[*222] Opinion

While driving in South San Francisco in the early hours of December 14, 1969, Robert Miller ran out of gas and brought his car to a stop in an abandoned private parking lot. Believing that no help would be available until dawn, he bedded down in the front seat to await an opportunity for assistance. At 3 in the morning a sergeant of the local police observed Miller’s car in the lot and upon closer examination discovered Miller in the front seat.

When the sergeant first saw the vehicle some electronic and musical equipment lay on the back seat; Miller himself occupied the front seat. Because of the apparent value of the property in the back seat, and the neighborhood’s high incidence of burglary, the sergeant told two assisting officers to take this property into custody in the event that they arrested Miller.

The assisting officers asked Miller for proof of identification in order to conduct a radio check for possible outstanding warrants against him. In complying with the officers’ request, Miller examined the pockets of an overcoat that lay on the front seat. Failing to locate any identification in his overcoat, he placed the coat in the back seat with his other property. Miller then located his driver’s license in his shirt pocket.

The radio check revealed an outstanding traffic warrant, and solely on that basis, while Miller was seated in the front seat of his car, the officers arrested him. One of the arresting officers immediately placed handcuffs on Miller’s wrists and led him to the patrol car; Miller offered no resistance at this or any other time. At the time of the arrest, one of the officers, explaining to Miller the danger of leaving the property in the abandoned car, requested his permission to take the property into custody. Miller refused permission; when the officer reiterated his request, Miller expressly stated that he preferred to assume the risk of a burglary rather than permit the police to take the property.

The officers nonetheless decided, for the purpose of safekeeping, to take the goods into their custody. They loaded the overcoat and equipment into the trunk of their police car, and on arrival at the police station, searched the pockets of the overcoat. In one pocket they discovered one marijuana cigarette and a small bag of unrolled marijuana.

Despite his timely objections at both the preliminary hearing and the hearing under Penal Code section 1538.5 that the seized contraband be suppressed as the product of an unconstitutional search, Miller was con[*223] victed of one count of possession of marijuana. The People assert here that the need for safekeeping of Miller’s equipment justified the search and seizure of the property without a warrant; alternatively they contend that the search and seizure were properly supported as incident to a lawful arrest. As we shall explain, neither theory affords a basis for the viability of the search and seizure that led to Miller’s conviction.

In order to justify a search and seizure without a warrant, the People must show that “the exigencies of the situation made . . . imperative” the search under review. (McDonald v. United States (1948) 335 U.S. 451, 455-456 [93 L.Ed. 153, 158-159, 69 S.Ct. 191]; accord, People v. Burke (1964) 61 Cal.2d 575, 578-579 [39 Cal.Rptr. 531, 394 P.2d 67]; see Badillo v. Superior Court (1956) 46 Cal.2d 269, 272 [294 P.2d 23]; Virgil v. Superior Court (1968) 268 Cal.App.2d 127, 132 [73 Cal.Rptr. 793].) According to the United States Supreme Court’s restrictive interpretation of “exigent situation,” a search, without a warrant, can be conducted in a nonemergency situation only if the search coincides with a lawful arrest or detention and is restricted to the arrestee’s person or area “within his immediate control.” The search must not go “beyond the petitioner’s person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him.” (Chimel v. California (1969) 395 U.S. 752, 762-763, 768 [23 L.Ed.2d 685, 693-694, 697, 89 S.Ct. 2034]; see Terry v. Ohio (1968) 392 U.S. 1, 27-30 [20 L.Ed.2d 889, 909-911, 88 S.Ct. 1868]; Preston v. United States (1964) 376 U.S. 364, 367-368 [11 L.Ed.2d 111, 780-781, 84 S.Ct. 881].)

We turn, first, to the People’s contention that, in addition to the foregoing recognized exception to the requirement for a warrant, the danger of theft from leaving property in an unattended car constitutes an additional “exigent situation” that justifies a warrantless search. In this respect we are governed by the recent case of Mozzetti v. Superior Court (1971) 4 Cal.3d 699 [94 Cal.Rptr. 412, 484 P.2d 84], which adjudicated a similar issue; moreover in Gallik v. Superior Court (1971) 5 Cal.3d 855 [97 Cal.Rptr. 693, 489 P.2d 573], we held that, since Mozzetti clarified and restated pre-existing constitutional rules, it should be applied retroactively (id. at p. 860, fn. 4). Hence Mozzetti controls the instant case even though we recognize that the superior court did not have the benefit of that opinion.

