Shaw

The court, having heretofore affirmed the judgment of conviction for possession of marijuana for purposes of sale and for unlawfully carrying a loaded firearm in a public place, now reconsiders the judgment in the light of Mozzetti v. Superior Court, 4 Cal.3d 699 [ 94 Cal. Rptr. 412 , 484 P.2d 84 ], a decision made retroactive by Gallik v. Superior Court, 5 Cal.3d 855 [ 97 Cal. Rptr. 693 , 489 P.2d 573 ]. Relevant to reconsideration are the following facts:

A number of police, aided by an informant and an undercover deputy, were engaged in consummating an elaborate drug purchase transaction. During the preliminaries two men walked up to the location (an apartment building), one of whom was identified by the undercover deputy as the potential seller of narcotics while the other, herein called X, was identified by the undercover deputy as the potential source of supply for the narcotics. A few minutes later the informant and the undercover deputy reported to Officer Taranto that X had left to get the narcotics and would return with them within a half hour. X was wearing a leather jacket with a white peace symbol on it. Some time later the undercover deputy…

The court, having heretofore affirmed the judgment of conviction for possession of marijuana for purposes of sale and for unlawfully carrying a loaded firearm in a public place, now reconsiders the judgment in the light of Mozzetti v. Superior Court, 4 Cal.3d 699 [ 94 Cal.Rptr. 412 , 484 P.2d 84 ], a decision made retroactive by Gallik v. Superior Court, 5 Cal.3d 855 [ 97 Cal.Rptr. 693 , 489 P.2d 573 ]. Relevant to reconsideration are the following facts:

A number of police, aided by an informant and an undercover deputy, were engaged in consummating an elaborate drug purchase transaction. During the preliminaries two men walked up to the location (an apartment building), one of whom was identified by the undercover deputy as the potential seller of narcotics while the other, herein called X, was identified by the undercover deputy as the potential source of supply for the narcotics. A few minutes later the informant and the undercover deputy reported, to Officer Taranto that X had left to get the narcotics and would return with them within a half hour. X was wearing a leather jacket with a white peace symbol on it. Some time later the undercover deputy signalled that a…

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…

I dissent.

In my opinion there would have been no charge and there could have been no conviction of illegal possession of drugs for sale without the admission of the evidence illegally seized under the doctrine announced by Mozzetti v. Superior Court, 4 Cal.3d 699 [ 94 Cal.Rptr. 412 , 484 P.2d 84 ], made retroactive and applicable to this case by Gallik v. Superior Court, 5 Cal.3d 855 [ 97 Cal.Rptr. 693 , 489 P.2d 573 ]. The right to object to the illegally seized evidence rests “. . . on the ground that the government must not be allowed to profit by its own wrong and thus encouraged in the lawless enforcement of the law.” (People v. Martin, 45 Cal.2d 755, 761 [ 290 P.2d 855 ]; People v. Gonzales, 17 Cal.App.3d 848, 853, fn. 9 [ 95 Cal.Rptr. 291 ].)

I have noted the argument of the majority that an officer’s mistake in announcing the wrong offense at the moment of arrest does not vitiate an otherwise lawful arrest. However a search, initially unlawful, is not validated by what it turns up. At bench, the officer was asked whether “. . . when you checked the car subsequent to the arrest of the defendants, you were doing that to inventory it for impound purposes. . .” (italics…