The opinion
PETERS, J.
I dissent. The testimony of the officer reveals that he did not arrest on the basis of the circumstances relied upon by the majority to establish probable cause. To the contrary, it is apparent from his testimony that he did not intend to arrest until his search disclosed the drugs under Lavada King’s bed. In these circumstances the search was not incident to the arrest but was the cause of the arrest, and the officer should not be permitted to justify the search and the arrest on the basis of information which he obviously did not consider to justify the arrest and which did not furnish the basis for his actions. We so held upon closely analogous facts (In re Martinez, 1 Cal.3d 641, 646 [ 83 Cal.Rptr. 382 , 463 P.2d 734 ]; People v. Gallegos, 62 Cal.2d 176, 178 [ 41 Cal.Rptr. 590 , 397 P.2d 174 ]; see also People v. Hunt, 250 Cal.App.2d 311, 315 [ 58 Cal.Rptr. 385 ]) and the majority in upholding the arrest on the basis of information upon which the officer did not rely undermines the rule excluding evidence obtained in violation of the Fourth Amendment and repudiates these cases without mentioning them.
The majority fails to point out what Deputy Lambe’s testimony makes clear: The officers went to the apartment not to arrest defendant but to conduct a “narcotics investigation.” In the process of “investigating,” they searched under her bed and upon discovering contraband, arrested her. Since neither the information obtained from Deputy Butts nor the pill found in the living room 1 induced her arrest the only cause that remains is the discovery of contraband beneath her bed. It is apparent that from the first Gifford’s arrest was seen by the officers as an opportunity to get into Lavada King’s apartment to search for the contraband they believed might be there and if they found it, to arrest her.
They chose not to test the sufficiency of their cause to arrest or search, which the majority finds so convincing, by seeking a search or arrest *466 warrant' from a magistrate. Had they done so, they would, of course, have been forced to submit to the protective rigors of specificity and the disinterested eye of the magistrate. They would have been required to establish the time, date, occasion and circumstances of the purchase of contraband from Mrs. King and the reliability of the source of the information that she kept drugs under her bed. The only conclusion I can draw from their failure to obtain a warrant and the officer’s testimony concerning his intent and purposes in going to the apartment is that the officers themselves did not believe they had probable cause to arrest Mrs. King or obtain a search warrant.
The officer’s self-described conduct violates established rules of search and seizure.. Unless the officers entered defendant’s room and conducted their search incident to an arrest on probable cause, the warrantless search was impermissible and its fruits inadmissible. (See, e.g., Agnello v. United States, 269 U.S. 20 [ 70 L.Ed. 145 , 46 S.Ct. 4 ]; People v. Shelton, 60 Cal.2d 740, 744 [ 36 Cal.Rptr. 433 , 388 P.2d 665 ].) General exploratory searches designed to uncover contraband, even where officers have information as to its existence, are not permitted. (Chimel v. California, 395 U.S. 752, 762 [ 23 L.Ed.2d 685, 694-695 , 89 S.Ct. 2034 ]; Chapman v. United States, 365 U.S. 610, 614-615 [ 5 L.Ed.2d 828, 832-833 , 81 S.Ct. 776 ].) Nor may an arrest be used as a pretext for a search. (People v. Haven, 59 Cal.2d 713, 719-720 [ 31 Cal.Rptr. 47 , 381 P.2d 927 ]; People v. Mills, 148 Cal.App.2d 392, 401 [ 306 P.2d 1005 ].) Much less are officers permitted to enter a bedroom unbidden, particularly in the middle of the night, to “investigate.” (People v. Shelton, supra, 60 Cal.2d 740, 746-747 .)
The majority would permit such searches as long as some justification not contemplated by the officers can be made for them in court. I believe that this rule is contrary both to the policies underlying the exclusionary rule and California case law. I would hold the officers to their own description of their acts and invalidate the search.
The courts adopted the exclusionary rule in significant part to eliminate the incentive for law enforcement officers to obtain evidence for conviction by unlawful searches and arrests. As we said in People v. Cahan, 44 Cal.2d 434, 439 [ 282 P.2d 905 , 50 A.L.R.2d 513 ], “[I]t bears emphasis that the court is not concerned solely with the rights of the defendant before it, however guilty he may appear, but with the constitutional right of all of the people to be secure in their homes, persons, and effects.” Consequently, the exclusionary rule is “calculated to prevent, not to repair. Its purpose is to1 deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive *467 to disregard it.” (Elkins v. United States, 364 U.S. 206, 217 [ 4 L.Ed.2d 1669,1677 , 80S.Ct.1437].)
