Dеfendant appeals from a judgment of conviction of possession of marijuana. (Health & Saf. Code, § 11530.) The sole contention we need reach is that defendant was convicted on evidence obtained (in a material part) as a result of an illegal searсh and seizure in violation of the constitutional guarantees (U.S. Const., 4th and 14th Amends.; Cal. Const., art I, §19) and admitted at the trial over defendant’s timely objections. We have concluded that under the controlling federal and California law the challenged evidence was inadmissible; that on the record of this ease its admission was prejudicial error (Cal. Const., art. VI, § 4%); and hence that the judgment should be reversed.
An informer, previously shown to be reliable and whose name was disclosed at the trial, told State Narcotics Agent *863 Van Raam that a man named “Joe” would pick up a girl named “Suzy” at Pierre’s Tavern in San Francisco and drive to Los Angeles or Mexico to obtain marijuana; the informer also gave a description of the car to be used, and its license number. Agent Van Raam went to Pierre’s Tavern and observed defendant and a girl, later identified as Ann Dominguez, drive up in the described car and meet another girl, later identified as Susan LeFevre. The officer followed defendant’s car to an apartment building on Dolores Street, where defendant and the two girls entered and emerged with two suitcases, then drove awаy.
Agent Van Raam followed them as far as Livermore, broke off surveillance at that point, returned to the area on Dolores Street, and made a fruitless attempt to determine which building defendant and the girls had entered. Failing to identify the building, he continued to watch the general vicinity for defendant’s car. Some eight days later, at about 10 a.m., Agent Van Raam saw defendant’s car parked on Dolores Street in the area under surveillance. The officer took no direct action at that time, but returned at 1 p.m. with two federal narcotics agents. Defendant was sitting behind the wheel of his car, parked in the same place on the street. The officers double-parked next to defendant and identified themselves. Defendant lunged across the seat, away from the officers, and put an object in his mouth that appearеd to one officer to be a marijuana cigarette and to the other to be “a piece of white paper” that “looked like a cigarette.” One of the federal officers then seized defendant while Agent Van Raam grasped defendant’s jaw and attemрted to force his mouth open; the officer testified that in so doing he placed his fingers “in between his two bones, between the teeth, and pressed.” Defendant, however, spat nothing out. The officers then arrested defendant, handcuffed him, and removed him to the federal eаr.
During the struggle defendant shouted the name “Ann” several times, and Ann Dominguez emerged from an apartment building at 380 Dolores. Agent Van Raam testified that he identified himself and told her he had just arrested defendant; that he pointed to the open door of apartment B at 380 Dolores and asked her, “Is that your place?” and that she replied in the affirmative; that he then said, “Well, why don’t we go upstairs and talk about it?” and that she answered, “O.K.”
Meanwhile, the federal agents parked around the corner *864 and asked defendant for Ms identification. He referred them to his billfold, in which the officers found defendant’s address to be different from that of the Dolores Street apartment. Being questioned, defendant explained that “I don’t live in this area.”
The federal agents then took defendant into apartment B, where the above mentioned Agent Van Raam was waiting with Ann Dominguez and Susan LeFevre. Van Raam asked who lived there, аnd the girls replied that they did, together with a girl named Sharon Ferguson; Van Raam then asked who paid the rent, and was told that Sharon and Susan did, and that defendant and Ann were just staying there as guests while looking for a new apartment of their own. The officer asked “if they mind if I looked around, and thеy [i.e., Ann and Susan] said, ‘No. Go ahead.’ ” Defendant did not join in this expression of consent, and throughout the ensuing search remained silent, handcuffed and under guard in the front room.
The search was an extensive one, lasting approximately two and one-half hours. Agent Van Raam testified thаt he made a “thorough” search of each of the six or more rooms of the apartment, examining “every possible place that there was that conceivably narcotics may have been concealed [in]. ” Since the occupants were preparing to move, there were suitcases and boxes in each room and in the hallway; Agent Van Raam asked Ann, “Who does all this stuff belong to?” and she replied that some was hers and the rest belonged to Susan and to “several people.” Without further identification of the owner of each piece Van Raam proceeded to open and search all the suitcases and boxes in turn. When he came to a small blue suitcase (People’s Ex. 7) he opened it and did not ask Ann whose it was until after he had searched it. She then told him that it belonged tо defendant; inside, among men’s toilet articles, the officer found a package containing marijuana seeds and debris.
