I dissent.
I am of the opinion that the consent given by Linda Reed did not operate as a consent by petitioner and therefore that the seized contraband cannot be used against him. One joint occupant of a residence who is present may under certain circumstances grant consent to search, which will be effective even to justify the seizure of the property of the. other occupant who is absent. Thus, in People v. Carter, 48 Cal.2d 737, 746 [312 P.2d 665], it was held that when the usual amicable relations exist between husband and wife, and the property seized is of a kind over which the wife normally exercises as much control as does the husband, the absent husband may be deemed to have given tacit consent to the wife to allow the search. But consent by an absent joint occupant is ineffective against a nonconsenting person who is present when the officers declare themselves. (Tompkins v. Superior Court, 59 Cal.2d 65 [27 Cal.Rptr. 889, 378 P.2d 113].) The Reed consent ought to be regarded as one made by an absent person, or at least to be regarded as analogous to such a consent. For although Miss Reed was present at the premises when the search was made, she did not then give or renew consent; the officers did not ask for it, but made it plain that they were operating on the consent attached to probation.
Moreover, the consent was essentially a personal and limited one. It was personal because it included the right to search even the probationer’s person—obviously this would not carry over to the person of anyone else. *174It was personal, too, in that it was something bargained for by the prospective probationer, who alone received a quid pro quo.1 It was limited in time, and a cotenant would not necessarily know that limit if, indeed, he knew of the probation at all. (I must disagree with the statement that a most reasonable inference is that Russi knew that Miss Reed was a probationer. In fact, she might well have desired that he not know of the probation. It is pure guesswork.) The consent was limited in place, to Napa County; true, the search took place there, but the point is that the consent was one drawn to suit the court which granted the probation, and not of the character of a fresh, unforced permission to make an immediate search of a particular place.
But I would not hold that Tompkins v. Superior Court, supra, forbids the search altogether. In deference to the necessities of the enforcement of probation and of the decision of People v. Mason, 5 Cal.3d 759 [97 Cal.Rptr. 302, 488 P.2d 630], I would hold that the search was valid insofar as it produced evidence against Miss Reed. I would hold, if Linda Reed were seeking relief, that hér antecedent consent deprived her of standing to protest search. But diminution of Fourth Amendment protection is justified only to the extent necessitated by the legitimate demands of the parole (or probationary) process (In re Martinez, 1 Cal.3d 641, 649 [83 Cal.Rptr. 382, 463 P.2d 734]). The demand, so far as it is legitimate, has been met. Linda Reed gave consent to search; the search was made; the contraband was produced against her, and she pleaded guilty.
But a joint occupant’s right of privacy in his home is not completely at the mercy of another with whom he shares legal possession. (Tompkins v. Superior Court, supra, 59 Cal.2d at p. 69.) It is to be noted, also, that the contraband was found in containers—a jewelry box, a leather pouch and a stationery box—nowhere else. The officers made no attempt to ascertain, even by simple questioning, whether these were Miss Reed’s, a procedure which would be indicated by People v. Cruz, 61 Cal. 2d 861 [40 Cal.Rptr. 841, 395 P.2d 889], and Beach v. Superior Court, 11 Cal.App.3d 1032, 1035-1036 [90 Cal.Rptr. 200]. If any, or all of them were Russi’s property, Miss Reed’s consent would be of no avail. (People v. Cruz, supra, at p. 867; People v. Terry, 2 Cal.3d 362 [85 Cal.Rptr. 409, 466 P.2d 961]; People v. Egan, 250 Cal.App.2d 433, 436 [58 Cal.Rptr. 627]; People v. Murillo, 241 Cal.App.2d 173 [50 Cal.Rptr. 290]; Beach v. Superior Court, supra.) Therefore, to sustain the prosecution’s theory *175of the case, it must be shown that the containers were Miss Reed’s, in order to use the contents against Russi as a person having joint control of those contents. There was no such showing. This is not a case in which the house must be divided theoretically into two dwellings, one for Russi and one for Miss Reed. It is one in which there was a warrantless search of property (the containers)—that was the only productive search, at least —the ownership of which was not established. But if it be thought that the jewelry box and, perhaps, the stationery box, were more likely Miss Reed’s than Russi’s, the antecedent consent given by her should not operate to allow the opening of her personal receptacles somehow to produce evidence against petitioner.
The cases of People v. Kanos, 14 Cal.App.3d 642 [92 Cal.Rptr. 614], and People v. Triche, 148 Cal.App.2d 198 [306 P.2d 616], present the exact opposite to the situation in the instant case. In each, the parolee attempted to take advantage of the rights of the nonparolee. Obviously, if a parolee (or probationer) could do this, he could avoid the condition of parole simply by living with someone not on parole. Neither in Kanos nor in Triche were the rights of the nonparolee before the court. There were statements in each that the nonparolee’s right to privacy was not infringed by the search—not that the nonparolee could not legitimately protest seizure of property to be used in a charge against him, and in neither was there question of the contents of a container.
I take note of the declaration in the majority opinion about the rationale of the exclusionary rule as stated in People v. Cahan, 44 Cal.2d 434, 449 [282 P.2d 905, 50 A.L.R.2d 513]. But the lawless conduct referred to throughout the search and seizure cases is not necessarily conduct characterized by bad faith, trickery, subterfuge, or peremptory assertion of unwarranted authority. Thus, although officers may be acting in all good faith under decisions which state the law at the time, of their actions, the searches may be invalid by reason of later decisions of the courts, e.g., People v. Superior Court (Simon) 7 Cal.3d 186 [101 Cal.Rptr. 837, 496 P.2d 1205]. The lawlessness in such cases is not of the kind which makes the officer a malefactor. In the case before us, I believe the search was unlawful as to Russi, even though the officers did act in accordance with the law in acting on Miss Reed’s consent so far as her property was concerned.
The conclusion reached by the majority would produce this result: The consent given by one guilty party, pleading for the leniency of the court in the form of probation, would make subject to search without warrant the living quarters of all persons (for a probationer may make her home *176with a number of other persons) who are within the same domicile. Thus, the consent of one given in court perhaps months or even years before the search would be multiplied in effect to become consent of many.
I would issue the writ.
Petitioner’s application for a hearing by the Supreme Court was denied August 22, 1973. Tobriner, J., Mosk, J.,' and Sullivan, J., were of the opinion that the application should be granted.
Even as to the acceding parolee or probationer the advance consent is given rather critical examination. (In re Martinez, 1 Cal.3d 641, 647 [83 Cal.Rptr. 382, 463 P.2d 734].)