I dissent.
I agree with the majority that the information supplied by Mr. Simpson did justify investigation by the police but did not constitute probable cause to conduct a search. It is clear, as the majority themselves assume, that the manner in which the officers conducted the investigation—by looking through the dining room windows while trespassing in the shrubbery outside—violated petitioners’ constitutional right of privacy. Since the arresting officer expressly testified that the only evidence upon which he relied to arrest petitioners and their guests was that obtained by the illegal observations at the windows, the arrests and incidental search of the house are invalid. Moreover, even if in making the arrests the arresting officer had in fact relied on the odor of marijuana which he detected upon opening the front door—as the majority incorrectly presume despite the officer’s express statements to the contrary—the consent to his entry was invalid because the prosecution did not sustain its burden of establishing that the arresting officer reasonably and in good faith believed he had the consent to enter of an authorized person; since the consent was invalid, it cannot serve to dispel the “taint” inherent in the illegal search at the windows.
The majority note at the outset that—as conceded by respondent—at the time the police officers entered petitioners’ property to observe what was going on inside the house, they lacked either a warrant or probable cause to conduct a search. The majority then assume without deciding that the officers violated petitioners’ constitutional right to privacy by looking through the windows while trespassing in the shrubbery outside. This assumption is well warranted under the law of this state. (People v. Bradley, 1 Cal.3d 80, 84 [81 Cal.Rptr. 457, 460 P.2d 129]; see People v. Edwards, 71 Cal.2d 1096, 1100, 1104 [80 Cal.Rptr. 633, 458 P.2d 713]; People v. Myles, 6 Cal.App.3d 788 [86 Cal.Rptr. 274].)
In People v. Bradley, supra, 1 Cal.3d 80, 84, this court held that where the police lack either a warrant or probable cause to conduct a search, the appropriate test for determining the legality of the search is “whether the person has exhibited a reasonable expectation of privacy, and, if so, whether that expectation has been violated by unreasonable governmental intrusion (People v. Edwards, 71 Cal.2d 1096 [80 Cal.Rptr. 633, 458 P.2d 713], and cases cited therein).”
The premises in Bradley consisted of a house that faced the street, a *11driveway that ran along the east side of the house and terminated in a garage at the rear and east of the house, defendant’s residence which was attached to the rear of the garage, and a large “fenced in yard” to the west of defendant’s residence. The officer, acting, on a tip from an informant of unknown reliability that defendant was growing marijuana near a fig tree in the yard, went into the yard to investigate. The marijuana, which was growing in a keg at the base of the fig tree, was partially covered by the leaves of the tree and was not identifiable from the walk along the side of the garage. The tree was about 20 feet from defendant’s door. It was necessary for the officer to leave the walk and cross the yard to within almost a foot of the tree to identify the marijuana. A majority of this court held that defendant did not exhibit an expectation of privacy as to the marijuana plants, since they were only partially covered by foliage and were “located a scant 20 feet from defendant’s door to which presumably delivery men and others came, . . .” there being no physical barriers between the walkway and the yard itself. (1 Cal.3d at p. 85.)
Applying the Bradley test to the facts of the present case, it is clear, first, that the petitioners did exhibit a reasonable expectation of privacy and, second, that the degree of privacy to which they were entitled in the circumstances rendered the particular form of governmental intrusion unreasonable. Unlike the physical surroundings in Bradley, the house here was on an acre of ground. There were many trees on the property, including a grove of orange trees behind and along one side of the house. There was shrubbery at a number of places on the grounds. A 50-foot long wall ran along one side of the property. The front yard was two feet below the level of the sidewalk at the east end of the premises and sloped down towards the west end, where it was four feet below sidewalk level. There was a retaining wall along this line of the property. The testimony does not disclose whether the wall extended above the level of the sidewalk. The grounds surrounding the house were obviously not shared with any other house. All in all, the record suggests that the physical layout of the premises by itself may have unambiguously warned the public that the occupiers of the house considered the ground area surrounding it to be private and off-limits to all but invited guests.
