TRAYNOR, J.
By information petitioner was charged with possession of marijuana in violation of Health and Safety Code, section 11530. His motion to set aside the information on the ground that the evidence against him was obtained by an illegal search and seizure was denied, and he now seeks prohibition to prevent his trial. (See Badillo v. Superior Court, 46 Cal.2d 269, 271 [294 P.2d 23].)
Evidence was presented at the preliminary hearing of the following facts: On April 6, 1962, Inspector Martin of the San Francisco Police Department arrested Edward' Nieman in or about his car at Norton and Mission Streets. Seventeen bags of marijuana were found in the car. Before the arrest Inspector Martin learned that two telephones were listed in Nieman’s name, one on Folsom Street and one at 700 Shot-well Street. The latter telephone was also listed in peti[67] tioner’s name. After his arrest Nieman stated that he lived on Folsom Street. He first denied living at 700 Shotwell Street but then stated that he did live there in Apartment No. 3. The investigating officers asked him if he had any contraband there; he answered “no” and gave the officers his keys to confirm his answer for themselves. Without a warrant to search the apartment or to arrest petitioner, Inspector Martin went to the Shotwell Street apartment and tried the wrong key in the door. Petitioner opened the door on the chain, and Inspector Martin identified himself as a police officer. Petitioner looked and made a motion with his arm to the left and slammed the door shut. Inspector Martin then kicked the door in and found petitioner standing in the middle of the room and another person coming out of a bedroom on petitioner’s left. He saw a jar that appeared to contain marijuana seeds on a chair and arrested petitioner. He searched the room and found more marijuana. Petitioner told him that he lived there but denied any knowledge of the contraband. When they searched petitioner at the police station after his arrest, the officers found a marijuana cigarette in his pocket. Petitioner objected to the introduction of the marijuana and marijuana cigarette in evidence on the ground that they had been illegallv obtained.
Petitioner made a prima facie case that his arrest and the search and seizure were illegal 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, 46 Cal.2d 269, 272 [294 P.2d 23], and eases cited.) Although petitioner did not establish that Nieman’s arrest was made without a warrant, the search of the apartment cannot be justified as incidental to that arrest, “for it was at a distance from the place thereof and was not contemporaneous therewith. [Citations.]” (People v. Gorg, 45 Cal.2d 776, 781 [291 P.2d 469].)
Nor can the search and seizure be justified as incidental to the arrest of petitioner, for until Inspector Martin kicked in the door, he had no reasonable cause to believe petitioner had committed a felony. Although he had reason to believe from the telephone listings that petitioner shared the apartment with Nieman, Nieman told the investigating officers that there was no contraband at the apartment and was apparently willing to have them confirm his statement for themselves. Although Nieman’s initial denial that he lived at the apartment might have suggested that he had [68] contraband there, it provided no evidence that Nieman’s possession of contraband, if any, was shared with petitioner. At most it was a suspicious circumstance. Petitioner’s apparent motioning of someone away from the door and closing it in Inspector Martin’s face did not provide the missing elements of reasonable cause to believe that petitioner was guilty of a felony. There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer. If refusal of permission to enter could convert mere suspicion of crime into probable cause to arrest the occupant and search his home, such suspicion alone would become the test of the right to enter, and the right to be free from unreasonable police intrusions would be vitiated by its mere assertion. Although hindsight indicates that petitioner’s motive ’ in closing the door was to conceal evidence of guilt, Inspector Martin had no reasonable cause so to believe until he kicked the door open. It is settled, however, that a search cannot be justified by what it turns up. (People v. Brown, 45 Cal.2d 640, 643-645 [290 P.2d 528], and cases cited.)
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TRAYNOR, J.
By information petitioner was charged with possession of marijuana in violation of Health and Safety Code, section 11530. His motion to set aside the information on the ground that the evidence against him was obtained by an illegal search and seizure was denied, and he now seeks prohibition to prevent his trial. (See Badillo v. Superior Court, 46 Cal.2d 269, 271 [294 P.2d 23].)
Evidence was presented at the preliminary hearing of the following facts: On April 6, 1962, Inspector Martin of the San Francisco Police Department arrested Edward' Nieman in or about his car at Norton and Mission Streets. Seventeen bags of marijuana were found in the car. Before the arrest Inspector Martin learned that two telephones were listed in Nieman’s name, one on Folsom Street and one at 700 Shot-well Street. The latter telephone was also listed in peti[67] tioner’s name. After his arrest Nieman stated that he lived on Folsom Street. He first denied living at 700 Shotwell Street but then stated that he did live there in Apartment No. 3. The investigating officers asked him if he had any contraband there; he answered “no” and gave the officers his keys to confirm his answer for themselves. Without a warrant to search the apartment or to arrest petitioner, Inspector Martin went to the Shotwell Street apartment and tried the wrong key in the door. Petitioner opened the door on the chain, and Inspector Martin identified himself as a police officer. Petitioner looked and made a motion with his arm to the left and slammed the door shut. Inspector Martin then kicked the door in and found petitioner standing in the middle of the room and another person coming out of a bedroom on petitioner’s left. He saw a jar that appeared to contain marijuana seeds on a chair and arrested petitioner. He searched the room and found more marijuana. Petitioner told him that he lived there but denied any knowledge of the contraband. When they searched petitioner at the police station after his arrest, the officers found a marijuana cigarette in his pocket. Petitioner objected to the introduction of the marijuana and marijuana cigarette in evidence on the ground that they had been illegallv obtained.
