PETERS, J. I dissent.
The majority concede as they must that “the Pesces became available as witnesses against petitioners as a result of the Pesces’ and petitioners’ connection with the illegally seized gun. Moreover, there is no evidence that without the lead supplied by the gun, the police investigation of petitioners would have led them to the robbery report or suggested to them that petitioners might be guilty of the Pesce robbery.” Thus the majority concede the direct, immediate, and necessary causal connection between the unlawful conduct and the testimony secured.1
[172]Notwithstanding the direct,' immediate, and necessary causal connection between the unlawful police conduct and the testimony sought to be suppressed, the majority conclude that the testimony will be admissible. The majority rely upon the fact that the officers in conducting the unlawful search were not seeking evidence to connect petitioners with the Pesce robbery and claim that the purposes of the exclusionary rule are adequately served by suppression of the - gun and would not be further advanced by suppression of the testimony. Neither of the matters relied upon by the majority furnish a valid basis for refusal to apply the exclusionary rule to the testimony sought to be suppressed.
The majority have forgotten the long and bitter lesson of history which led to the adoption of the exclusionary rule in order to protect rights guaranteed by the Fourth and Fourteenth Amendments. This court in People v. Cahan, 44 Cal.2d 434 [282 P.2d 905, 50 A.L.R.2d 513], and the United States Supreme Court in Mapp v. Ohio, 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684], adopted the exclusionary rule only after a lengthy experience with the results of the admission of illegally obtained evidence and the fruits of such evidence. That experience had taught that there was no effective sanction to prevent overzealous law enforcement officials from engaging in unlawful searches and seizures in violation of the constitutional guarantees and that to permit admission of the evidence furnished an incentive for officials to violate the constitutional guarantees of all citizens. (See, e.g., Mapp v. Ohio, supra, 367 U.S. 643, 670 [6 L.Ed.2d 1081, 1098] [Douglas, J., concurring]; People v. Cahan, supra, 44 Cal.2d 434, 449.)
To make the constitutional guarantees meaningful the exclusionary rule was adopted. It was adopted not to vindicate the constitutional rights of lawbreakers, but to protect the constitutional rights of all citizens, especially the innocent, in the only way those rights could be effectively protected, by removing the incentive of officials to engage in unlawful searches and seizures. “By denying any profit from the unconstitutional methods of law enforcement, it is to be anticipated that law enforcement officials will have no incentive to engage in such methods.” (People v. Moore, 69 Cal.2d 674, 682 [72 Cal.Rptr. 800, 446 P.2d 800].)
It was recognized that by the adoption of the exclusionary rule some criminals would go free because they could not be convicted without evidence obtained by violation of our constitutional guarantees. It was also [173]recognized that other criminals might go free because, although the evidence necessary to convict might have been obtained by lawful means, it was not. (People v. Cahan, supra, 44 Cal.2d 434, 438, 449.) We pointed out, however, that when the constitutional provisions were adopted “the choice was made that all the people, guilty and innocent alike, should be secure from unreasonable police intrusions, even though some criminals should escape,” and that “it would be manifestly impossible to protect the rights of the innocent if the police were permitted to justify unreasonable searches and seizures on the ground that they assumed their victims were criminals.” (People v. Cahan, supra, 44 Cal.2d 434, 438-439.) We adopted the rule excluding evidence secured by unlawful searches and seizures “because other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers. . . .” (Id., at p. 445.)
Once we restore any profit to the unlawful search or seizure, as the majority do today, we furnish an incentive for law enforcement officials to engage in unconstitutional methods of law enforcement, and the danger of the use of such methods extends to the citizenry generally, including the innocent. In order for the exclusionary rule to be effective in deterring unconstitutional searches and seizures, it is not enough to remove some of the profit of such searches and seizures; all of the profit must be removed, for law enforcement officials, faced with a situation which permits any gain from the unlawful conduct, however remote, are furnished an incentive to violate the constitutional guarantees. It is for these reasons that we must exclude not only the evidence unlawfully seized but also the “fruits” of such evidence. (Wong Sun v. United States, supra, 371 U.S. 471, 484-487 [9 L.Ed.2d 441, 452-455].)
