant contended that the marijuana was attained by an illegal search and seizure, with which the court agreed, pointing out at page 731 as follows: “When the officers stepped from behind the tree and approached the defendant with the avowed purpose of placing him under arrest they had no legal ground for arresting him. His conduct up to that time was such as any man may legally engage in on a public street without arousing suspicion of misconduct. He had parked his car, talked to a person in another car, looked at something on the windshield of a third car, gone into his house, left his house again with his hands in his pockets, crossed the street and stood on the sidewalk looking up and down. These were all innocent actions that any law-abiding citizen should be able to engage in without fear of search or arrest. The fact that defendant was believed to be dealing in narcotics, added to such innocent conduct as the officers observed, was not sufficient to justify defendant’s arrest without a warrant. The case in this respect was no stronger than that in People v. Sanders, 46 Cal.2d 247 [294 P.2d 10], where the court held that the fact that the defendant was a known bookmaker did not justify his arrest when he was seen writing upon a pad which might be innocently used by any businessman in the lawful conduct of his business. . . .
“The difficulty with this argument is that the police officers were not interrogating the defendant, but by their own unqualified testimony they were arresting him. Aiello testified that just before they stepped out from behind the tree: ‘I says, “Shall we place him under arrest” and he says, “Okay,” so I walked out first.’ Russo testified, ‘we nudged each other and says, “Let’s place him into custody.” ’ ” In the instant case, the testimony of the officers was exactly the same as to the circumstances of the arrest, except as to their above statements to each other just before the arrest.
When asked why appellant had been arrested, the officer testified, “for the marijuana he was carrying,” and [521]that he did not see the marijuana on the appellant until after the arrest when Officer Eusso pulled it out. Here, as in the prior case, the officers had no reasonable cause to know that the defendant was carrying any marijuana until after they arrested and searched him. The testimony of the officer relating to the arrest is as follows: “Well, we observed him for a few moments to see what he was up to. We saw that he was waiting for something or somebody, possibly a contact and we thought we would place him under arrest.”
The court below found that the officers had reasonable and probable cause for the arrest because they were arresting on the basis of information received from a reliable informant. The record, however, does not substantiate the finding of the trial court. First, the evidence relating to the informant is of a very vague nature. One of the arresting officers testified that he had only seen an informant (who had worked on a different case) talking to his superior officer. The officer admitted that he did not hear the conversation and did not know what it was about. Later, the officer stated that he did not remember whether the supposed informant had provided him with any information about the appellant. Second, the record clearly indicates that the arrest was made solely in reliance on the information and briefing from Inspector Schillaee.
Under Penal Code, section 836, an officer may make an arrest if he has reasonable and probable cause to believe that a felony has been committed or for a misdemeanor committed in his presence. It has been repeatedly held in this state that if reasonable cause justifying an arrest does not exist at the time of the arrest, an arrest cannot be justified by what a search which follows produces. (People v. Brown, 45 Cal.2d 640 [290 P.2d 528]; People v. Gale, 46 Cal.2d 253 [294 P.2d 13]; People v. Goodo, 147 Cal.App.2d 7 [304 P.2d 776]; People v. Thymiakas, 140 Cal.App.2d 940 [296 P.2d 4].) The record-is devoid of any proof that the appellant was a known narcotic addict or seller, or that he had been previously arrested. Eather, one of the officers testified that the appellant had been under surveillance for about a year, that he had seen him during the last year, either parked or driving his car, during which time he never saw the appellant do anything wrong.
Eespondent here produced only additional evidence newly cumulative to that given on the first appeal. (Estate of Baird, 193 Cal. 225.) Therefore, we can only reiterate our [522]former conclusion: “Prom the testimony of the officers it is clear that they approached the defendant, identified themselves to him as officers and requested him to remove his hands from his pockets as a step in his arrest, which they had already determined upon. They had no intention of interrogating him. They had already decided to arrest him and were carrying out that decision. Since the arrest was illegal their illegal conduct cannot become legal by what was disclosed while they were engaged in making the illegal arrest. (Citations.)” (142 Cal.App.2d 728 at 731-732.)
In view of the above, it is not necessary to discuss appellant’s other contentions.
Judgment reversed.