PETERS, J.
I concur in the portion of the majority decision holding that the search of the trash can was unlawful. I dissent, however, from the portion of the majority opinion that holds that the rule of Chimel v. California, 395 U.S. 752 [23 L.Ed.2d 685, 89 S.Ct. 2034] and the companion cases of Von Cleef v. New Jersey, 395 U.S. 814 [23 L.Ed.2d 728, 89 S.Ct. 2051], and Shipley v. California, 395 U.S. 818 [23 *1111L.Ed.2d 732, 89 S.Ct. 2053], applies only to searches which occurred subsequent to June 23, 1969, the date of those decisions.
In my view the rule announced in Ghimel applies to all pending cases. To hold that its rulings are purely prospective is an arrogant abuse of judicial power and a blatant exercise of legislative power, in prior opinions, I have stated in detail why this practice of rendering decisions purely prospective is contrary to the judicial function (e.g., People v. Feggans, 67 Cal.2d 444, 449 et seq. [62 Cal.Rptr. 419, 432 P.2d 21]; People v. Rivers, 66 Cal.2d 1000, 1005 et seq. [59 Cal.Rptr. 851, 429 P.2d 171]; People v. Rollins, 65 Cal.2d 681, 693 et seq. [56 Cal.Rptr. 293, 423 P.2d 221]), and I, will not further repeat those general views herein, but will instead set forth the specific reasons why the fair and effective administration of. justice requires that the rules adopted in Ghimel be applied to pending cases. In doing so, I shall accept the three criteria urged by the majority, the purpose of Ghimel, the burden on the administration of justice, and reliance by law enforcement officials.
In urging that the purposes of Ghimel will be served by purely prospective application, the majority totally ignore the considerations which led this court and the United States Supreme Court to adopt the rule excluding evidence obtained in violation of the Fourth Amendment’s proscription against unreasonable searches ánd seizures. Ghimel is part of that rule, and when those considerations are examined, it becomes apparent that the fair and effective administration of justice will not be served by the majority’s decision today but to the contrary will be greatly harmed. The majority’s arguments, to the extent that they are entitled to any weight, constitute a direct attack on the exclusionary rule itself rather than .furnishing a basis to refuse to apply Ghimel to pending eases.
In People v. Cohan, 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513], this court repudiated the old rule that evidence obtained by searches and seizures in violation of the Fourth Amendment was admissible on the ground that' ‘ other remedies have completely failed to secure compliance with the constitutional provisions on the part of police officers with the attendant result that the courts under the old rule have been constantly required to participate in, and in effect condone, the lawless activities of law enforcement officers.” We went on to amplify upon the two policies pointing out that out “of *1112regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ‘dirty business’ ” as the securing of convictions by unlawful searches and seizures, that the end that the state seeks in such searches and seizures, although laudable, no more justifies unlawful acts than a laudable end justifies unlawful action by any member of the public, that it is “morally incongruous for the state to flout constitutional rights and at the same time demand that its citizens observe the law,” that “any process of law that sanctions the imposition of penalties upon an individual through the use of the fruits of official lawlessness tends to the destruction of the whole system of restraints on the exercise of the public force that are inherent in the ‘concept of ordered liberty,’ ” that experience has demonstrated that neither administrative, civil, or criminal remedies are. effective in suppressing lawless searches and seizures, that appellate cases represent “only a small fraction of the viola> tions of the constitutional provisions that have actually occurred,” and that the constitutional provisions contemplate that it is preferable that some criminals go free than that the right of privacy of all the people be set at naught. (44. Cal.2d at pp. 445-449.) Similar views are expressed in Mapp v. Ohio, 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933].
Both of the fundamental policies reflected by Cahan and Mapp abe frustrated by the rule of prospective application adopted by. the majority. The immediate result of the refusal to apply Ghimel to pending eases means that the appellate and trial courts of this state will have a hand in the “dirty business” of securing convictions by the use of unlawfully obtained evidence. In these days, when so many people have taken to the streets in attack upon our institutions and in defiance of the fundamental concepts of ordered liberty, it is more than ever necessary that a court out of regard for its own dignity as- an agency of justice and custodian of liberty strive to maintain that dignity, vindicate constitutional rights, and encourage respect for a system of justice which does not sacrifice constitutional rights for expediency. Yet we are told today that a trial court may convict Mr. Edwards and others on the basis of evidence seized in violation of constitutional rights and, if so, appellate courts may affirm that conviction. Such a decision lends no dignity to our court system and does not encourage respect for our institutions or our law.