Petitioner made a prima facie case that his arrest and the search and seizure were illegal 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, 46 Cal.2d 269, 272 [294 P.2d 23], and eases cited.) Although petitioner did not establish that Nieman’s arrest was made without a warrant, the search of the apartment cannot be justified as incidental to that arrest, “for it was at a distance from the place thereof and was not contemporaneous therewith. [Citations.]” (People v. Gorg, 45 Cal.2d 776, 781 [291 P.2d 469].)
Nor can the search and seizure be justified as incidental to the arrest of petitioner, for until Inspector Martin kicked in the door, he had no reasonable cause to believe petitioner had committed a felony. Although he had reason to believe from the telephone listings that petitioner shared the apartment with Nieman, Nieman told the investigating officers that there was no contraband at the apartment and was apparently willing to have them confirm his statement for themselves. Although Nieman’s initial denial that he lived at the apartment might have suggested that he had [68] contraband there, it provided no evidence that Nieman’s possession of contraband, if any, was shared with petitioner. At most it was a suspicious circumstance. Petitioner’s apparent motioning of someone away from the door and closing it in Inspector Martin’s face did not provide the missing elements of reasonable cause to believe that petitioner was guilty of a felony. There are many reasons other than guilt of a felony why an occupant of an apartment may not wish himself or others present exposed to the immediate view of a stranger, even if the stranger is a police officer. If refusal of permission to enter could convert mere suspicion of crime into probable cause to arrest the occupant and search his home, such suspicion alone would become the test of the right to enter, and the right to be free from unreasonable police intrusions would be vitiated by its mere assertion. Although hindsight indicates that petitioner’s motive ’ in closing the door was to conceal evidence of guilt, Inspector Martin had no reasonable cause so to believe until he kicked the door open. It is settled, however, that a search cannot be justified by what it turns up. (People v. Brown, 45 Cal.2d 640, 643-645 [290 P.2d 528], and cases cited.)
The People contend, however, that Nieman’s consent to the search of the apartment either constituted actual authority for Inspector Martin to enter and search or justified his believing in good faith that he had such authority, and that therefore the evidence so obtained should not be excluded. (See People v. Gorg, 45 Cal.2d 776, 783 [291 P.2d 469] ; Bielicki v. Superior Court, 57 Cal.2d 602, 607-608 [21 Cal.Rptr. 552, 371 P.2d 288], and cases collected in footnote 1). We have found no ease in which it has been held that a police officer may rely on the consent given away from the premises by one joint occupant to justify entering and searching over the objection of another joint occupant present on the premises at the time. In other contexts it has been held that one joint tenant or eotenant is entitled to possession of the entire premises and may by lease or license transfer his right of possession to another or authorize another to exercise it. (Zaslow v. Kroenert, 29 Cal.2d 541, 548 [176 P.2d 1] [wrongful ouster of one eotenant by another co-tenant] ; Lee Chuck v. Quan Wo Chong & Co., 91 Cal. 593, 598-599 [28 P. 45] [wrongful detainer action does not lie by one cotenant to oust lessee or licensee of another cotenant] ; Verdier v. Verdier, 152 Cal.App.2d 348, 352 [313 P.2d 123] [wrongful attempt by one joint tenant to oust licensee [69] of other joint tenant]; Swartzbaugh, v. Sampson, 11 Cal.App.2d 451, 461 [54 P.2d 73] [one joint tenant cannot cancel lease executed by another joint tenant and oust the lessee].) That rule, however, is necessarily limited by the principle that “Neither a joint tenant nor a tenant in common can do any act to the prejudice of his cotenants in their estate.” (Stark v. Barrett, 15 Cal. 361, 368; Stark v. Coker, 20 Cal.2d 839, 844-845 [129 P.2d 390] ; Carbine v. Meyer, 126 Cal.App.2d 386, 393 [272 P.2d 849] ; Simpson v. Bergmann, 125 Cal.App. 1, 6 [13 P.2d 531].) Joint occupancy of property, particularly residential property, obviously demands reasonable restrictions on the right of each joint occupant either by himself or through another to exercise full control over the property at all times regardless of the wishes of another joint occupant present on the premises. A joint occupant’s right of privacy in his home is not completely at the mercy of another with whom he shares legal possession. (See Verdier v. Verdier, 152 Cal.App.2d 348, 352-353 [313 P.2d 123]; People v. Weaver, 241 Mich. 616 [217 N.W. 797, 799, 58 A.L.R. 733] ; United States v. Blok, 188 F.2d 1019, 1021; Holzhey v. United States, 223 F.2d 823, 826-827; 2 Tiffany, Real Property (3d ed.) § 457, pp. 274-275.) Accordingly, we hold that one joint occupant who is away from the premises may not authorize police officers to enter and search the premises over the objection of another joint occupant who is present at the time, at least where as in this case, no prior warning is given, no emergency exists, and the officer fails even to disclose his purpose to the occupant who is present or to inform him that he has the consent of the absent occupant to enter. Moreover, Nieman did not consent to Inspector Martin’s breaking into the apartment over petitioner’s objection. He merely gave Inspector Martin the key to the apartment to confirm the statement that no contraband was present. Under these circumstances, Inspector Martin could not reasonably conclude that Nieman did or lawfully could authorize such an arbitrary exercise of Nieman’s right to possession as occurred in this case.
Let the peremptory writ of prohibition issue as prayed.
Gibson, 0. J., Schauer, J., Peters, J., Tobriner, J., and White, J.,* concurred.