REGAN, J. I dissent.
The preliminary examination in this case was before the Justice Court of the Auburn Judicial District, Placer County. The judge thereof found there was sufficient cause to believe the petitioner’s guilty of a violation of section 11530, Health and Safety Code, and ordered them held to answer to the superior court. Thereafter, petitioners’ motions in the trial court to set aside the information pursuant to section 995 of the Penal Code and to suppress the evidence pursuant to section 1538.5 of the Penal Code were denied. The majority opinion, in holding that the search of the automobile violated petitioners’ Fourth and Fourteenth Amendment rights, seems to hold that the arresting officer must, after the arrest of the driver, explain to him that an impounding of the automobile is necessary and further consult the arrested driver as to his wishes or the willingness of his companions to drive the ear to a place of safekeeping. Absent this advice, the impounding and subsequent inventory is unlawful.
After the pursuit by Officer Ewing of the California Highway Patrol, during which he called in two other patrol units to converge on the City of Penryn, the automobile of petitioners was located, stopped and petitioner Virgil, the driver, was placed under arrest for a violation of section 23103 of the Vehicle Code (reckless driving).
Ewing testified that if the driving of a person is reckless, most of the time he takes the driver into custody and then inventories the vehicle; that this action is taken pursuant to a policy adopted by the California Highway Patrol, which its officers are required to follow, and that he followed that policy in the case before us. He testified:
“ Q. And what did you do in that connection ?
“A. Well, we had the three gentlemen out of the vehicle, [134]with the assistance of Officer Tuel, and I went to the vehicle and made an inventory of the vehicle, which revealed the evidence.
Q. Will you state to us how you made that inventory ?
“A. Yes. I opened the right front door, looked in the glove box, looked in the front seat, and I noticed a marijuana seed on the right front floorboard. There is no carpeting on the floor. I picked up the seed, and I noticed under the right front seat was a small pan containing 15, 12 or 15 small, what appeared to be marijuana plants. And on closer examination I found a charred marijuana seed in the ashtray in the rear of the vehicle.
“Q. Did you take possession at that time, Officer, of the plant [s] that appeared to you to be a marijuana plant [s] Í
“A. Yes, I did.”
In People v. Orliz, 147 Cal.App.2d 248, 250 [305 P.2d 145], the court states:
“Defendant does not question the validity of his arrest. His thesis is that the search was unreasonable and therefore illegal. Hence the contraband that was found was inadmissible in evidence.
“Prom defendant’s position in the car, his physical condition, the manner in which the ear was parked, and the earliness of the morning hour, the officer could reasonably conclude that defendant was ‘in control of' the vehicle, and not just a passenger, at the time of the arrest. Hence the officer was entitled to impound the car (Veh. Code, §§ 585(b) (5) and 585.2; Pen. Code, § 849), and thus take possession of it.
“In the circumstances of this ease it was not unreasonable for the police officer to make an inventory of the contents of the automobile prior to impounding it. Such inventory was a protection to the owner of the vehicle, the garage owner, and the officer. Since the marijuana was found during the course of making the inventory, it was not discovered as a result of an unreasonable search and therefore it was not inadmissible in evidence. ’ ’ [136]Cahan, supra, 44 Cal.2d 434, 445 et seq. [282 P.2d 905, 50 A.L.R.2d 513].) The exclusionary rule is not a penalty but is derived from the principle that the state must not profit from its own wrong. (People v. Parham, supra, 60 Cal.2d 378, 386.) 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.”
[134]In People v. Gil, 248 Cal.App.2d 189, 191-192 [56 Cal.Rptr. 88] (hearing by the Supreme Court denied), the court states: “The search, which is here attacked as being constitutionally unreasonable, was made incident to a lawful arrest (Veh. Code, § 23102 subd. (a)), and to a customary and well-justified procedure—the inventorying of the contents of respondent’s car (see People v. Ortiz, 147 Cal.App.2d 248, 250 [305 P.2d 145]), preliminary to its lawful impounding (Veh. Code, § 22651, subd. (h)). Therefore, there can be no question about [135]the constitutionality of the search in terms of its having been properly occasioned. (People v. Nebbit, 183 Cal.App.2d 452, 461 [7 Cal.Rptr. 8], hear, denied.)