*1113Today’s decision of the majority not only means that trial and appellate courts of this state will knowingly and intentionally have a hand in the “dirty business” of securing convictions on the basis of evidence secured by law enforcement officials in violation of our constitutional guarantees but also frustrates to a substantial extent the second purpose of the exclusionary rule, to discourage unlawful searches and seizures by police officers in) the only effective way, removing the profits of such conduct. Of course, the unlawful search and seizure which has already occurred may not be undone. The thrust of the exclusionary rule is to deter unlawful searches and seizures in the future and to encourage police officers to secure evidence by legal rather than illegal means. (People v. Cahan, supra, 44 Cal.2d at p. 448.) The constitutional provision against unlawful searches is concerned with all searches both those which turn up evidence or contraband and those which involve a substantial and unconstitutional invasion of the right of privacy fail to turn up any evidence or contraband.
The accomplishment of these objectives, the encouragement of police officers to secure evidence by legal rather than illegal means and the deterrence of unlawful searches whether or not they turn up evidence or contraband, requires that the rules regarding the permissible scope of searches be made certain and that they be made certain without unnecessary delays.
To have- adopted the exclusionary rule in People v. Cahan, supra, which only in the broadest terms set forth the permissible scope of lawful searches, and then to have refused to determine expeditiously which searches are lawful and which are unlawful would have frustrated one or the other, or possibly both, of these objectives because police officers, when confronted with an opportunity to search for evidence, would often be uncertain as to whether they could lawfully obtain the evidence. Similarly, to refuse to expeditiously determine which searches are lawful and unlawful under Chimel will also frustrate to a substantial extent either the objective of encouraging officers to secure evidence by lawful rather than unlawful means or the objective of deterring unlawful searches, or both, because the applicability of Chimel in a variety of the most common situations is unclear.
The uncertainty of the applicability of Chimel to common situations is apparent. Chimel declared that the permissible scope under the Fourth Amendment of a search incident to, an *1114arrest is "the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence. There is no comparable justification, however, for routinely searching rooms other than that in which an arrest occurs — or, for that matter, for searching through' all the desk drawers or other .closed or concealed areas in that room itself.” (23 L.Ed.2d at p. 694.) Numerous questions arise under Chimel. When a police officer arrests a motorist who has stepped out of his automobile, he is immediately confronted with the broad legal question whether Chimel applies to arrests of motorists or is limited to arrests of persons in homes as was involved in Chimel, and the practical question whether he may search the car or any part of it. When a police officer arrests a pedestrian carrying a wrapped package or a locked suitcase, the officer must détermine whether Chimel applies to searches of pedestrians incident to an arrest and whether he may inspect the package or the suitcase. Even as to arrests occurring in homes, questions will arise as to what is meant by the phrase "the area ‘within his immediate control.’ ” Of course, numerous further questions could be listed, .but the point is clear.
The objectives of encouraging police officers to obtain evidence by lawful rather than unlawful means and of deterring unlawful searches requires that-the appellate courts of this state deal with these problems promptly in the ordinary, course of judicial review and that we do not delay consideration, as the majority does, for several years while eases involving searches occurring after June 23, 1969,' work their way through our judicial system.1 Such delays will mean that many police officers on the basis of an overly restrictive view of Chimel will engage in unlawful searches and that others in a conscientious effort to protect constitutional rights will forego opportunities to obtain evidence and contraband in situations where a search would not be unlawful. It is no answer to suggest that when in doubt an officer may seek a search warrant because it is not clear that officers will do so or that a search warrant is available in all situations where a search incident to arrest is permissible under Chimel.
*1115It thus is clear to me that the purposes of the exclusionary-rule will be advanced by applying Ghimel to pending appeals and that the majority in asserting the contrary is simply ignoring the purposes of the exclusionary rule. In this connection, the majority asserts that the police misconduct has already occurred and would not be corrected by releasing the prisoners involved and that “the exclusionary rule is but a procedural rule that has no bearing upon guilt or the fairness of the trial.” These matters, however, are true in every case where the exclusionary rule requires the release of a prisoner, and the argument goes, not to the issue of pure prospective application, but to the wisdom of the exclusionary rule itself. This court rejected such arguments in People v. Cahan, supra, 44 Cal.2d 434, 442-445, and aging has not given them any merit.
