KINGSLEY, J. I dissent.
I agree with the majority opinion in holding that there was no issue before the trial court as to the legality of the arrest and that the trial court had ample basis to find, as it did, that defendant’s consent to search his apartment was not coerced within the meaning of Castaneda v. Superior Court (1963) 59 Cal.2d 439 [30 Cal.Rptr. 1, 380 P.2d 641], and the cases which have followed and applied the rule of that case.
But, without the evidence disclosed by the search, the evidence was not sufficient to sustain a conviction. The narcotics found at the station were in a paper sack, under a shirt of unknown ownership, which was under the shirt belonging to defendant. There is nothing in the information secured by the officers at the station to show that defendant was ever aware of the sack under the shirt below his, nor is there anything to suggest that the paper sack itself in any way suggested that it might contain narcotics. The record is devoid of anything to suggest that any of the data the officers had received about narcotic activities at the station had pointed a finger at this defendant as being involved. It follows that it requires evidence of the things discovered by the subsequent search of defendant’s apartment to connect him with the heroin found at the station.
However, I am convinced that the search, although “voluntary” in the Castaneda sense, was unlawful for constitutional reasons discussed below.
It is true that the ground on which I here rely was not expressly urged on the trial court. But it is available on this appeal because it rests on cases not decided when the trial was held.1 (People v. Hillery (1965) 62 Cal.2d 692 [44 Cal.Rptr. [5930], 401 P.2d 382]; People v. Kitchens (1956) 46 Cal.2d 260 [294 P.2d 17].)
Since the search was of an apartment removed from the place of arrest, the search cannot be sustained as one incident to the arrest (see Witkin, Cal. Evidence (2d ed. 1966), § 119, pp. 120-121). It is clear from the record that the search was not pursuant to any search warrant. The police had no information identifying the defendant until they had searched the service station. His arrest, the location of his home, the trip there, the entry and search, followed in an unbroken series of events. The Officers relied on the alleged consent; neither they, at that time, nor the Attorney General here, place reliance on anything else.
But, although the consent was not vitiated for the reasons set out in Castaneda, I think that it was illegal under the doctrine first announced in People v. Dorado, expanded in Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], and still further expanded in United States v. Wade (1967) 388 U.S. 218 [18 L.Ed.2d 1149, 87 S.Ct. 1926], and Gilbert v. California (1967) 388 U.S. 263 [18 L.Ed.2d 1178, 87 S.Ct. 1951]. Defendant was in custody, suspicion admittedly had focused on him, and the search was frankly for the purpose of securing additional evidence against him. If a warning of his constitutional right to be free from a search not justified by a warrant or as incident to his arrest should have been given, then the search was illegal. I conclude that the principles applied in the cases just referred to also compel a warning of defendant’s rights under the Fourth Amendment.2
[60]In United States v. Blalock (E.D. Pa. 1966) 255 F.Supp. 268, the court said (at p. 269): “First, the consent must have been ‘intelligent.’ Obviously, the requirement of an ‘intelligent’ consent implies that the subject of the search must have been aware of his rights, for an intelligent consent can only embrace the waiver of a ‘known right. ’ Johnson v. Zerbst (1938) 304 U.S. 458 [82 L.Ed. 1461, 58 S.Ct. 1019, 146 A.L.R. 357] ; United States ex rel. Mancini v. Rundle (3d Cir. 1964) 337 F.2d 268. Certainly, one cannot intelligently surrender that which he does not know he has. Cf. United States ex rel. Mancini v. Rundle, supra; Walker v. Pepersack (4th Cir. 1963) 316 F.2d 119. The agents here properly warned defendant of his right to counsel and his right to remain silent, but they did not warn him of his right to refuse a warrantless search. The Fourth Amendment requires no less knowing a waiver than do the Fifth and Sixth. The requirement of knowledge in each serves the same purpose, i.e., to prevent the possibility that the ignorant may surrender their rights more readily than the shrewd. ... To require law enforcement agents to advise the subjects of investigation of their right to insist on a search warrant would impose no great burden, nor would it unduly or unnecessarily impede criminal investigation. Here, the evidence shows no such warning, nor is there any other evidence that Blalock was aware of his Fourth Amendment right. It cannot be said, then, that the Government has sustained its burden of showing that there was an intelligent waiver of a known right. Commonwealth of Pennsylvania ex rel. Whiting v. Cavell (M.D. Pa. 1965) 244 F. Supp. 560, 567, aff’d per curiam (3d Cir. 1966) 358 F.2d 132. This being so, we need not consider whether the consent was voluntary.” This doctrine was followed in United States v. Nikrasch (7th Cir. 1966) 367 F.2d 740, 744.)
In People v. Roberts (1966) 246 Cal.App.2d 715 [55 Cal. Rptr. 62], the Court of Appeal for the Third District considered the problem now before us.3 Citing two pre-Dorado eases, and what it regarded as the significant fact that the [61]issue was not considered in the post -Dorado decision in People v. Bilderbach (1965) 62 Cal.2d 757 [44 Cal.Rptr. 313, 401 P.2d 921], the court remarked (at p. 729) that “Our Supreme Court has given no indication that it will equate a warning before a consented-to search with a warning before interrogation.” But we now have that missing indication. In People v. Henry (1967) 65 Cal.2d 842, 846 [56 Cal.Rptr. 485, 423 P.2d 557], the Supreme Court reversed a conviction because it determined that no finding of actual or voluntary consent had been made in the trial court. After so ruling, the court then commented (at p. 846): “If there was no apparent consent or if such consent was not voluntarily given, it is unnecessary to consider whether valid consent can be found in the absence of proof that defendant was advised of his constitutional rights pertaining to searches (see e.g. United States v. Nikrasch, 367 F.2d 740, 744. ...”
