I respectfully dissent. The majority affirm the superior court’s grant of a petition for habeas corpus. In my opinion, the superior court should not have even reached the merits of the petition. Instead, it should have summarily denied it on the ground that Daniel A. Quackenbush had an adequate remedy at law.
Quackenbush was charged in the municipal court with two misdemeanors. He brought a motion to suppress evidence on Fourth Amendment grounds. When it was denied, his pretrial remedy was to “appeal” to the appellate department of the superior court. The penultimate sentence of Penal Code section 1538.5, subdivision (j) expressly authorizes such an appeal. The People’s concession that a petition for writ of habeas corpus is appropriate is erroneous and not binding on this court. Their earlier objection in the superior court was correct and should have been sustained.
Generally speaking, Fourth Amendment violations are not cognizable on habeas corpus. In In re Sterling (1965) 63 Cal.2d 486 [47 Cal.Rptr. 205, 407 P.2d 5], Chief Justice Traynor eloquently explained why a criminal defendant is required to exhaust his direct remedies: the use of illegally obtained evidence has no bearing on the issue of guilt or innocence and there is no risk of convicting an innocent person by its use. (Id. at p. 487; see also In re Clark (1993) 5 Cal.4th 750, 767 [21 Cal.Rptr.2d 509, 855 P.2d 729].)
Here the use of a pretrial habeas corpus remedy violates these rules and may serve as a precedent for other defendants to bypass not only the trial and *1310appeal, but the pretrial appeal expressly given to misdemeanor defendants by the Legislature. A writ of habeas corpus is not a substitute for appeal. (In re Harris (1993) 5 Cal.4th 813, 826-827 [21 Cal.Rptr.2d 373, 855 P.2d 391]; Adoption of Alexander S. (1988) 44 Cal.3d. 857, 865 [245 Cal.Rptr. 1, 750 P.2d 778].)
As to the merits, it is sufficient to observe that the municipal court’s denial of the motion to suppress carries the implied finding that there were exigent circumstances to excuse the obtaining of an inspection warrant. (E.g., People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d 961].) The judiciary should not lightly second-guess animal control authorities. We so indicated in Phillips v. San Luis Obispo County Dept. etc. Regulation (1986) 183 Cal.App.3d 372, 379 [228 Cal.Rptr. 101]: “It is obvious that summary seizure of dogs must be permitted when of immediate danger to the public, as for example when the dog is vicious or rabid." Had the dog run away from the Quackenbush residence, bitten other children, and infected them with rabies, it would be difficult to explain why Quackenbush’s Fourth Amendment rights took precedence over public health and safety. A dog with rabies does not wait for a dispassionate magistrate to issue a search warrant.
Finally, as to the charged Health and Safety Code former section 1923 violation, the majority come to the bold conclusion that the People may not proceed with the prosecution. Whether Quackenbush violated the statute is a fact-driven issue. Preclusion of the People’s right to go forward with trial impinges on the separation of powers doctrine. (Cal. Const., art. III, § 3.) The place to put on evidence is at trial. There should be one here.
A petition for a rehearing was denied February 13, 1996, and the opinion was modified to read as printed above.