The other two criteria relied upon by the majority, burden on the administration of justice and reliance of law enforcement officials, do not warrant repudiation of the policies underlying the exclusionary rule and of the well settled principle that judicial decisions unlike legislative acts would be applied to pending appeals. There is no doubt that application of Ghimel will involve substantial burdens on trial and appellate courts, but much of this burden must be faced sooner or later by our courts when they are called upon to determine the applicability of Ghimel to numerous situations. In any event, when the relatively few pending cases are weighed against the numerous searches which officers will conduct during the period when the courts of this state refuse to consider the rules established by Chimel, it is apparent that the pending cases are merely the tip of the iceberg and furnish no justification to ignore its base. The business of and sole justification for the courts is declaring the law and determining controversies, and the possibility that the load of the courts will be lightened does not warrant -a refusal to declare or protect constitutional rights. Such rights rest on no such uncertain ground.
With regard to reliance of law enforcement officials, it must be first pointed o,ut that the majority opinion itself shows that this is a slender yeed upon which to premise a refusal to apply rules to pending appeals. The majority in holding that on the record before us the trash can search was unlawful disapprove People v. Bly, 191 Cal.App.2d 352, 354 [12 Cal.Rptr. 542], without regard to whether the officers in the instant case might have relied upon Bly in making their search. It has *1116never been held that the fact that an officer believes he acted lawfully renders the exclusionary rule inapplicable, and. this court should not so hold now.
Secondly, both the majority and'the dissent in Chimel recognize that the United States Supreme. Court had taken vacillating and somewhat inconsistent positions as to the permissible scope of a search incident to an arrest. (395 U.S. at pp. 755-761, 765, 770-772 [23 L.Ed.2d at pp. 689-692, 695, 698-699, 89 S.Ct. at pp. 2036-2039, 2041, 2044-2045].) As the majority there pointed out, a search of an entire home as incident to an arrest therein is not “supported by a reasoned view of the background and purpose of the Fourth Amendment” and that it would be “possible” to distinguish such a search from priop cases decided by the court.
Similarly, the cases of the appellate courts of this state had not laid down a.hard and fast rule with respect to the permissible scope of a search incident to an arrest. Thus, in People v. Cruz, 61 Cal.2d 861, 866 [40 Cal.Rptr. 841, 395 P.2d 889], we stated the rule that “a search is not ‘incidental to an arrest’ unless it is limited to the premises where the arrest is made; is contemporaneous therewith; has a definite object; and is reasonable in scope.” In Cruz, we held invalid a search which occured in a house a few feet from the place of arrest, and we pointed out that although the rule might appear arbitrary in some situations we were constrained to adopt it and clarify it for those who must work under it in the field. In accordance with the Cruz rule as to definite object, cases of this state have limited the right to search incident to arrest and held unlawful exploratory searches which occur following the arrest. (People v. Baca, 254 Cal.App.2d 428, 430-431 [62 Cal.Rptr. 182]; People v. Mills, 148 Cal.App. 2d 392, 398 [306 P.2d 1005] ; see People v. Vasquez, 256 Cal.App.2d 342, 346 [63 Cal.Rptr. 885].)
On the other hand, as the majority point out, there are cases by the courts of this state which greatly expanded the right to search incident to arrest. Courts in this state have also seemed to expand the test enunciated in Cruz. Thus People v. Davis, 231 Cal.App.2d 180, 184-185 [41 Cal.Rptr. 617], and People v. Aleria, 193 Cal.App.2d 352, 357-358 [14 Cal.Rptr. 162], seem to extend the strict rule of Cruz as to premises where the arrest occurred. The requirement of Cruz of a definite object has been diluted to the extent that it is satisfied by a general purpose on the part of the arresting officers to find' contraband or fruits or instrumentalities of the crime. *1117(Cf. People v. Cockrell, 63 Cal.2d 659, 667 [47 Cal.Rptr. 788, 408 P.2d 116]; People v. Rogers, 270 Cal.App.2d 705, 709-711 [75 Cal.Rptr. 919].) In other words, general .exploratory searches incident to an arrest seem to be permitted under some authorities.
