Pranke

I dissent.

The decisive question is whether the search of appellant’s apartment which led to the discovery of marijuana was lawful. If the search was unlawful, the evidence introduced as a result of the search, which led to appellant’s conviction, should have been excluded and the judgment should be reversed.

In my opinion the search was irremediably tainted by the illegality of appellant’s arrest which preceded the search. The majority holds this court is precluded from adjudicating the legality of appellant’s arrest because appellant failed to present the precise ground to the trial court on which he seeks a reversal.

The majority concede, as the record shows, that the legality of appellant’s arrest was put in issue in the trial court, but hold that, since the legal theory upon which the arrest is now argued to be unlawful is different from the *948 theory urged before the trial court, appellant is barred by the rules of appellate practice from disputing the legality of the arrest.

It is basic that theories which have not been presented to the trial judge cannot properly be presented for the first time on appeal. (Rivas v. Ayala, 208 Cal.App.2d 239, 242-243 [ 25 Cal.Rptr. 48…

*938 Opinion

As authorized by Penal Code section 1538.5, subdivision (m), defendant purportedly seeks . . further review of the validity of a search or seizure on appeal from [his] conviction . . . notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.” Appellant contends: “I. Because appellant’s arrest was made without probable cause, his consent to search his apartment, in which the marijuana was found, was constitutionally invalid.” “II. Assuming, arguendo, that appellant’s arrest was valid, his subsequent consent to the search of his apartment, without having been first informed of his Fourth Amendment rights, was constitutionally invalid.” We have concluded that neither of these contentions is meritorious.

On the morning of September 16, 1968, the residence of Edward Clahan was burglarized. Clahan testified that earlier that morning appellant, a casual acquaintance whom Clahan had not seen for a year and one-half, called at the Clahan residence “saying that he was leaving and wanted to say good-bye [to a mutual friend], so, naturally, I gave him the [friend’s] phone number.” Appellant had been accompanied by another person whose…

I concur in the opinion.

Additionally, I conclude that Denton for his own protection was justified in taking the action he took. After two suitcases and a cardboard box had been left by Pranke in Denton’s apartment and in his custody, Denton learned from the police they were looking for Pranke in connection with a burglary investigation. Denton invited the police inside “to check the property.” I think Denton had a right to do this in order to safeguard his own interests. I think he was entitled to forestall the possibility of criminal charges materializing against him for receiving stolen property or aiding and abetting a burglary if it should develop that he was the possessor and custodian of the fruits of a crime.

If we suppose a similar set of circumstances, a similar inquiry of the police, and their explanation that they were conducting an investigation for stolen explosives, stolen weapons, stolen bearer bonds, kidnap ransom money, or plates for counterfeit currency, it seems obvious to me Denton would be justified in inviting the police to check over property in his custody for his own protection. Frazier v. Cupp, 394 U.S. 731, 740 [ 22 L.Ed.2d 684, 693 , 89 S.Ct. 1420 ],…

As authorized by Penal Code section 1538.5, subdivision (m), defendant purportedly seeks "... further review of the validity of a search or seizure on appeal from [his] conviction ... notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty." Appellant contends: "I. Because appellant's arrest was made without probable cause, his consent to search his apartment, in which the marijuana was found, was constitutionally invalid." "II. Assuming, arguendo, that appellant's arrest was valid, his subsequent consent to the search of his apartment, without having been first informed of his Fourth Amendment rights, was constitutionally invalid." We have concluded that neither of these contentions is meritorious.

On the morning of September 16, 1968, the residence of Edward Clahan was burglarized. Clahan testified that earlier that morning appellant, a casual acquaintance whom Clahan had not seen for a year and one-half, called at the Clahan residence "saying that he was leaving and wanted to say good-bye [to a mutual friend], so, naturally, I gave him the [friend's] phone number." Appellant had been accompanied by another person…