In other words, no compromise can be permitted in the enforcement of the exclusionary rule where the compromise will permit profit from the unlawful conduct, and denying part of the profit, but not all, will frustrate the entire purpose of the exclusionary rule. For these reasons, I cannot agree with majority conclusions that the purpose of the exclusionary rule to deter unlawful police conduct is adequately served by suppressing the gun and that the suppression of the testimony would not further advance the purpose of the exclusionary rule. In my view, unless we suppress all of the evidence obtained as a direct, immediate, and necessary result of the unlawful police conduct, we furnish an incentive to violate the constitutional guarantees, and suppression of the gun alone without suppression also of the evidence obtained as a direct, immediate and necessary result of the unlawful seizure of the gun, does not adequately serve the purpose of the exclusionary rule but defeats it. [174]Nor can I agree that the fact that the police were not searching for the gun or other evidence relating to the Pesce robbery should somehow render the evidence admissible. The general search has long been condemned. (Aday v. Superior Court, 55 Cal.2d 789, 796 [13 Cal.Rptr. 415, 362 P.2d 47]; People v. Berger, 44 Cal.2d 459, 461 [282 P.2d 509]; People v. Mayen, 188 Cal. 237, 242 [205 P. 435, 24 A.L.R. 1383]; Entick v. Carrington (1765) 19 Howell’s State Trials 1029.) Where a search is made pursuant to a warrant which is lawful in part but unlawful for overbreadth in other parts, seizure of property pursuant to the lawful part of the warrant is lawful, but the property seized pursuant to the overly broad part must be suppressed. (Aday v. Superior Court, supra, 55 Cal.2d 789, 796-797.) The majority today tell us that where the search is in all respects invalid the fruits of the search as to matters sought will be suppressed but the fruits of matters not specifically sought will be admissible. In other words the wrongful act of the officer of unlawfully searching when coupled with the further wrongful search for matters for which there is no reason whatsoever to search somehow permits use of the fruits of the wrongful conduct. There is more than a bit of truth in the ancient saying that two wrongs do not make a right, and common sense dictates that the prosecution should not be in better position because the officer unlawfully entered and then engaged in a general search and seizure than it would be if the officer had unlawfully entered and engaged in a specific search. Moreover, and perhaps more importantly, the majority’s position in granting significance to the fact that the officers were not searching for the gun can only have the effect of providing an incentive for law enforcement officials, particularly members of the robbery detail, who entered unlawfully or have failed to find the evidence or contraband sought, to expand their search in the hope of finding evidence to connect the victim of the search with some other offense. Providing such incentive is contrary to the policy against general searches and subverts the purpose of the exclusionary rule to deter unlawful searches and seizures.
Finally, I must call attention to the fact that the decision of the majority today relates not so much to searches where law enforcement officials have probable cause to believe the victim of the search guilty of crime but to searches where there is no such probable cause. Where there is probable cause, law enforcement officials will often be deterred from unlawful conduct from a fear of jeopardizing their right to obtain evidence which could be lawfully seized. No such fear ordinarily prevents an officer from searching when there is no probable cause but only rumor or speculation and he knows that the evidence, if it exists, may not be lawfully seized. It is the latter type search, the search of the presumed innocent, which the [175]courts should most zealously discourage, but the impact of today’s decision of the majority is to provide an incentive for the speculative and general search.
I would issue mandate.
Tobriner, J., and Sullivan, J., concurred.
Petitioners’ application for a rehearing was denied October 28, 1970. Peters, J., Tobriner, J., and Sullivan, J., were of the opinion that the petition should be granted.
Because the causation is direct, immediate, and necessary, cases of independent lawful causation (see People v. Stoner, 65 Cal.2d 595, 602 [55 Cal.Rptr. 897, 422 P.2d 585]), where unlawful conduct was not necessary (People v. Ditson, 57 Cal.2d 415, 443-444 [20 Cal.Rptr. 165, 369 P.2d 714]), or where the causation has become [172]attenuated (Wong Sun v. United. States, 371 U.S. 471, 487-488 [9 L.Ed.2d 441, 455-456, 83 S.Ct. 407]), are not controlling.