Koelzer

On this appeal by both defendants from judgments of second degree burglary after a jury trial and conviction, the sole contention is that defendants were convicted through the admission of evidence discovered and obtained by an illegal search of a motor vehicle.

Appeals were also taken from the orders (1) denying probation and (2) denying defendants’ motions for new trial. Said orders are nonappealable.

The search of defendant Harry Koelzer’s automobile occurred after and during a chain of events which included an arrest of both defendants. The arrests were under warrants but the warrants were on misdemeanor charges, to wit: traffic violations. The arrests were made at night, and from the record it does not appear that any magistrate had directed a night arrest. No traffic violation was being committed when the arrests were made. Therefore these arrests did not comply with Penal Code section 840. Moreover, this court has held that, in the absence of other suspicious circumstances, a search made of an automobile without a search warrant may not be justified by an arrest for a traffic violation. (People v. Molarius, 146 Cal.App.2d 129 [ 303 P.2d 350 ], hearing by Supreme Court…