I dissent. I would uphold the search under United States v. Robinson (1973) 414 U.S. 218 [38 L.Ed.2d 427, 94 S.Ct. 467] and Gustafson v. Florida (1973) 414 U.S. 260 [38 L.Ed.2d 456, 94 S.Ct. 488], for the reasons so well expressed by Justice Thompson for the Court of Appeal in this case. The pertinent portion of his incisive opinion, otherwise lost by our having granted hearing, is set forth below.1
“The Fourth Amendment to the United States Constitution and article I, section 19 [now section 13] of the California Constitution are essentially identical in wording. [Fn. omitted.] Decisions of the United *941States Supreme Court construing constitutional phraseology are highly persuasive. (Gabrielli v. Knickerbocker, 12 Cal.2d 85, 89 [82 P.2d 391]; Cohen v. Superior Court, 173 Cal.App.2d 61, 67 [343 P.2d 286]; 21 C.J.S., Courts, § 205, fns. 17 and 18, and cases there cited.) By the nature of federal and state jurisdiction, that court has acquired a degree of expertise not shared by any state court. Matters of constitutional import are likely to reach the United States high court on a cleaner record and to be better briefed than are similar issues in the state system. The persuasion of the United States Supreme Court decisions is particularly strong in the area of search and seizure and the exclusionary rule. California courts have for years spoken of the basis of the exclusionary rule as the Fourth Amendment. A sudden switch to a California ground to avoid the impact of federal high court decision invites the successful use of the initiative process to overrule the California decision with its concomitant harm to the prestige, influence, and function of the judicial branch of state government. [Fn. omitted.] The very purpose of the exclusionary rule, to deter unlawful police searches (Elkins v. United States, 364 U.S. 206, 222 [4 L.Ed.2d 1669, 1680, 80 S.Ct. 1437]; Linkletter v. Walker, 381 U.S. 618, 637 [14 L.Ed.2d 601, 613, 85 S.Ct. 1731]; Comment, Standing to Object to an Unreasonable Search and Seizure (1967) 34 U.Chi.L.Rev. 342, 352-359), requires that there be certainty in the ground rules of search and seizure. The more courts feel free to adopt ground rules unpersuaded by contrary decisions of other courts, the greater the likelihood there is of uncertainty in those ground rules. The uncertainty is mitigated if proper deference is paid United States Supreme Court holdings.
“Thus, something more than personal disagreement by a majority of members of a state court with the decision of the United States high tribunal on search and seizure is required if the persuasion of that court is not to be followed. [Fn. omitted.] Speaking of stare decisis in the context of constitutional law, Professor Philip B. Kurland states: ‘Certainly there is or should be something disturbing about the proposition that a watershed in constitutional law is marked not by changes in the constitutional text, as after the Civil War, nor by changes in social conditions that give rise to the problems to which the text is applied, as after the Great Depression. For, if the meaning of the Constitution is as fluid as the personal whims of the Court’s membership would make it, it is really no constitution at all. A set of principles setting bounds to government action and allocating governmental authority within those bounds is meaningless if nine Delphic oracles are permitted to divine its meaning and state it anew each time a question is proposed for *942resolution.’ (Kurland, 1971 Supreme Court Review (U.Chi. Press) pp. 265-266.) For the same reason, the state system should accept the interpretation of the United States Supreme Court of language" in the federal Constitution as controlling of our interpretation of essentially identical language in the California Constitution unless conditions peculiar to California support a different meaning. ‘ “Judges do not represent people, they serve people.” ’ (Wells v. Edwards, 347 F.Supp. 453, 455, citing Buchanan v. Rhodes, 249 F.Supp. 860, 865.) To do so, they must not represent a political or social point of view; they must serve the rule of law.”
Justice Thompson continues: “The intellectual integrity of our Supreme Court is not to be questioned by attributing to it adoption of a principle of decision solely to avoid review by the high court of the United States. Particularly is this true where by purportedly resting its decision upon both federal and California constitutional grounds that purpose would insulate the decision both from United States Supreme Court review and political action short of constitutional amendment to modify the law.”
McComb, J., concurred.
Previewing this dissent, tlje majority notes that Justice Thompson’s opinion is “now a nullity.” (Ante, p. 939, fn. 10) True, by granting hearing, this court nullified the opinion as judgment or authority. (Ponce v. Marr (1956) 47 Cal.2d 159, 161 [301 P.2d 837].) However, its persuasive appeal in a divided field of current legal concern is undiminished. (A bare majority voted to grant and transfer this cause to this court, McComb, Burke, and Clark, JJ„ voting to deny; see concurring opinion of Richardson, J„ ante.) Further, the practice of adopting the opinion below as a dissent is well-established in our court. (See, e.g., Crockett v. Superior Court (1975) 14 Cal.3d 433, 442-447 [121 Cal.Rptr. 457, 535 P.2d 321] (Mosk, J., dissenting).) Indeed, a nullified opinion is sometimes resurrected by the majority. (See People v. Reyes (1974) 12 Cal.3d 486, 500-507 [116 Cal.Rptr. 217, 526 P.2d 225].)
Perhaps out of excessive bicentennial spirit, the majority refers to article 1, section 24 of the California Constitution as a “declaration of constitutional independence.” (Ante, p. 939, fn. 10.) However, as the majority later admits, adoption of section 24 resulted in nothing more than a “reaffirmation of existing law.” (Id.) Therefore, it is insignificant that Justice Thompson’s opinion was rendered prior to the adoption of the section.