If the police had done no more than trespass across the yard to obtain their view of the activities inside the house, it might be necessary to consider further the nature of the physical surroundings and the degree to which those surroundings made it clear that the areas where the police trespassed were intended to be private. However, the officers did not stop at trespassing across the grounds. They also went behind the bushes alongside the house, a place where no member of the public had a right to be. Petitioners’ expectation of privacy in such a place was entirely reasonable.
*12The testimony was in conflict as to how far the shades were drawn on the windows. Petitioner Wright testified that they were within an inch or two of the sill. Petitioner Mann put the figure at less than four or five inches. Lieutenant Olmos stated that the shades weré about two to three feet from the sill. The testimony was uncontradicted, however, that the bushes extended above the sill and brushed against the windows. Although it is not clear whether they extended all the way to the shades or how dense they were at that height, Lieutenant Olmos did admit on cross-examination that he could not see clearly into the dining room without stepping between the bushes and the house. Whether or not the officers acted reasonably in crossing the property and approaching the bushes, they were there confronted with a barrier of shrubbery, drapes, curtains, and shades which made it nearly impossible for them to see inside without penetrating further into the space between the bushes and the house. Considering the height and density of the bushes, their distance from any public walkway, and their closeness to the house, petitioners’ belief that the area between the bushes and house was and would remain private was reasonable.
I am further satisfied that the particular form of governmental intrusion disclosed by the evidence was unreasonable. There were no exigent circumstances present which might have justified a search on the basis of suspicion less than probable cause,1 nor did the officers make any attempt to investigate by other means or to substantiate the trustworthiness of their informant by querying him as to the source of his information. The nature of the complaint they had received made it unreasonable for them to head straight for the bushes.
It is thus clear that—as the majority themselves assume—the officers violated petitioners’ constitutional right to privacy by looking through the windows while trespassing in the shrubbery outside. • ■ '
However, the majority uphold the arrests of' petitioners and their guests by arguing: (1) even assuming that the officers would not have approached the front door “but for” their observations at the windows, any “taint” flowing from these observations was “dispelled” by the consent of two of the occupants; and (2) the odor of marijuana smoke detected by Lieutenant Olmos after he opened the door and entered the house upon being given *13such consent, “independently of what he saw through the windows,” gave him probable cause to arrest petitioners and their guests.
The majority’s argument is not sound, since it completely ignores the testimony of Lieutenant Olmos that, in making the arrests, he relied solely and exclusively on the evidence obtained by his illegal observations, and that he did not rely to any extent whatsoever on the odor of marijuana smoke: “Q [by defense counsel] As you were knocking on the door, at that time you intended to arrest all the occupants of that house except the three which you followed in, is that correct? A [by Lieutenant Olmos] Correct. Q And you had reached that conclusion after seeing what you saw in the window? A That is correct. Q And, therefore, when you walked into the house and smelled the odor of marijuana, that certainly did not contribute to your conclusion in that regard, is that correct? A Just confirmed my suspicions. Q But it was an element, as far as you are concerned, of reaching that particular conclusion? A No, sir. Q I beg your pardon? A No, sir.”
Terry v. Ohio (1968) 392 U.S. 1, 21 [20 L.Ed.2d 889, 905, 88 S.Ct. 1868], requires that the police officer point to the facts upon which he relied in acting as he did. Courts are not free to uphold searches on theories negated by the officer’s own statements. “Information which may be available to an arresting officer, but upon which he did not rely in making an arrest cannot be used to justify the arrest.” (People v. Hunt, 250 Cal.App.2d 311, 315 [58 Cal.Rptr. 385]; cf. People v. Gallegos, 62 Cal.2d 176, 178 [41 Cal.Rptr. 590, 397 P.2d 174].)
I do not dispute the majority’s holding that the odor of marijuana smoke may in some cases constitute probable cause for an arrest. However, this court cannot uphold the arrests in the instant case on the ground that the odor of marijuana smoke provided the arresting officer with probable cause for the arrests when the officer himself specifically stated that he did not rely to any extent whatsoever on the odor of marijuana smoke in making the arrests.
