¶1I dissent.
¶2The decisive question is whether the search of appellant’s apartment which led to the discovery of marijuana was lawful. If the search was unlawful, the evidence introduced as a result of the search, which led to appellant’s conviction, should have been excluded and the judgment should be reversed.
¶3In my opinion the search was irremediably tainted by the illegality of appellant’s arrest which preceded the search. The majority holds this court is precluded from adjudicating the legality of appellant’s arrest because appellant failed to present the precise ground to the trial court on which he seeks a reversal.
¶4The majority concede, as the record shows, that the legality of appellant’s arrest was put in issue in the trial court, but hold that, since the legal theory upon which the arrest is now argued to be unlawful is different from the *948theory urged before the trial court, appellant is barred by the rules of appellate practice from disputing the legality of the arrest.
¶5It is basic that theories which have not been presented to the trial judge cannot properly be presented for the first time on appeal. (Rivas v. Ayala, 208 Cal.App.2d 239, 242-243 [25 Cal.Rptr. 48].) It is equally fundamental, however, that where the newly advanced theory presents only a question of law and where the facts are not disputed, a change of theory is permitted on appeal. (Roberts v. Roberts, 241 Cal.App.2d 93, 98 [50 Cal.Rptr. 408].)
¶6The difference in theory upon which the majority leans is the failure of appellant to have urged in the trial court in support of his motion the specific evidence undisputably in the record which he now argues before this court. The majority says that the presentation of such evidence as support for the motion should have been made at the trial level, where each side has the opportunity to fully develop and argue all the evidence either relies upon.
¶7At bench, after a dismissal of the burglary count, the legality of the search and seizure of the marijuana was put in issue by a motion under Penal Code section 1538.5, to suppress the evidence. At that hearing, counsel argued that the arrest was unlawful because it was based on intelligence obtained from two unreliable informants of whom Denton was one. The argument added on appeal is that the arrest was unlawful because it was also based on the preceding search of appellant’s belongings at Denton’s apartment. That search, it should be remembered, yielded the jewelry box which allegedly connects appellant to the burglary.
¶8I am not persuaded by the majority that Denton had the legal authority to authorize the officers to search appellant’s belongings. This right fashioned by the majority for Denton to cooperate as a citizen and thus lawfully authorize the search of appellant’s property is an innovation for which the majority cites no authority and for which I find no support in logic or policy. The majority’s invocation of the rule that the officers could reasonably rely on Denton’s ostensible authority is similarly erroneous, for this rule does not apply where the third party—in this case, Denton—makes clear that the property belongs to another. (People v. McGrew, 1 Cal.3d 404, 413 [82 Cal.Rptr. 473, 462 P.2d l].)
¶9*949Taking Denton’s statements at face value, nothing is revealed but appellant’s purported desire to leave his belongings with Denton until he could move them to his apartment. Nothing in the circumstances related by Den-ton to the officers suggested any authority on Denton’s part over appellant’s property.
¶10The facts underlying the presentation of the primary point, to wit: illegal arrest, are undisputed. It is undisputed, too, that the objection to the admission of the marijuana as evidence was before the trial court. The general theory underlying the objection to the evidence, namely that the seizure was tainted by the preceding illegal arrest, was presented to the trial court. The only change in the presentation of the same point before this court is the specific urging of evidence in the record that Denton was not authorized to consent to the search of suitcases allegedly belonging to appellant. Such a change is not a change in legal theory. It is actually a different presentation of one theory rather than a change to another. In any event, if it be a change of theory, the objection made against a backdrop of the undisputed facts set out at bench is sufficient, in my opinion, to give appellant the right to argue the evidence alluded to in this court as a proper basis to sustain the objection.
¶11The cases cited by the majority do not support its position. In two of the cited cases no objection of any kind was made to the admission of the evidence at trial. (People v. Robinson, 62 Cal.2d 889, 894 [44 Cal.Rptr. 762, 402 P.2d 834]; People v. Ibarra, 60 Cal.2d 460, 462 [34 Cal.Rptr. 863, 386 P.2d 487].) At bench, the motion to suppress the evidence was vigorously urged.
