People v. Chimel , 67 Cal. Rptr. 421 ( 1968 )

PETERS, J.

I dissent.

In a well reasoned opinion we have held this very day that warrants identical to the ones used here are constitutionally defective, and that arrests pursuant thereto are invalid. (People v. Sesslin, ante, p. 418 [67 Cal.Rptr. 409, 439 P.2d 321].) The majority opinion concedes, as it must, that the warrants here are invalid because constitutionally defective. The arrests made pursuant to such warrants must, therefore, be held to be invalid.

The majority seek to uphold the arrests because, at the trial, the prosecution justified the arrests because the police had knowledge of sufficient facts to constitute probable cause. But the arrests were not based on that ground. The police purported to act solely upon the warrants. To permit them to justify the arrests at this late date on entirely different grounds unfairly prejudiced the defendant. He had the legal right to prepare and to base his defense on the invalidity of his arrest because of the constitutionally defective warrants. To compel him at the trial to meet a completely new justification for the arrests placed him at a serious disadvantage.

The police had the right to elect whether they should arrest defendant because they had probable cause to do so, or upon a warrant. They elected the latter alternative. Having made the arrest in a constitutionally defective manner they are bound by their election. Any other holding makes the securing and issuance of a warrant idle acts.

I would reverse the judgment.