By information defendant was charged with keeping and occupying a business building for the purpose of horse-race bookmaking in violation of Penal Code, section 337a, subdivision 2. Defendant was arrested at his place of business, and evidence taken by the officers from defendant's person and the premises was introduced at the preliminary hearing. It consisted of keys to the premises that were in defendant's possession, betting markers, owe sheets, and scratch sheets. One of the officers testified that at the time of the arrest he answered the telephone, and a female voice said, "This is Maude. Give me your answer on Devil's Sound in the 2d race at Hialeah." Five or six other callers asked for Jimmy, and when the officer told them that Jimmy had stepped out, they hung up. The officers were not questioned at the preliminary hearing with respect to facts bearing on the legality of their search or the lawfulness of the arrest. When, however, defendant moved to set the information aside on the ground that the evidence was illegally obtained, the parties stipulated to the following additional facts: The officers went to defendant's place of business, a phonograph record shop, in the morning in search of another man they had arrested the day before at the record shop for bookmaking. They entered the front door of the shop, which was open to the public and used to display records. No one was in the front room, and the officers went to a door that separated it from a second room behind, which was not open to the public. There was a large hole
The trial court held admissible the evidence of what the officers could see by looking through the hole in the door between the room open to the public and the second room that was not. It concluded, however, that what the officers could see from the door was not sufficient to justify their entry without a search warrant to make an arrest, and pointed out that the presence of pads with writing on them, even of the type ordinarily used by bookmakers in the vicinity, was consistent with the legitimate business of a record shop being conducted on the premises. Accordingly, it held that the evidence obtained after the officers entered the second room without a warrant or permission was incompetent, and since the remaining evidence was insufficient, it granted defendant's motion to set the information aside. The People appeal.
The attorney general contends that when the officers looked through the door into the second room, they had reasonable cause to believe that defendant had committed a felony and that he was committing the offense of occupying premises for the purposes of bookmaking in their presence, and that therefore the arrest and search were lawful. (See Pen. Code, § 836, subds. (1), (3); People v. Martin, 45 Cal.2d 755, 761-762 [290 P.2d 855].) We cannot agree with this contention.
The order is affirmed.
Gibson, C.J., Carter, J., Schauer, J., and McComb, J., concurred.
The evidence admitted at the preliminary hearing clearly showed that defendant had committed, and was committing, a felony at the time of his arrest. The offense with which he was charged is in the nature of a continuing offense, as it covers any person who "keeps or occupies, for any period of time whatsoever, any ... place ... with a book or books, paper or papers ... or paraphernalia, for the purpose of
In my opinion, the evidence introduced as the result of the arrest and search was admissible on either of two grounds. First, the search was made as an incident of a lawful arrest under subdivision 2 of section 836 of the Penal Code, and was therefore a reasonable search rather than one violating the constitutional guarantee against "unreasonable searches and seizures." (U.S. Const., 4th Amend., Cal. Const., art. I, § 19.) Second, the search was made as the incident of a lawful arrest and the arresting officers had "reasonable cause" before the arrest and search to believe that defendant had committed, and was committing, a felony. (People v. Martin, 45 Cal.2d 755 [290 P.2d 855]; People v. Boyles, 45 Cal.2d 652 [290 P.2d 535].)
In reaching the conclusion here that the challenged evidence was admissible, I deem it unnecessary to discuss the first ground above mentioned. That question was raised in People v. Brown, 45 Cal.2d 640 [290 P.2d 528], and People v. Simon, 45 Cal.2d 645 [290 P.2d 531]; and I voted for a rehearing in those cases because of doubt concerning the soundness of those opinions. The question is also presented in Badillo v. Superior Court (S.F. No. 19346), post, p. 269 [294 P.2d 23] and it will suffice to discuss it in that case. In the present case, my conclusion may be rested solely upon the second ground above mentioned.
As above stated, the evidence shows that defendant had kept and occupied, and was keeping and occupying, a place with the specified paraphernalia for the specified purpose; and the stipulation shows as a matter of law that the officers had "reasonable cause" to believe that defendant had so done and was so doing. Said stipulation, which was made by the parties for the purpose of the motion to dismiss the information shows that "Officers Nelson and Gough also knew the defendant in this case, James W. Sanders, in person, and that he was known to them as a bookmaker on horse races"; that another person had been arrested on the same premises for bookmaking on the previous day; and that the officers, immediately prior to the entry and arrest, saw defendant standing by a table with a pencil in hand and saw on the table "the kind and character of pads of paper used in that area where the record shop was located by bookmakers who make book on horse races." If such knowledge on the part of the officers does not show as a matter of law that the officers
To summarize, I am of the opinion that the arrest in the present case was not only a lawful arrest but also one made by the officers upon "reasonable cause"; that the search made as an incident to that arrest was therefore reasonable; and that the evidence obtained as a result of the search was therefore admissible.
I would reverse the order dismissing the information.
Shenk, J., concurred.
Appellant's petition for a rehearing was denied March 21, 1956. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.