¶1I dissent.
¶2The majority decision holds that a sale on a street in broad daylight of an item in a plastic baggie or waxed paper for currency is not usually made and therefore provokes not alone suspicion but is sufficient to inspire in the mind of a seasoned narcotics officer who admitted he didn’t know what the bag contained not only suspicion but probable cause to arrest and search the buyer for contraband. (Cf. People v. Henze, 253 Cal.App.2d 986 [61 Cal.Rptr. 545], hg. den.)
¶3The trial judge frankly euphemized a distinction between the facts at bench from those in Cunha v. Superior Court, 2 Cal.3d 352 [85 Cal.Rptr. 160, 466 P.2d 704] and Remers v. Superior Court, 2 Cal.3d 659 [87 Cal.Rptr. 202, 470 P.2d 11], He said in pertinent part:
¶4“And yet this case seems to- fall pretty squarely into the somewhat ivory tower reasoning of Cunhaand Remers. ... It is a street transaction. . . .
¶5“I have to distinguish the cases. This has to do with a plastic baggie, and the other ones didn’t. . . .”
¶6The facts in Cunhaand Remersinvolved street transactions observed by seasoned narcotic officers, but unlike the transaction at bench the sales in Cunhaand Remerswere in a high narcotic area and the Remerstransaction involved a visible tinfoil package and was in the nighttime participated in by a person known to the officer to be a trafficker in drugs; although at bench the officer made no claim he recognized either party to the transaction and admitted he did not know what was in the package and could not be certain what the package contained. In addition, in both Cunhaand Remers, there was furtive and suspicious conduct of the parties to the transaction and at bench the record shows no such conduct.
¶7*541In Thomas v. Superior Court, 22 Cal.App.3d 972, 977-978 [99 Cal.Rptr. 647], hearing denied, the court in grappling with Cunhaand Remers, cited previous decisions holding that the nature of the suspect package (tinfoil wrap, paper sack, small paper packets customarily used for narcotics) is not ground for the warrantless arrest of its possessor. In People v. Conley, 21 Cal.App.3d 894, 899 [98 Cal.Rptr. 869], hearing denied, the court stated that “In Cunha, supra,no probable cause for a search existed where the defendants in a known narcotics area merely looked around suspiciously and then exchanged an unseen object for money.” (Italics added.)
¶8I, and I suspect others, have difficulty in absorbing the sensitive and often puzzling and evanecent factual distinctions and applying the legal requirements in respect of arrest and search and seizure. I am in sympathy with any effort to articulate a realistic workable rule. No such rule will be arrived at, however, if trial courts and intermediate appellate courts avoid application of a fixed rule on the theory that it offends common sense by making illusive factual distinctions to identical situations. There are undoubtedly physical differences between twins identical in all respects not apparent to the usual observer, but clear to a parent. In all the cases discussed herein, as well as the one at bench, the observer was an expert.
¶9It may be, as it has been noted, that both Cunhaand Remersshould be re-examined. Until that time, however, I am impelled to conclude that an exchange in broad daylight between parties unknown to; the officers, in a non-narcotic area, in a setting which was neither furtive nor pregnant with the knowledge of prior narcotics traffic on the part of either person to the exchange, of a package which admittedly after a search could have revealed non-contraband, cannot, under the controlling law, constitute probable cause for an arrest and search.
¶10I would reverse the judgment.
¶11Appellant’s petition for a hearing by the Supreme Court was denied February 14, 1973. Tobriner, J., and Sullivan, J., were of the opinion that the petition should be granted.