Pursuаnt to the provisions of 999a of the Penal Code, petitioner seeks a writ of prohibition predicated upon the grounds that there was no competent evidence before the committing magistratе to establish probable cause for his being held to answer and that the respondent court erred in denying his motion, made pursuant to section 995 of the Penal Code, to set aside the information. We have concluded that the peremptory writ of prohibition should issue as prayed for.
The facts as established by the evidence taken before the committing magistrate are: About 8 p.m on January 7, 1959, two policе officers of the city of South Gate observed an automobile lawfully parked on Hildreth Street neаr the intersection of Firestone in the city of South Gate. This is a commercial and industrial area but both Hildreth and Firestone are well lighted and a liquor store facing on Firestone a short distance from the intersеction was open. The officers observed a woman sitting in the car and approached thе ear and questioned her. She stated she was waiting for her boy friend who had gone to the liquor store to purchase some cigarettes. At that time the officers saw the defendant approaching the рarked car. They intercepted him before he reached it. They questioned him, asking where he had bеen, to which he replied that he had been to the liquor store to purchase some cigarettes for his girl friend. They asked him his name and he gave it. They asked him whether he had been “busted” before, to which he answered in the affirmative. They asked him several other questions but did not ask him for his driver’s license. He appeared nervous while being questioned. After questioning, the officers told petitioner they were going to seаrch him, whereupon defendant attempted to flee. He was overtaken when he had gone 25 to 35 fеet but during his flight he threw *358 some objects from his sweater pocket which included a small tinfoil package which the officers later recovered. It was found to contain marijuana.
At the time of the incident abоve recounted, defendant was at liberty on bail but the officers did not know this fact and had no reason tо suspect that the defendant had committed a crime nor did they have any search warrant or warrаnt for his arrest. At the preliminary hearing, over timely objections, the marijuana was admitted into evidencе. This evidence constituted the only proof of the corpus delicti.
That the officers did not have рrobable cause to arrest petitioner is not disputed by the People nor could it be for he was lawfully upon the public streets at night and had not committed any acts which would tend to arouse suspiciоn prior to his flight.
(People
v.
Brown,
If probable cause had existed for the petitioner’s arrest it would be of no moment that they attempted a search of defendant’s person before making the arrest rather than aftеrward. (People v. Simon, supra.) There being no probable cause for arrest, if the officers had carried out their threat to search petitioner’s person and had found the contraband in the process of the search, there would be no question but that the evidence was illegally obtained and, therefore, inadmissible. (People v. Harvey, supra; People v. Simon, supra; People v. Brown, supra.)
In the рresent case petitioner’s flight was caused by the threat of the officers to illegally search his рerson which they could, without question, have put into effect, and the discarding by the petitioner of the evidence upon his person was but a product of the threat. We cannot distinguish this case in principle from that of
Badillo
v.
Superior
Court,
“The attorney general сontends that defendant abandoned the evidence when he threw it toward Agent Hipkins and that thereforе he may not object to its use against him. It clearly *359 appears, however, that defendant’s flight out the frоnt door and attempted disposal of the evidence was the direct result of Officer Getehell’s illеgal entry, and accordingly, the evidence was obtained in violation of constitutional guaranteеs.”
In the cited case as well as in the case at bar, the petitioner was fleeing from the attemрted illegal invasion of his constitutional rights (U.S. Const., Fourth Amendment; Cal. Const., art. I, § 19), and in each ease, during the flight, he attempted to dispose of the evidence which the officers would have obtained had they been аble to complete the threatened unlawful act. In each case the evidence, being the product of the illegal acts of the officers, was illegally obtained.
Let a peremptory writ of prohibition issue.
Fourt, Acting P. J., and Lillie, J., concurred.
Respondent’s petition for a hearing by the Supreme Court was denied May 27, 1959. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.
Notes
Assigned by Chairman of Judicial Council.