Defendant was convicted of possession of marijuana (Health & Saf. Code, § 11530), and it was found that he had previously been convicted of the same offense. A motion for a new trial was denied, and he was sentenced to prison. He appeals, contending that the trial court over objection improperly admitted marijuana obtained in an illegal search. We have concluded that the trial court’s failure to find whether there was a valid consent to the search requires a reversal of the judgment.
The sole prosecution witness was Los Angeles Police Officer Smith, whose testimony may be summarized as follows:
About June 7, 1965, an informant told the police that a *844man named “Johnny” who lived at a specified hotel sold marijuana and that the informant had heard that there was marijuana in “Johnny's” room. The informant also gave the police a description of “Johnny.” Smith considered the informant to be reliable, having on two prior occasions received information from him that led to described arrests. Several days before receiving the foregoing information, Smith had received similar information from another informant.
On June 13, 1965, Smith and his partner Watts, without a warrant of any kind, went to the hotel. On the sidewalk in front of the hotel they saw defendant, who “appeared to be gambling” with a group of persons. He fit the description given by the informants. The officers asked him his name and address, and, when he replied “John Lee Henry” and that he lived at “this location,” they told him he was under arrest “for gambling and also for suspicion of narcotics” and handcuffed his hands behind his back. The arrest was made on the sidewalk 10 to 12 feet from the hotel entrance. After the arrest the officers searched defendant’s person and found a key to his hotel room. In response to an inquiry by the officers, defendant denied having any narcotics in his room. The officers inquired if he objected to their searching the room, and he replied that he did not. They led him to his room, which was on the second floor of the hotel, unlocked the door, and on searching the room found marijuana.
At the end of Smith’s testimony defendant objected to the admission of the marijuana on the ground that it was obtained in an illegal search. During the ensuing discussion the court indicated that it doubted that there was an effective consent to the search but that it was unnecessary for counsel to argue the question of consent because the court was of the view that there was “probable cause to have searched the premises.”1 The court declared that it overruled the objection on that basis.
Defendant thereafter took the stand in his own defense and testified that the arresting officers never asked him for permission to search his room and that he never told them they could *845make the search. He also denied any knowledge of the marijuana found in his room.
At the close of defendant’s testimony his attorney renewed his objection to the marijuana, and the court, without discussion, overruled the objection.
Since the search was made without a warrant, the burden was on the prosecution to show proper justification. (People v. Faris, 63 Cal.2d 541, 545 [47 Cal.Rptr. 370, 407 P.2d 282]; People v. Cruz, 61 Cal.2d 861, 865 [40 Cal.Rptr. 841, 395 P.2d 889]; People v. Shelton, 60 Cal.2d 740, 744 [36 Cal.Rptr. 433, 388 P.2d 665] ; People v. King, 60 Cal.2d 308, 311 [32 Cal.Rptr. 825, 384 P.2d 153]; People v. Haven, 59 Cal.2d713, 717 [31 Cal.Rptr. 47, 381 P.2d 927].)
The search cannot be justified on the ground that the officers had reasonable cause to believe that narcotics were in defendant’s room. Even if it were assumed that they had reasonable cause for so believing, a search of the room without a warrant could be justified only as an incident to a lawful arrest or pursuant to a valid consent. As the United States Supreme Court stated in Chapman v. United States, 365 U.S. 610, 613 [5 L.Ed.2d 828, 81 S.Ct. 776], “Until Agnello v. United States, 269 U.S. 20 [70 L.Ed. 145, 46 S.Ct. 4, 51 A.L.R. 409], this Court had never directly decided, but had always assumed, ‘that one’s house cannot lawfully be searched without a search warrant, except as an incident to a lawful arrest therein’ (id., 269 U.S. at page 32 [70 L.Ed. at p. 149, 46 S.Ct. at p. 6, 51 A.L.R. at p. 413]), but that case decided that ‘Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are . . . unlawful notwithstanding facts unquestionably showing probable cause.' Id., 269 U.S. at page 33 [70 L.Ed. at p. 149, 46 S.Ct. at p. 6, 51 A.L.R. at p. 414].” (See also People v. Burke, 61 Cal.2d 575, 579 [39 Cal.Rptr. 531, 394 P.2d 67] ; People v. Shelton, 60 Cal.2d 740, 744 [36 Cal.Rptr. 433, 388 P.2d 665]; People v. Edgar, 60 Cal.2d 171, 175 [32 Cal.Rptr. 41, 383 P.2d 449].)
