I dissent. I agree with my colleagues that the legality or illegality of the first search of the apartment is immaterial. Nothing in the record shows either that anything then found contributed to defendant’s conviction or that Officer Beasley and his partner knew that the first search had occurred.
However, I feel that the second search was illegal. Since evidence thereby secured was the sole evidence to support the verdict on count III, and contributed to the proof on count I, its illegality demands a reversal.
The crime report and the interrogation with the victim of the rape-robbeiy-kidnaping charge gave him reasonable cause to arrest both defendant and his roommate. And I must accept, as the trial court did, the fact that he believed that one or both suspects might be in the apartment. But the record is silent as to any attempt to comply with section 844, nor does the officer’s testimony contain any claim that, at the time of entry, he regarded himself in danger. He simply talked the manager into giving a consent to enter which she had no right to give and, acting on that consent, entered. In short, if the officer did not believe that at least one suspect was in the apartment, he had no right to enter at all; if he believed someone was present, the record shows no grounds for the total noncompliance with section 844—a matter as to which the People had the burden of proof.
When the officer was asked about the entry, as distinguished from the waiting, he was totally silent as to any fear of danger. The testimony giving the greatest detail about the entry itself was as follows:
“The Court: . . . You said that the landlady accompanied you to the apartment?
“The Witness [Officer Beasley]: Yes, your Honor. She walked through the hallway with me and my partner. She did so to point out the defendant’s apartment. He had moved from the location that I previously was aware of.
*274“The Court: Was the door locked?
“The Witness: To the best of my recollection, the door was pulled to. And it required a key. However, I did see some lock damage.
“The Court: Well, how did you actually get into the apartment? How did you physically get into the apartment? Was the door ajar?
“The Witness: No. To the best of my recollection, the landlady opened the door.
“The Court: She opened the door for you?
“The Witness: Yes, sir.”
As I have said above, I must accept the trial court’s implied finding that the officer actually believed that either defendant or his roommate were in the apartment. But, if he did so believe, the mode of entry is not that to be expected where the officer reasonably anticipates that his entry will be met with armed resistance. An officer who believes that an armed and violent man awaits him inside an apartment does not stand outside, engaging in conversation with a landlady, and then have her use a key to open the door. Nothing in this record suggests that the officer was guilty of using the landlady as a cat’s-paw to draw anticipated gunfire away from him. We cannot ascribe such conduct to him. It follows that the entry was illegal and the fruits of that entry were inadmissible.
The People argue that the illegality of the entry played no part in the ultimate arrest and conviction. I disagree. They argue that the officer could have waited, outside the apartment, and arrested the roommate as he approached and that the entry, and the waiting inside merely made easier (and possibly safer) an arrest already foredoomed to take place. But it is not the arrest of the roommate that is here questioned, but the search that followed. An arrest outside the apartment would not have justified a search of the apartment; but, by arresting the roommate inside the apartment, the officer had a basis for a search of the apartment, and that search not only led to identifying defendant as a participant in the crimes herein involved, but produced evidence introduced against him at the trial. The illegal entry, thus, was a direct cause of the damaging search and the product of that search could not validly be used against him. The motion to suppress should have been granted.
Appellant’s petition for a hearing by the Supreme Court was denied July 29, 1970. Peters, J., and Tobriner, J., were of the opinion that the petition should be granted.