“Of course, the search under attack cannot be constitutionally justified by the fact that it did uncover marijuana. (People v. Brown, 45 Cal.2d 640, 643 [290 P.2d 528].) On the other hand it is not necessarily constitutionally vulnerable because it turned up evidence of a crime different from the one which occasioned the search. (People v. Galceran, 178 Cal.App.2d 312, 317 [2 Cal.Rptr. 901].) ”
In People v. Garcia, 214 Cal.App.2d 681, 684 [29 Cal.Rptr. 609], this court states: “ ‘ “. . . A police officer is authorized to remove a vehicle from the highway to the nearest garage when he arrests any person driving, or in control of a vehicle for an alleged offense, or where such officer is, by the Vehicle Code or other law, required to take the person arrested immediately before a magistrate.” (People v. Simpson, 170 Cal.App.2d 524, 530 [339 P.2d 156].) Thus, the officers had a lawful right to impound the car, and they, after Smith and defendant were removed therefrom, took possession of the same for that purpose. At that time, as is the standard practice, the officers proceeded to make an inventory of personal items in the vehicle (People v. Ortiz, 147 Cal.App.2d 248 [305 P.2d 145], wherein defendant was arrested for “drunk auto”). “In the circumstances of this case it was not unreasonable for the police officer to make a[n] inventory of the contents of the automobile prior to impounding it. Such inventory was a protection to the owner of the vehicle, and the garage owner, and the officer. Since the marijuana (found by officers in the glove compartment) was found during the course of making the inventory, it was not discovered as a result of an unreasonable search and therefor it was not inadmissible in evidence.” (P. 250.)’ (See also People v. Nichols, 196 Cal.App.2d 223 [16 Cal.Rptr. 328]; People v. Myles, 189 Cal.App.2d 42 [10 Cal.Rptr. 733]; People v. Odegard, 203 Cal.App.2d 427, 431-432 [21 Cal.Rptr. 515].)”
In People v. Moore, 69 Cal.2d 674, 682 [72 Cal.Rptr. 800, 446 P.2d 800], the court said:
“. . . The basic purpose of the exclusionary rule is to deter unconstitutional methods of law enforcement. (Elkins v. United States, 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677, 80 S.Ct. 1437]; Mapp v. Ohio, supra, 367 U.S. 643, 656 [6 L.Ed.2d 1081, 1090, 81 S.Ct. 1684]; People v. Parham, 60 Cal 2d 378, 385 [33 Cal.Rptr. 497, 384 P.2d 104],- People v.
[136]In the circumstances of this case I find nothing unreasonable in the action of the officer in arresting petitioner Virgil and the impounding of the automobile nor in the commencement of the inventory which immediately disclosed contraband. The automobile was in valid police custody and to inventory its contents was lawful and proper. If the majority opinion is saying that the inventory was in fact a search then the holding in People v. WeW, 66 Cal.2d 107, 128 [56 Cal. Rptr. 902, 424 P.2d 342, 19 A.L.R.Sd 708], is applicable where, in the concurring opinion, Peters, J., states:
‘.. I feel bound by the rules announced by the Supreme Court ... in Cooper v. California, 386 U.S. 58 [17 L.Ed.2d 730, 87 S.Ct. 788] ... [a] search is now permissible without a warrant if the vehicle is in valid police custody. In the instant ease the vehicle was undoubtedly in the valid custody of the police. A search was, therefore, proper under Cooper, supra. ’ ’
I would deny the writ.
A petition for a rehearing was denied January 6, 1969. Regan, J., was of the opinion that the petition should be granted. The petition of the real party in interest for a hearing by the Supreme Court was denied February 5,1969.