HERNDON, J. I concur in the reasoning of the foregoing opinion and its conclusion that the judgment should be affirmed.
There is additional authority supporting the holding that the search of the automobile was valid as an incident to appellant’s unquestionably valid arrest notwithstanding the fact that the only reason expressly articulated by the officer for making the search was that he was about to impound the vehicle. It is true that the officer testified that he made the search for the stated reason, but his testimony does not indicate that he had no other valid reason. It is almost an inherent certainty that the officer had in mind appellant’s suspected participation in the robbery, his illegal possession of the concealed weapon and his reasonably suspected narcotic activities when the search was made.
In People v. Walker, 273 Cal.App.2d 720 [78 Cal.Rptr. 439], as in the case at bench, the defendant was found in possession of a concealed weapon. The following from the decision in that case at page 725 is equally applicable here: “Officer Kainz decided that defendant should be arrested for robbery, and so informed him. It is unnecessary to determine whether there was probable cause to suspect defendant of robbery. His. possession of the concealed weapons furnished solid ground for an immediate arrest, the legality of which is not disturbed by the officer’s having in mind a more serious offense which was suggested by defendant’s possession of the firearms. (See People v. Woods (1966) 239 Cal.App.2d 697, 702 [49 Cal.Rptr. 266].)
“Following a lawful arrest for a crime involving firearms it was appro[715]priate to make a search of the other parts of the car for other guns and ammunition. The drugs found in the trunk, though not the object of the search, could not be overlooked and were properly seized. (People v. Jackson (1966) 241 Cal.App.2d 189 [50 Cal.Rptr. 437].)”
A similar holding was made in People v. Kelley, 3 Cal.App.3d 146, 151 [83 Cal.Rptr. 287], as follows: “Furthermore, the arrest is not invalidated by the fact that the officer told defendant he was being arrested for drunk driving. It is unnecessary to decide whether the circumstances justified an arrest for that offense, since there were grounds to arrest for two different, though related, misdemeanors. The officer’s announcement of the wrong offense did not make the arrest unlawful.”
If the test of the reasonableness of an arrest and of a search and seizure made as an incident thereto is an objective test, that is, whether or not the facts known to the officer would create in the mind of a reasonable person a strong suspicion that the arrested person was guilty of a felony, certainly the officer in this case had reasonable grounds to make the arrest and the incidental search.
In this case, even more clearly than in Mann v. Superior Court, 3 Cal.3d 1 [88 Cal.Rptr. 380, 472 P.2d 468], it is evident that the search was incidental to a lawful arrest. In Mann, the officer testified affirmatively that, in making the arrests there in question, he had relied solely and exclusively upon knowledge he had gained through illegal observations previously made. But, properly applying an objective test, the Supreme Court held that subsequently, after the officer in that case had knocked on the door and had been invited into the house, “he immediately detected the odor of marijuana smoke.” As the Supreme Court said, “This evidence apparent to his sense of smell, independently of what he saw through the windows, gave Lieutenant Olmos probable cause to believe that a felony was being committed in his presence and to arrest petitioners and their guests. [Citations.]”
As an independent and additional reason for affirming the judgment, I would hold that the exclusionary rule of Mozzetti is not applicable in this case because appellant was not the owner of the impounded vehicle. The testimony of appellant’s girl friend is uncontradicted that appellant stole her keys and took her automobile without her knowledge or consent.
To my mind it borders upon the absurd to hold that a thief should be given the benefit of a constitutional right to an expectation of privacy to a vehicle which he has stolen. The language of Mozzetti lends support to the view that it is only the owner’s property rights and rights to privacy which are entitled to protection under the Fourth Amendment.
[716]Appellant, of course, seeks to invoke the “vicarious exclusionary rule” enunciated in People v. Martin, 45 Cal.2d 755, 759-761 [290 P.2d 855], but I would hold that this improvident rule over-extending the application of the Fourth Amendment was effectively abolished by the enactment of section 351 of the Evidencé Code. I would so hold for all of the reasons so ably and so convincingly stated in Kaplan v. Superior Court* (Cal.App.) 93 Cal.Rptr. 482. As pointed out in that decision, “Neither the federal courts nor the courts of any other state employ the vicarious exclusionary rule either as a rule of evidence or as constitutionally required.” It is not constitutionally required. (Alderman v. United States, 394 U.S. 165, 171-175 [22 L.Ed.2d 176, 185-188, 89 S.Ct. 961].)
It is most encouraging to observe the increasingly strong indications that the suppression doctrine and the exclusionary rule itself may be laid to rest in the not distant future. Their continued validity has come under increasing attack by legal scholars and in the United States Supreme Court where it has been aptly characterized as an “unworkable and irrational concept of law,” which the “experience of over half a century has shown neither deters errant officers nor affords a remedy to the totally innocent victims of official misconduct.” (See dissent by Chief Justice Burger in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 420 [29 L.Ed.2d 619, 640-641, 91 S.Ct. 1999].)
Even less rational would be the application of the suppression doctrine in the case at bench in which the police officers followed a procedure which a long line of California appellate court decisions had held to be not only a proper procedure but one which the officers’ duties required them to pursue.
As our former opinion in this case indicates, we relied upon People v. Andrews, 6 Cal.App.3d 428, [85 Cal.Rptr. 908], a case in which the Supreme Court denied a hearing as late as June 7, 1970, without a single vote for a hearing! This was only one of the 19 decisions of the Court of Appeal filed during the 14-year period between 1956 and 1970 which the Supreme Court disapproved in Mozzetti for the stated reason that said cases provided “no persuasive rationale to justify the practices which their holdings and dicta validate.”
Reversals of judgments in cases in which law enforcement officers and trials courts have faithfully and correctly followed and applied the law as it had been authoritatively declared at the time the officers acted, as [717]well as at the time of trial, have a stultifying effect upon the administration of justice. Such costly reversals necessarily add substantially to the burdens of our desperately overloaded trial courts and have seriously damaged the image of our judicial system in the public mind.
As Chief Justice Burger so aptly stated in his dissent in Bivens, supra, “It is hardly surprising that such results are viewed with incomprehension by nonlawyers in this country and lawyers, judges, and legal scholars the world over.”
A hearing was granted by the Supreme Court on May 13, 1971. The opinion of the court is reported in 6 Cal.3d 150 [98 Cal.Rptr. 649, 491 P.2d 1].