In Mozzetti the police conducted an inventory search of an automobile that they had removed from a public highway following the vehicle owner’s emergency hospitalization. We held that the inventory search violated the Fourth Amendment’s proscription of unreasonable searches and seizures, finding that the vehicle owner’s interest in privacy outweighed any con[*224] flicting interests in the preservation of the owner’s property during that period when he was absent from his car. (4 Cal.3d at p. 707.)

In reaching this conclusion to protect the privacy of absent vehicle owners, who, of course, are not available either to consent or object to an inventory of their property, we expressly recognized the more obvious right of the owners who are on the scene to express “their preference for the care of their personal property” and direct the police to “simply close the windows and lock the doors, rather than search the contents of their cars.” (Id. at p. 708.) We also disapproved several cases in the Courts of Appeal, one of which, People v. Gil (1967) 248 Cal.App.2d 189 [56 Cal.Rptr. 88], upheld a police seizure of property in circumstances similar to those of the instant case. (See 4 Cal.3d at pp. 703, 708 & fn. 2, p. 712.)

Thus Mozzetti anticipated the situation that now confronts us. Applying the law of that case to the search and seizure of Miller’s coat, we hold that the Fourth Amendment compelled the officers to honor Miller’s stated desire that they leave the property undisturbed. Only by convincing a detached magistrate to issue a search warrant for the specific items in Miller’s car could the police have intruded upon Miller’s right to maintain the privacy of his personal effects and to dispose of them in any legitimate manner that he desired.

But even if the officers had properly seized the coat from the car, or Miller had expressly consented to removal or seizure of the coat for purposes of “safekeeping,” we could not approve of the subsequent warrantless search of the coat’s pockets at the police station. Once the police saved the coat and equipment from the danger of theft they fulfilled their purported goal of safekeeping and could adequately protect themselves from, fraudulent claims by an inventory listing of the coat, pieces of equipment, and other “objects clearly visible without probing.” (Mozzetti v. Superior Court, supra, 4 Cal.3d at p. 707.) Since the coat’s pockets lay within the zone of Miller’s reasonable expectation of privacy (see Terry v. Ohio, supra, 392 U.S. at p. 19 [20 L.Ed.2d at p. 904]), the police can claim neither authority nor necessity to intrude into those pockets without a search warrant. (People v. Bradley (1969) 1 Cal.3d 80, 84 [81 Cal.Rptr. 457, 460 P.2d 129]; People v. Edwards (1969) 71 Cal.2d 1096, 1104-1105 [80 Cal.Rptr. 633, 458 P.2d 713].)

The People nonetheless assert that even if we do not recognize that the interest of the police in safekeeping serves as an exigent circumstance to permit a search without a warrant, the search in this case finds alternative justification under the established exception of a search incident to lawful[*225] arrest. The People do not contend that the search could properly follow as incident to the traffic arrest, but instead suggest—for the first time, on appeal —that the officers had probable cause to arrest Miller for receiving stolen property, and thus that the warrantless search and seizure of Miller’s coat and equipment can be sustained as properly incident to an arrest on that charge. As we shall explain, the assertion cannot stand for several reasons.

First, the officers would have completely lacked probable cause to arrest Miller for receiving stolen property. Police officers cannot properly claim that probable cause supports an arrest unless “the facts available to the officers at the moment of the arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been committed. Carroll v. United States, 267 U.S. 132, 162.” (Beck v. Ohio (1964) 379 U.S. 89, 96 [13 L.Ed.2d 142, 148, 85 S.Ct. 223]; accord, People v. Talley (1967) 65 Cal. 2d 830, 835 [56 Cal.Rptr. 492, 423 P.2d 564].) Officers cannot reasonably conclude on the basis of behavior that is entirely consistent with innocent activity that an offense has been committed. (See Spinelli v. United States (1969) 393 U.S. 410, 414, 418 [21 L.Ed.2d 637, 642, 644-645, 89 S.Ct. 584].)

In the instant case, the police discovered the defendant sleeping in a car in a private parking lot and observed electronic equipment in the rear seat of the vehicle. Certainly, the mere fact that defendant was found sleeping in such a location did not evidence any criminal behavior on his part; the additional fact that he happened to be carrying electronic equipment at that time would not, in itself, support an inference that the equipment was stolen, particularly since the police had not received any report of the theft of such material. Indeed, it seems quite unlikely that an individual who had just received stolen property would go to sleep in a car, leaving the contraband in plain sight.

