Remers

Petitioner was charged with possession for sale of dangerous drugs. (Health & Saf. Code, § 11911.) After a hearing, the superior court denied petitioner’s motion to suppress the evidence of the pills (Pen. Code, § 1538.5), and we issued an alternative writ of mandate.

This case is controlled’by our decision in Cunha v. Superior Court, ante p. 352 [ 85 Cal.Rptr. 160 , 466 P.2d 704 ], and accordingly we hold that the arresting officers did not have probable cause to arrest and search petitioner and that the evidence uncovered by the search is inadmissible.

At approximately 10:52 p.m. on July 24, 1969, Officers McCarthy and Lipgens of the Berkeley Police Department were standing in front of Pepe’s Pizza Parlor on Telegraph Avenue. 1 Officer McCarthy observed petitioner standing outside Pepe’s talking with a “hippie-type” male; she looked around “over either shoulder,” removed a tinfoil package from her purse, and then “nodded in a motion that they both go into Pepe’s.” Officer McCarthy could not tell what was inside the tinfoil package. Officer McCarthy said to Officer Lipgens that “ ‘Valerie’s got a deal going down,’ ” and the officers followed the couple into Pepe’s. The…

I concur in the order under the compulsion of Cunha v. Superior Court, ante, p. 352 [ 85 Cal.Rptr. 160 , 466 P.2d 704 ],

I dissent. I would deny the writ.

I concur in the order under the compulsion of Cunha v. Superior Court, ante, p. 352 [ 85 Cal.Rptr. 160 , 466 P.2d 704 ], which decision in my opinion should be reexamined.

Petitioner was charged with possession for sale of dangerous drugs. (Health & Saf. Code, § 11911.) After a hearing, the superior court denied petitioner's motion to suppress the evidence of the pills (Pen. Code, § 1538.5), and we issued an alternative writ of mandate.

This case is controlled by our decision in Cunha v. Superior Court, ante p. 352 [ 85 Cal. Rptr. 160 , 466 P.2d 704 ], and accordingly we hold that the arresting officers did not have probable cause to arrest and search petitioner and that the evidence uncovered by the search is inadmissible.

At approximately 10:52 p.m. on July 24, 1969, Officers McCarthy and Lipgens of the Berkeley Police Department were standing in front of Pepe's Pizza Parlor on Telegraph Avenue. [1] Officer McCarthy observed petitioner standing outside Pepe's talking with a "hippie-type" male; she looked around "over either shoulder," removed a tinfoil package from her purse, and then "nodded in a motion that they both go into Pepe's." Officer McCarthy could not tell what was inside the tinfoil package. Officer McCarthy said to Officer Lipgens that "`Valerie's got a deal going down,'" and the officers followed the couple…