The same intimation again appears in Parrish v. Civil Service Com. (1967) 66 Cal.2d 260, 269 [57 Cal.Rptr. 623, 425 P.2d 223], In that case, the Supreme Court held that the entry involved was not made with the occupant’s consent because the record showed that the purported consent was not voluntary. The court then added; “Thus we need not determine here whether a request for entry, voiced by one in a position of authority under circumstances which suggest that some official reprisal might attend a refusal, is itself sufficient to vitiate an affirmative response by an individual who had not been apprised of his Fourth Amendment rights.” In a footnote, the court cited the two federal eases above referred to and the law review note cited in footnote 7 infra.
The importance of warning a suspect of his constitutional right to object to a search under the conditions here existing is even greater than in eases where police interrogation is to follow. As Castaneda and the eases following it make clear, the voluntariness of a “consent” given by a suspect already arrested is inherently suspect. The same reasons for avoiding the necessity of minute judicial examination of de facto voluntariness exist in eases of search as in cases of questioning. If anything, the arrestee is under an even stronger pressure to “cooperate” by consenting to search than he is to talk.
In addition, the requirement of a warning, in cases such as that .before, us,4 carries with it a minimum of interference [62]with legitimate police activity. The occupant is already in custody5 and without opportunity to destroy or secrete any evidence that may exist at his home. The information which led to the arrest will, in almost every case, support an application for a search warrant.6 Since the arrest was not at a place to be searched, the risk that some other occupant may be alerted is minimized and, in any event, the fact that one occupant is in custody would not prevent the police from going independently to the home and seeking the consent of a co-occupant not in custody. Whatever may be said about the effect of the Dorado rules on effective police interrogation, a requirement that a warning of Fourth Amendment rights be given to a suspect already under arrest, in connection with a request for permission to search is, thus, of little practical effect.7
Since the search of defendant's apartment was illegal, it follows that the evidence there secured was inadmissible.As I have shown above, without it, the evidence was insufficient to support the finding of guilt.
I would reverse the judgment.
Appellant's petition for a hearing by the Supreme Court was denied October 25, 1967. Peters, J., was of the opinion that the petition should be granted.
While the trial, begun on March 29, 1966, and concluded on April 6, 1966, followed Dorado, it preceded Henry, hereinafter discussed; and Henry was the first California case that clearly warned counsel of the [59]possible availability of the ground herein considered and which, so far as we are aware, is now first determined.
Both Castaneda and the problem herein involved were forecast in dicta in a farsighted opinion in 1956 (People v. Wilson (1956) 145 Cal.App.2d 1, 7 [301 P.2d 974]), where the court said: ‘ ‘While the question of consent is one of fact (People v. Gorg, 45 Cal.2d 776 [291 P.2d 469]), it is obvious that a ‘permission’ granted after a person has been improperly arrested and searched, while he is still in custody, and without informing him of his legal right to refuse permission, is not a real or proper consent. ’ ’ But the important implications of that language seem to have been overlooked, and the case has been cited only for the proposition (not herein involved as we have seen) that a search following an illegal arrest is tainted by that illegality. We do not regard the hint given in Wilson as being of such a nature as to prevent the operation of Kitchens.
The cases hereinafter discussed all refer to warnings of rights under the Fourth Amendment. Absent some other indication of the trend of judicial decision, I do not express any opinion as to whether or not a warning of the right to consult counsel is also required. On that point, however, consult United States v. Wade, supra (1967) 18 L.Ed.2d 1149.
It must be pointed out that the discussion in Roberts was dictum. The defendant there was not in custody and, in fact, the decision to arrest was not made by the officers until after the search. Even if Dorado requires a warning, the rule would not operate until custody had begun. (Ballard v. Superior Court (1966) 64 Cal.2d 159 [49 Cal.Rptr. 302, 410 P.2d 838].)
Similarly, I think that the broad language in People v. Chaddock (1967) 249 Cal.App.2d 483, 485 [57 Cal.Rptr. 582] must be limited to the facts therein involved, namely a request to search not only prior to arrest, but while the police were still in the investigatory stage.
I do not here deal with those “exceptional circumstances,” such as the threatened destruction of evidence, where it has been said that [62]officers may conduct a search, without a warrant, without consent and not incident to an arrest. (Consult: Johnson v. United States (1948) 333 U.S. 10 [92 L.Ed. 436, 68 S.Ct. 367]; Chapman v. United States (1961) 365 U.S. 610, 618 [5 L.Ed.2d 828, 834, 81 S.Ct. 776, 781]; Gilbert v. California, supra (1967) 18 L.Ed.2d 1178; People v. Huber (1965) 232 Cal.App.2d 663, 667 [43 Cal.Rptr. 65].)
As I have indicated above, I deal only with eases in which the person whose consent is sought is already in “custody.” Ballard v. Superior Court (1966) 64 Cal.2d 159 [49 Cal.Rptr. 302, 410 P.2d 838], and other recent cases, make it clear that Dorado and its progeny apply only to those under such police restraint as to make them exceptionably subject to pressure. ...
It is now settled that a search warrant may issue for the sole purpose of securing evidence to be used against a defendant. (People v. Thayer (1965) 63 Cal.2d 635 [47 Cal.Rptr. 780, 408 P.2d 108], cert. den., 384 U.S. 908 [16 L.Ed.2d 361, 86 S.Ct. 1342].)
The entire problem, considered both with respect to Miranda and with respect to other cases, is considered in a comprehensive Note in (1967) 67 Colum.L.Rev. 130.