The People suggest, however, that the defendant’s reluctance to permit the police to seize the equipment for “safekeeping” constituted suspicious behavior in itself which would warrant the inference that the equipment was stolen. Such an argument—formulating “probable cause” from an individual’s refusal to consent to a police search or seizure—would directly penalize an individual simply for exercising his constitutional right to be free from unreasonable searches and seizures by police. The courts have, of course, continually condemned any state practice which imposes adverse treatment on individuals for exercising constitutional rights intended to protect against such adversity (Sherbert v. Verner (1963) 374 U.S. 398 [10 L.Ed.2d 965, 83 S.Ct. 1790]; Speiser v. Randall (1958) 357 U.S. 513 [2 L.Ed.2d 1460, 78 S.Ct. 1332]; Parrish v. Civil Service Commission (1967) 66 Cal.2d 260, 270-271 [57 Cal.Rptr. 623, 425 P.2d 223]; Bagley v. Wash[*226] ington Township Hospital Dist. (1966) 65 Cal.2d 499 [55 Cal.Rptr. 401, 421 P.2d 409]) and thus we conclude that the state may not transform defendant’s refusal to waive his Fourth Amendment rights into a “suspicious” activity evidencing criminal conduct. In short, the facts available to the police—that defendant was found sleeping in a car containing electronic equipment and declined the police’s offer to take the equipment into safekeeping—would not warrant a man of “reasonable caution” in concluding that an offense had been committed.

Second, since the officers arresting Miller did not in fact harbor beliefs that would support a reasonable suspicion that he had received stolen property, the People cannot establish probable cause on that ground. Probable cause to arrest without a warrant represents an objective legal standard by which to measure the reasonableness and sufficiency of the officer’s subjective beliefs that the defendant has committed an offense. (See Beck v. Ohio, supra, 379 U.S. at p. 96 [13 L.Ed.2d at pp. 147-148]; People v. Talley, supra, 65 Cal.2d at p. 835; People v. Superior Court (1970) 3 Cal.3d 807, 821 [91 Cal.Rptr. 729, 478 P.2d 449].) “[U]nless it is first established that the police officer believed that the crime . . . had been committed by the [defendant], the issue of probable cause does not arise, for it would be a logical absurdity for the courts to be asked to'determine the reasonableness of an officer’s belief that [the] particular crime had been committed unless it were first established that the officer did entertain such a belief.” (Agar v. Superior Court (1971) 21 Cal.App.3d 24, 28-29 [98 Cal.Rptr. 148] (italics in original).) Accordingly, the People cannot meet the objective criterion of probable cause for an arrest on a charge of stolen property, because they have failed initially to demonstrate, by an exposition of the officers’ beliefs, that those officers suspected the defendant to be guilty of that crime.^[1]

This proposition serves to promote the basic purpose of the exclusionary rule. The rule, which seeks to deter police officers from conducting unrea[*227] sonable searches and seizures (see Elkins v. United States (1960) 364 U.S. 206, 217 [4 L.Ed.2d 1669, 1677, 80 S.Ct. 1437]; People v. Cahan (1955) 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513]), requires that courts focus first on the officers’ beliefs before measuring those beliefs against the objective standard of probable cause. Clearly, police behavior cannot be labelled “reasonable” if the officers themselves did not believe they were acting on legitimate suspicions of unlawful activity. (People v. Superior Court [Simon], supra, ante, pp. 186, 198; Agar v. Superior Court, supra, 21 Cal.App.3d at pp. 28-32; People v. Superior Court (1971) 14 Cal.App.3d 935, 949-950 [92 Cal.Rptr. 545]; Guevara v. Superior Court (1970) 7 Cal.App.3d 531, 535 [86 Cal.Rptr. 657].)

Finally, the People cannot introduce on appeal a new theory to justify the search, in view of the defendant’s lack of opportunity to present evidence in response to it, to cross-examine the prosecuting witnesses on testimony supporting the new theory, or to argue before the trier of fact the theory’s invalidity or inapplicability. (People v. Superior Court, supra, ante, pp. 198, 199; Reinert v. Superior Court (1969) 2 Cal.App.3d 36, 42 [82 Cal.Rptr. 263].)

In sum, we must reject the novel theory that the search was incident to an arrest for possession of stolen goods. We conclude that, as to the seizure of the coat or the intrusion into its pockets, the People cannot support such conduct either as acts of safekeeping or as properly incident to a lawful arrest. The evidence, therefore, must be suppressed, and the conviction reversed.

The judgment is reversed.

Wright, C. J., Peters, J., Mosk, J., and Sullivan, J., concurred.