Since, according to his own testimony, the only evidence upon which Lieutenant Olmos relied to arrest petitioners and their guests was that obtained by his illegal observations at the window, the arrests and the incidental search of the house are invalid.
Moreover, even if Lieutenant Olmos had in fact relied on the odor of marijuana smoke for probable cause to arrest, the arrests would be invalid. The majority argue that the occupants’ consent to entry dispelled any taint flowing from the officers’ observations at the window. However, the consent to Lieutenant Olmos’ entry, if invalid, cannot serve as an intervening inde*14pendent act so as to dispel the “taint” inherent in the illegal search at the window. (Cf. People v. Superior Court, 71 Cal.2d 265 [78 Cal.Rptr. 210, 455 P.2d 146].) And, in my opinion, the consent was clearly invalid.
If the prosecution is to rely upon a consent to enter a house, it has the burden of establishing that the police officers reasonably believed in good faith that they had the consent of a person authorized by the resident to give that consent. (People v. Roberts, 47 Cal.2d 374, 377 [303 P.2d 721]; see also People v. Johnson, 68 Cal.2d 629, 632 [68 Cal.Rptr. 441, 440 P.2d 921].) In the instant case, no attempt was made to establish such a belief, and the evidence clearly indicates that no such reasonable, good faith belief existed.
Lieutenant Olmos testified that, after he knocked on the door a second time, he heard a male and female voice say, almost simultaneously, “Come in,” and that he thereupon opened the door and entered. He never suggested that he believed either voice belonged to one of the residents; indeed, he must have known that the female voice could not have belonged to a resident, since he had been informed by Chief Graefe that the residents were males. And it is not reasonable to assume, without more, that every person present at a large party is authorized by the resident or residents to consent to entry by others. “There is no reasonable basis for a general assumption that every person who happens to be in a house has authority to permit police officers to do acts on the premises which they could not legally do without such permission.” (People v. Carswell, 149 Cal.App.2d 395, 401 [308 P.2d 852] [holding that police officers could not reasonably and in good faith believe that a man who was painting the premises and who opened the street door when the officers knocked was authorized to permit the officers to enter]; see also People v. Jennings, 142 Cal.App.2d 160,168-169 [298 P.2d 56].)
Lieutenant Olmos could not tell whether the three men. who preceded him into the house were admitted into the house by those within or opened the door and entered themselves. As far as he knew, they could have been the residents or close friends who were authorized to, and did, enter without an invitation. Thus it cannot be argued that Lieutenant Olmos could reasonably have believed that he was admitted in an authorized manner because he was admitted in the same manner in which he observed the three men to be admitted.
Since the prosecution did not sustain its burden of establishing that Lieutenant Olmos reasonably and in good faith believed that he had the consent to enter of a person or persons authorized to give that consent, the consent *15is invalid, and, as such, cannot serve to dispel the “taint” inherent in the illegal search at the windows.
In sum, the officers violated petitioners’ constitutional right to privacy by looking through the windows while trespassing in the shrubbery outside—as the majority assume. Since the only evidence upon which the arresting officer relied to arrest petitioners and their guests was that obtained by such illegal observations, the arrests and the incidental search of the house are tainted and therefore invalid. Moreover, even if the arresting officer had in fact relied on the odor of marijuana smoke to make the arrests—as the majority incorrectly presume despite the officer’s express statements to the contrary—the consent to his entry was invalid and therefore could not serve to dispel the “taint” flowing from the illegal search at the window.
I would issue mandate.
The application of petitioner Mann for a rehearing was denied September 3, 1970. Peters, J., was of the opinion that the petition should be granted.
For example, if the police were in hot pursuit of an armed suspect whom they knew had taken refuge in one of several houses, they might well be justified in making an exploratory search of those houses in the manner held unlawful here. Such a search would presumably be reasonable in light of the imminent danger to themselves and to innocent citizens.