The discovery of the contraband was made, according to Van Raam’s testimony, at “a little before 2:30 [p.m.]”; nevertheless the officer continued the search for another one and one-half hours. He did not confront defendant with the blue suitcase until they were leaving at “five minutes to 4:00, ” whereupon defendant readily admitted that the suitcase was his. Van Raam sought to explain this delay by testifying that he “would like to collect all the evidence that I may find there and present it to [defendant] at one time.” The officer testified further that upon their return to the Narcotics *865 Bureau defendant admitted owning the marijuana found in the blue suitcase; defendant denied having made such an admission.
Defendant made out a prima facie case of the illegality of his arrest and the search and seizure of the blue suitcase and its contents when he established that they were made without a warrant. The burden then rested on the prosecution to show proper justification.
(Badillo
v.
Superior Court
(1956)
The showing made to justify defendant’s arrest is sufficient. An arrest upon information supplied by a reliable informer is valid.
(People
v.
Prewitt
(1959)
At the trial the prosecution sought to justify the search and seizure of the blue suitcase and its contents on the ground that the search was incidental to the valid arrest of dеfendant. That arrest, however, was not effectuated
on the premises thereafter searched,
but in a ear parked on a public street. It follows that the search was not in fact “incidental to” defendant’s arrest under the settled construction of that phrase by the federal and California courts, for “ ‘it was at a distаnce from the place thereof and was not contemporaneous therewith.’ ”
(People
v.
King
(1963)
It is urged, however, that the search should be held to be "incidental to ’ ’ the arrest because the car wherein defendant was arrested was parked only “A few feet south of the address, perhaps one door or two doors below” the apartment house in question. But while a search incidental to an arrest
*866
“may, under appropriate circumstances, extend beyond the person of the one arrested to include the premises under his immediate сontrol”
(Harris
v.
United States
(1947)
Nor can the search in the case at bench be justified on the ground of consent. Before undertaking the search the officers had learned that defendant and Ann were merely transient guests in the apartment. The officers had neither asked for nor received defendant’s consent, express or implied, to search through any of his belongings on the premises. The general consent given by Ann and Susan that the officers could “look around” did not authorize Agent Van Raam to open and search suitcases and boxes that he had been informed were the property of third persons. This is not a ease
*867
where the officer made "a reasonable mistake as to the extent of the owner’s authority” over the property.
(People
v.
Gorg
(1955)
supra,
“Therefore, as to any particular suitcase before he opened it, he should have said, ‘Is this yours? Can I look into it?’ or, ‘Does this belong to the man [i.e., defendant], or somebody else?’ ”
Agent Van Baam fаiled to make such simple inquiries, but instead carried out a general exploratory search of (as he described it) “every possible place that there was that conceivably narcotics may have been concealed [in].” It follows that the search and sеizure of defendant’s blue suitcase and its contents cannot be sustained on consensual grounds, and its admission into evidence over defendant’s timely objections was error under both federal and state law.
(Holzhey
v.
United States
(5th Cir. 1955)
Such an error, however, will not result in reversal unless on the entire recоrd of the case the reviewing court concludes that a miscarriage of justice has ensued.
(People
v.
Parham
(1963)
The judgment is reversed.
Traynor, C. J., MeComb, J., Peters, J., Tobriner, J., Peеk, J., and Dooling, J., * concurred.
Notes
Retired Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.
After leaving the apartment the officers searched defendant’s ear. Finding no narcotics in the passenger compartment, Agent Van Baam obtained the keys from defendant’s pocket, unlocked the trunk, and found a brown suitcase (People’s Ex. 8) which he then pried open. Inside were marijuana cigarettes and debris. Defendant denied owning this suitcase or its contents, and said they belonged to a person subse *868 quently admitted to be fictitious. As the officers knеw, defendant had purchased this ear from one Paul McCabe three weeks earlier; defendant explained on the witness stand that he gave the fictitious name in order to protect McCabe from possible trouble with the police.
Retired Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.