The opinion
MOSK, J.
I concur in the judgment and in the scholarly analysis by the Chief Justice. However I have considerable difficulty with the rationale of footnote 18.
It is comforting that People v. Marshall (1968) 69 Cal.2d 51 [ 69 Cal. Rptr. 585 , 442 P.2d 665 ] “is no longer to be followed,” but unfortunately the footnote in which that conclusion is reached also contains some confusing equivocation. In short, I agree with the People that this case is controlled by Marshall factually and legally; therefore the result reached here calls for a forthright overruling of Marshall .
In the instant case we conclude that the officer’s movement was justified as a warrantless search and that he “thus infringed no constitutional mandate” (ante, p. 10). In Marshall even the majority conceded that the officers were properly inside the premises. ( 69 Cal.2d at p. 56 .) In this case the officer saw only “a shopping bag with the opening squared shut”; in Marshall the contraband was not in plain sight because it was contained *20 in “a closed brown paper bag” (id. at p. 56). In this case the “distinctive odor of hashish . . . seemed to come directly from the vicinity of the bag” (ante, p. 5); in Marshall the odor came from the “closed brown paper bag” ( 69 Cal.2d at p. 55 ).
All the majority of the sharply divided court permitted in Marshall was that “officers may rely on their sense of smell to confirm their observation of already visible contraband” (italics added; 69 Cal.2d at p. 59 ). It was that unreasonable restriction which I decried in my dissent (id. at p. 63). I insisted then, and continue to believe, that the sense of smell, and indeed all the senses, may be employed, not merely in confirmation of what is already visible, but in equal weight with the sense of sight in the determination of probable cause to search and seize. For illustrations that demonstrate the impracticality of limiting valid discovery of evidence to that which is seen, or to the use of other senses merely in corroboration of what is already known or visible, see my dissent in Marshall (at p. 66).
For the reasons stated and in reliance upon the authorities cited in my dissent therein, I would expressly overrule Marshall more forthrightly than my colleagues do in footnote 18 of their opinion.
McComb, J., Burke, J., and Clark, J., concurred.