¶12In People v. De Santiago, 71 Cal.2d 18 [76 Cal.Rptr. 809, 453 P.2d 353], the evidence was objected to at trial on grounds other than those that were urged on appeal. At trial, the arrest was argued to be illegal while on appeal the defendant claimed a lack of compliance with Penal Code section 844 as grounds for exclusion of the evidence. (Id. at p. 22, fn. 3.)
¶13*950A further defect in the majority’s decision is that appellant, in addition to urging evidence in the record which he did not argue in the trial court, also asserts on appeal that the evidence he did argue, to wit: that the information leading to appellant’s arrest was not reliable and that the arrest was therefore illegal, was adequate to support the motion to suppress. (Aguilar v. Texas (1964) 378 U.S. 108 [12 L.Ed.2d 723, 84 S.Ct. 1509]; Spinelli v. United States (1969) 393 U.S. 410 [21 L.Ed.2d 637, 89 S.Ct. 584].)
¶14The majority briefly notes that the information supplied by Denton, combined with the coincidence of appellant’s earlier presence at the scene of the burglary, provided the requisite probable cause for the arrest. Denton gave no information to the police other than that connected with appellant’s whereabouts. An admittedly anonymous informer other than Denton provided the information that appellant had been trying to sell property taken in the burglary.
¶15The required corroboration of this anonymous tip (People v. Reeves, 61 Cal.2d 268, 273-274 [38 Cal.Rptr. 1, 391 P.2d 393]) is sought by the majority in the “coincidence” of appellant’s earlier presence at the scene of the burglary. However, “[t]here is nothing to support a reasonable belief that any man . . . has committed a felony simply because he is seen going in and out of a private home in a normal manner.” (People v. Privett, 55 Cal.2d 698, 702 [12 Cal.Rptr. 874, 361 P.2d 602].) I disagree with the majority that the coincidental presence of appellant in Mr. Clahan’s home prior to the burglary corroborates the vital fact that appellant had committed the burglary. Even on the limited presentation to the trial court and again urged by appellant in this forum, I would find that appellant’s arrest was illegal.
¶16If the arrest was illegal, the majority leans on the slender reed that appellant’s invitation to the officers to search his apartment attenuated the taint of the illegal arrest.
¶17The holding of our Supreme Court that a search and seizure made pursuant to consent secured immediately after an illegal arrest are inextricably bound up with that arrest is difficult to misunderstand. (People v. Henry, 65 Cal.2d 842, 846 [56 Cal.Rptr. 485, 423 P.2d 557].)
¶18I would reverse the judgment.
¶19Appellant’s petition for a hearing by the Supreme Court was denied January 21, 1971.
¶20 Although holding that the search in Denton’s apartment was not properly before this court, the majority argue at length to sustain it and fortify their position quoting at length from Sartain v. United States (9th Cir. 1962) 303 F.2d 859, at p. 862. Sartainwas not ignored in People v. McGrew, supra,1 Cal.3d 404, 413 and in an immediately prior decision, our Supreme Court said at page 86: “. . . although we are bound by the decisions of the United States Supreme Court interpreting the *949federal Constitution ... we are not bound by the decisions of the lower federal courts even on federal questions. However, they are persuasive and entitled to great weight.” (People v. Bradley, 1 Cal.3d 80, 86 [81 Cal.Rptr. 457, 460 P.2d 129].)
¶21 It is not apparent what grounds were urged at trial for the motion to exclude certain evidence in People v. Rojas, 55 Cal.2d 252 [10 Cal.Rptr. 465, 358 P.2d 921, 85 A.L.R.2d 252], another case cited by the majority.
¶22It should be noted, too, that in Henry, the search was held illegal even though the arrest in Henry was legal. Further, the record in the case at bench shows there was more probable cause to arrest Denton who the majority seek to show was an authorized agent, but who is referred to by the trial judge as the “finger-man.”