Mapp applies to cases not yet final
How later courts described this case
- Mapp applies to cases not yet final
Written by the judges who cited it.
The opinion
SPENCE, J.
I concur in that portion of the majority opinion which states that “Although we adhere to the rule *265 that ordinarily the admissibility of evidence will not be reviewed on appeal in the absence of a proper objection in the trial court, we conclude that it is not applicable to appeals based on the admission of illegally obtained evidence in cases that were tried before the Cahan decision.”
I dissent, however, from those portions of the decision which hold that the evidence was illegally obtained. I am of the opinion that the arrest was a lawful one and that the search made as an incident to such lawful arrest was a reasonable search rather than an unreasonable search. (See dissenting opinion in Badillo v. Superior Court, post, p. 269 [ 294 P.2d 23 ].)
I would affirm the judgment and order denying a new trial.
Respondent’s petition for a rehearing was denied March 21, 1956. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.