Irrespective of whether there was probable cause for the arrest, the search cannot be justified as incident thereto since the arrest was made on the sidewalk several feet from the hotel entrance and the search was of defendant’s room on the second floor of the hotel. A search is not incident to an arrest unless, among other things, “it is limited to the premises where the arrest is made.” (People v. Cruz, supra, *84661 Cal.2d 861, 865-866; People v. Delaney, 239 Cal.App.2d 122, 123-124 [48 Cal.Rptr. 408]; Hernandez v. Superior Court, 143 Cal.App.2d 20, 23 [299 P.2d 678]; see Witkin, Cal. Evidence (2d ed. 1966) §§ 119, 120, pp. 120-122.) The United States Supreme Court has similarly declared that a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and “is confined to the immediate vicinity of the arrest. ’ ’ James v. Louisiana, 382 U.S. 36, 37 [15 L.Ed.2d 30, 86 S.Ct. 151]; Stoner v. California, 376 U.S. 483, 486 [11 L.Ed.2d 856, 84 S.Ct. 889].)
Nor can we, as urged by the Attorney General, uphold the search on the theory that defendant consented to it. As we have seen, the trial court expressed doubts as to whether there was a valid consent to the search but appears to have made no determination of the question because it concluded that there was probable cause for the search. There was conflicting evidence as to whether defendant told the officers they could search his room, and we cannot assume that the trial court would have resolved this conflict in favor of the People. (People v. Frank, 225 Cal.App.2d 339, 342 [37 Cal.Rptr. 202]; cf. People v. Robarge, 41 Cal.2d 628, 633-634 [262 P.2d 14].) Even if it were found that there was apparent consent by defendant to the search, the further question would be presented as to whether that consent was voluntarily given or was in submission to an express or implied assertion of authority. (People v. Carrillo, 64 Cal.2d 387, 392-393 [50 Cal.Rptr. 185, 412 P.2d 377]; People v. Smith, 63 Cal.2d 779, 798-799 [48 Cal.Rptr. 382, 409 P.2d 222]; Castaneda v. Superior Court, 59 Cal.2d 439, 442-443 [30 Cal.Rptr. 1, 380 P.2d 641]; People v. Fischer, 49 Cal.2d 442, 448 [317 P.2d 967]; People v. Michael, 45 Cal.2d 751, 753 [290 P.2d 852].)
If there was no apparent consent or if such consent was not voluntarily given, it is unnecessary to consider whether valid consent can be found in the absence of proof that defendant was advised of his constitutional rights pertaining to searches (see e.g. United States v. Nikrasch, 367 F.2d 740, 744) or whether the arrest was lawful. A search and seizure made pursuant to consent secured immediately following an illegal arrest or entry are, of course, inextricably bound up with the illegal conduct and cannot be segregated therefrom. (People v. Haven, supra, 59 Cal.2d 713, 718-719; People v. Theobald, 231 Cal.App.2d 351, 357 [41 Cal.Rptr. 758]; see Witkin, Cal. Evidence (2d ed. 1966) § 79, p. 76.)
*847The marijuana was the main evidence introduced against defendant, and it was inadmissible if there was not an effective consent to the search. The trial court’s failure to determine that question was prejudicial error. (Cal. Const., art. VI, § 13 ; People v. Watson, 46 Cal.2d 818, 836 [299 P.2d 243].)
The judgment is reversed. The order denying a new trial is not appealable (Pen. Code, § 1237; People v. King, supra, 60 Cal.2d 308, 309), and defendant’s appeal therefrom is dismissed.
Traynor, C. J., Peters, J., Tobriner, J., Mosk, J., and Sullivan, J., concurred.
The court stated, "I’m inclined also to eliminate the defendant’s consent to search his room under the circumstances under which he was held and—" (Italics added.) The prosecutor interrupted and began to argue the question of consent. The court then stated that "Under the circumstances of the arrest and the handcuffing and—I wouldn’t—if that were the only item I wouldn’t rule. You don't have to argue," and the court went on to explain its basis for considering the search lawful.