Mickelson

I concur.

I agree that the search here involved was illegal, both under state and federal law. Therefore, I agree that the order appealed from must be affirmed. But, in my opinion, such holding makes it unnecessary to discuss the scope and impact on state law of the decision of Mapp v. Ohio, 367 U.S. 643 [ 81 S.Ct. 1684 , 6 L.Ed.2d 1081 ]. In my opinion the determination of that important constitutional question should be left to a ease where it is directly involved.

I dissent. I would reverse the order of the trial court as to count II and affirm the order as to count I, *455 for the reasons expressed by Mr. Presiding Justice Fox in the opinion prepared by him for the District Court of Appeal in People v. Mickelson (Cal.App.) 26 Cal.Rptr. 152 .

Appellant’s petition for a rehearing was denied May 14, 1963. McComb, J., was of the opinion that the petition should he granted.

Defendant was charged in two counts of an information with committing burglaries of telephone booths, in violation of Penal Code, section 459. His motion to set aside the information was granted (Pen. Code, § 995), and the People appeal. The Attorney General concedes that there was no evidence at the preliminary hearing to support count I and seeks a reversal only as to count II.

A Burbank police officer discovered the physical evidence supporting count II in the course of searching an overnight bag found under the front seat of an automobile in which defendant had been riding and which Don Zauzig had been driving. The bag contained $85.90 in nickels, dimes, and quarters. At defendant’s preliminary hearing, the bag and its contents were introduced in evidence, and Zauzig testified to his and defendant’s commission of the burglary. Zausig’s arrest and his availability as a witness were direct results of the search that disclosed the physical evidence of the burglary. If that search was illegal, neither the physical evidence nor Zauzig’s testimony is competent to support the information. *450 (Silverthorne Lbr. Co. v. United States, 251 U.S. 385, 392 [ 40 S.Ct. 182 , 64 L.Ed. 319,…

Defendant was charged in two counts of an information with committing burglaries of telephone booths, in violation of Penal Code, section 459. His motion to set aside the information was granted (Pen. Code, 995), and the People appeal. The Attorney General concedes that there was no evidence at the preliminary hearing to support count I and seeks a reversal only as to count II.

A Burbank police officer discovered the physical evidence supporting count II in the course of searching an overnight bag found under the front seat of an automobile in which defendant had been riding and which Don Zauzig had been driving. The bag contained $85.90 in nickels, dimes, and quarters. At defendant's preliminary hearing, the bag and its contents were introduced in evidence, and Zauzig testified to his and defendant's commission of the burglary. Zausig's arrest and his availability as a witness were direct results of the search that disclosed the physical evidence of the burglary. If that search was illegal, neither the physical evidence nor Zauzig's testimony is competent to support the information. (Silverthorne Lbr. Co. v. United States, 251 U.S. 385, 392 [ 40 S.Ct. 182 , 64 L.Ed.…