Although cases of the United' States Supreme Court and of the courts of this state had recognized a right to search premises incident to an arrest and limitations on the right, those rules were by no means well established or entirely consistent. As recognized by Chimel and by United States v. Rabinowitz, 339 U.S. 56, 63, 66 [94 L.Ed. 653, 658, 660, 70 S.Ct. 430], the main case overruled by CMmel, the reasonableness of searches depends upon the facts and circumstances, and the courts have not been consistent in determining what principles are to be applied in determining reasonableness. CMmel establishes that reasonableness is to be determined by viewing the facts and circumstances in the light of established Fourth Amendment principles. Certainly this is not new law. We have applied the rule that reasonableness must be determined in the light of Fourth Amendment principles as early as People v. Brown, 45 Cal.2d 640, 644 [290 P.2d 528], and People v. Simon, 45 Cal.2d 645, 648 [290 P.2d 531], In this sense CM-mel is not new law but merely determines within the rule recognized in People v. Cruz, supra, 61 Cal.2d 861, 866, what searches are “reasonable in scope.” When we decided what searches were on the premises, reliance on preexisting law or the absence of cases considering the question was not deemed grounds to refuse to apply the new rules to pending cases. Likewise, such reliance has not prevented application of the definite object rule to pending cases. I see no reason why reliance on preexisting cases should preclude application of the CMmel rule determining the scope of searches incident to an arrest.
Moreover, even assuming that on the basis of reliance we should hold that CMmel is not applicable to some pending eases, it certainly should be applied to cases, such as the present one, where there was a conflict in the authorities as .to whether the search was lawful and where there is no reason to believe that the prosecution was prejudiced because it was unaware of the CMmel rule. As noted above, in Cruz this court required a definite object of a search incident to an arrest although we did not spell out what was meant by this requirement. A similar requirement is recognized by the- dissenting opinion in CMmel, where Justice White states that to *1118go beyond a search of the arrested man and of the items within his immediate reach, there must be “probable cause to believe that seizable items are on the premises.” (395 U.S. at p. 773 [23 L.Ed.2d at p. 700, 89 S.Ct. at p. 2046].)
In the instant case prior to the arrest of defendant and the search of his house, the officers had seized from the trash can all of the contraband they had reason to believe was possessed by defendant. They had no information indicating1 that defendant had additional marijuana or drugs or that evidence might be found by a search. None of the cases cited by the majority nor any that I am aware of have permitted a search of a home, literally from top to bottom, in the circumstances presented here, and there is no basis for the officers involved in the search to claim that they were relying on judicial decisions authorizing such a search.
Nor do I find any prejudice to the prosecution by application of the Chimel rule in the instant cáse. This is not a case where had the officers been aware of the Chimel rule they might have obtained a search warrant and seized the contraband found in the search after the arrest. Probable cause is an essential requirement for a search warrant (see Witkin, Cal. Evidence (2d ed. 1966) p. 124), and the officers did not have probable cause to believe that there was contraband in the house. With respect to the narcotics found in his home, this appears to be one of those eases referred to in People v. Cohan, supra, 44 Cal.2d 434, 449, where had “the Constitution been obeyed, the criminal could in no event be convicted. ”2 The prosecution should not be placed in a better position than had it been aware at all times of the Chimel rules.
I agree with the view expressed by Justice Harlan, the only member of the United States Supreme Court who has taken a position on the issue, that Chimel should apply to pending appeals. (See concurring opinion, Von Cleef v. New Jersey, supra, 395 U.S. 814, 817 [23 L.Ed.2d 728, 731, 89 S.Ct. 2051, 2053].)
On October 23, 1969, the opinion was modified to read as printed above.
it is true that the United States Supreme Court and this court have held that the question of unlawful search and seizure may not he raised on habeas corpus after conviction. (Linkletter v. Walker, 381 U.S. 618 [14 L.Ed.2d 601, 85 S.Ct. 1731]; In re Lessard, 62 Cal.2d 497 [42 Cal.Rptr. 583, 399 P.2d 39].) However, refusal to permit the question to be raised on collateral attack does not frustrate the purpose of deterrence so long as the question can be raised in pending eases.
As was also pointed out in Cohan, our Constitution contemplates that it is preferable that some criminals go free than that the right of privacy of all citizens he set at naught. (44 Cal.2d at p. 449.)