If the exclusionary rule is to be an effective means of controlling future police conduct, an officer’s own characterizations of his purposes and acts in carrying out a search is a critical factor. Today’s holding rewards a gamble. If the officer’s otherwise unlawful “investigation” yields contraband, he makes an arrest, and if the prosecuting attorney can unearth probable cause for arrest, he sees his labors rewarded. If the investigation yields nothing, he is free to search and leave, to return another day. This type of investigation and search for the purpose of finding evidence of crimes is precisely the kind of invasion into the privacy of the home the Fourth Amendment was designed to prevent. The majority’s holding, by permitting law enforcement officers to profit from their unconstitutional motivations, increases the probability of future unlawful searches.
Conversely, by excluding evidence so obtained, we encourage law enforcement officers to know and heed the limits of the Fourth Amendment. Moreover, we encourage the use of warrants for search and arrest, our greatest protection against illegal intrusions upon persons, houses, papers and effects of the people. (See, e.g., Chimel v. California, supra, 395 U.S. 752, 761 ( 23 L.Ed.2d 685, 692-693 ]; Terry v. Ohio, 392 U.S. 1, 12-13 [ 20 L.Ed.2d 889, 900-901 , 88 S.Ct. 1868 ]; Chapman v. United States, supra, 365 U.S. 610, 614-615 ; People v. Castro, 249 Cal.App.2d 168, 175 [ 57 Cal.Rptr. 108 ].)
This court has declared searches invalid in cases closely analogous to the instant one. In People v. Gallegos, supra, 62 Cal.2d 176 , the police conducted a search without probable cause. Because it later appeared that the defendant was a parolee, the prosecution sought to justify the search on the ground that a parolee’s home may be searched prior to an. arrest. We said: “Although under ordinary circumstances a parolee’s place of residence may be searched prior to an arrest [citations], in the instant case the status of the defendant as a parolee was not relied upon by the arresting officer. Hence, lacking evidence in this regard, the search of defendant’s premises which immediately followed the arrest, and the results thereof, could not be utilized in justification of the arrest.” (Id. at p. 178; italics added.) A recent case, In re Martinez, supra, 1 Cal.3d 641, 646 , reaffirms the principle set forth in Gallegos on virtually identical facts. (See also People v. Hunt, supra, 250 Cal.App.2d 311, 315 .)
In this case, as in Gallegos and Martinez, the police did not act upon information which would have justified their otherwise illegal search. Since the officers did not rely, in making the arrest, on the information *468 supplied by Deputy Butts, but rather on the contraband discovered under defendant’s bed, the rule of Gallegos and Martinez governs here.
People v. Chimel, 68 Cal.2d 436 [ 67 Cal.Rptr. 421 , 439 P.2d 333 ], in which this court held an invalid warrant does not render a search unlawful where there is probable cause is distinguishable. (See also People v. Castro, supra, 249 Cal.App.2d 168, 174-175 .) The policy reasons for upholding the search in that case are the very reasons' for invalidating it here. This court said, “ ‘First: Although certain nonwarrant arrests and searches are permissible, the policy of the law is to encourage officers to use search warrants. . . . Second: The rule which excludes evidence obtained by illegal searches was adopted [partially] for the purpose of eliminating the incentive for police officers to use illegal methods. [Citations.] . . . That principle does not call for a rejection of the evidence in this case. Here the officer was guilty of no wrongdoing except faulty draftsmanship. To invalidate the arrest here solely because the arresting officer first obtained a warrant supported by a constitutionally insufficient complaint would not further the policies of the Fourth Amendment but would subvert its preference for arrests and searches conducted pursuant to warrants.” (Id. at pp. 441-442; italics added.)
The justification for the majority holding in Chimel certainly does not exist in our case. To permit the introduction of the evidence obtained in the search in the instant case would reward officers for not obtaining warrants and would dilute the deterrent effect of the exclusionary rule.
There is an additional point on which I must take issue with the majority. While I am willing to concede that the scope of the search (assuming lawful arrest) was not overbroad by pre-Chimel standards, I cannot agree with the dicta suggesting that the search would be upheld after Chimel. The record reveals nothing about the size of the bed or the location of the paper bag beneath it. Unless the bag was within the defendant’s reach, the requirements of Chimel are not satisfied. I do> not believe that this court should rush in and declare that items under beds, without more, are lawful objects of a search under Chimel.
I would reverse the judgment.
Tobriner, J., and Sullivan, J., concurred.
“Q. You did not place her under arrest for possession of the pill that Mr. Williams said that he had found in the living room did you? [H] A. No, I did not.”