This cause was transferred to this court after decision by the District Court of Appeal, Second Appellate District, Division Three. Upon further examination of the record, we adopt the opinion of that court prepared by Mr. Justice Parker Wood, which reads:
Defendant Schaumloffel was accused, in three counts, of the crime of abortion, in violation of section 274 of the Penal Code. The counts related, respectively, to alleged abortions committed on Rosella Edgar, Betty Watts, and Betty Justsen. Prior to the trial, count 3 (relating to Justsen) was dismissed on motion of the prosecution. In a jury trial, defendant Schaumloffel was convicted on counts 1 and 2. He appeals from the judgment and the order denying his motion for a new trial.
Defendant Crutchfield was also accused in said count 2 with
Appellant Schaumloffel, who is a doctor of medicine, contends that the arresting officers illegally searched his office records and illegally seized records and papers belonging to him; that the conviction was based on evidence derived solely from the illegal search and seizure; that the court erred in denying appellant's motion to suppress the evidence based on such search and seizure; and that the court erred in overruling appellant's objections to the admission of that evidence.
Officer Zander testified that in 1952 or 1953 he received information from other police officers that appellant was performing illegal operations; in 1954 he (witness) received similar information from police officers in San Francisco; also in 1954 police officers in Los Angeles told him that a woman at the receiving hospital had told them that appellant had performed an abortion on her; in the latter part of 1956, he (witness) read a newspaper article wherein appellant asserted that someone had attempted to extort money from him by threatening to expose him for performing abortions; he (witness) interviewed John Russo, whom appellant had named as the extortionist, and was told by him that appellant had committed an abortion on Betty Barofsky; Russo also said that Barofsky told him that when she was in appellant's office he wrote, on a card, limited information about her; the card and the writing thereon, as described by her, were similar to certain cards and the writing thereon (later referred to herein) which were taken by the officer from appellant's office; he also talked to Barofsky, who made a statement which was in substance the same as the statement of Russo; he (witness) received information, by telephone from an unknown person, that a woman was coming from Las Vegas to appellant's office to have an illegal abortion performed on her, and that she would arrive at the office about 1 p.m. on January 29, 1957; the officer and three other officers placed the office under surveillance; about 1 p.m. of that day, an automobile arrived at the entrance of the building in which appellant's office was located; a woman got out of the automobile and entered the building, and a man drove the automobile to the rear of the building; the officer (witness) talked to the man, Mr. Thurmond, who said that he brought Mrs. Thurmond to
As stated in respondent's brief, apparently Officer Zander secured from Edgar the names of Watts and Justsen. Officer Zander testified that indirectly through the Edgar card, which he took from appellant's office, he secured the names of Watts and Justsen.
The Edgar card and the desk diary, which were taken from appellant's office, were offered in evidence by the prosecution, and they were received in evidence. Appellant objected to the offer of said articles on the ground that the search for and the seizure of those articles were illegal. The objection was overruled. Prior to the trial, appellant made a motion to suppress the evidence, which had been seized by the officers, on the ground that the search was illegal. During the trial appellant objected when the seized articles were offered in evidence, and he objected to the evidence which was obtained as a result of such seizure. Those objections, which were made on the ground that the search was illegal, were overruled. During the trial appellant was permitted to have a continuing objection to the offer of evidence which was based on the said search and seizure. The objection was overruled.
By information, filed in April 1957, the defendants herein, Schaumloffel and Crutchfield, were accused of illegally performing abortions on Thurmond and Barofsky. In May 1957 that information was dismissed.
In the trial of the present case, Edgar, Watts, and Justsen were witnesses called by the prosecution. The count as to Justsen (count 3) pertained to an alleged offense occurring about two and a half years before the alleged offense involving Edgar. As above stated, the count relating to Justsen was dismissed before the trial.
Edgar and Watts testified, among other things, that appellant
In People v. Mills, 148 Cal.App.2d 392 [306 P.2d 1005], the defendant was convicted on 13 counts, including charges of grand theft, violating the Corporate Securities Act, and conspiracy to commit those crimes. A police officer, posing as a prospective investor, agreed to buy certain shares of stock from defendant. The officer knew that defendant did not have a permit to sell the stock. While the officer was in defendant's office (a hotel room) and was completing the purchase of the stock, he arrested the defendant for violating the Corporate Securities Act. Then other officers, who had been waiting outside, entered the room and were directed by the officer (who had purchased the stock) to search the entire office for all things having to do with stock, stock promotion, and other investors. There was no search warrant or any warrant. The entire office was searched by six persons, during a period of approximately 45 minutes. Many documents were seized in the search. The search was directed toward the discovery of evidence of the commission of similar crimes. At the trial therein the prosecution witnesses who testified regarding the 12 counts (other than the count involving the purchase by the officer) were persons whose identity and testimony had been discovered or procured through the seized documents. In that case it was said, at page 399: "The search was wholly exploratory, a quest for evidence of other crimes. Such a procedure has been condemned repeatedly and for many years." It was also said therein, at page 400: "This condemnation of exploratory searches is fully supported by decisions of the United States Supreme Court and other federal and state tribunals; and the exclusion of illegally seized documents extends to other evidence which is derived from those documents directly or indirectly." It was also said therein, at page 401: The search "may be exercised in aid of discovery of evidence of the particular crime for which the arrest is made." On page 402 of that case, it was said: "Where the bounds of a reasonable search have been exceeded, as here, neither the evidence wrongfully seized nor any of its derivatives may be used against defendant." The judgment therein was reversed as to the 12 counts which were based on evidence derived from seizure of documents that were not connected with the crime for which the arrest was made; and the judgment
In the Mills case, just referred to, it was said (p. 403) that People v. Martin, 382 Ill. 192 [46 N.E.2d 997], "is factually foursquare with the case at bar, and it was held that the witnesses discovered through the wrongfully seized documents could not testify to the other crimes disclosed by those documents." The charge in the Martin case was conspiracy to commit abortion. In the Martin case, the Supreme Court of Illinois said (p. 196): "There is no manner of question but what the several searches and seizures of papers obtained upon the premises of plaintiff in error, Martin, were illegal and without any pretense of compliance with the law." It was also said in that case (p. 203) that the evidence "was obtained from the matters illegally seized, and this being our conclusion, the evidence should have been suppressed and excluded."
Respondent cites People v. Schmitt, 155 Cal.App.2d 87 [317 P.2d 673], wherein a chiropractor and another person were convicted of conspiracy to commit grand theft. That case is distinguishable from the present case. When the chiropractor was arrested in his office, the officers had a warrant for his arrest on a misdemeanor charge of false advertising, but they did not have a search warrant. In that case there was a general ransacking of defendant's office, but the question was whether the evidence obtained illegally was used against defendant. It was said therein (p. 103) that the evidence used was obtained in a search that was permissible under the charge for which defendant was arrested. It was also said therein (p. 102): The "medical records which were received in evidence were connected with the commission of the crime for which he was arrested."
Respondent also cites United States v. Lindenfeld, 142 F.2d 829, where there was a seizure of patient record cards which were in possession of a physician. Defendant therein was convicted of unlawfully issuing prescriptions of morphine to narcotic addicts. That case is distinguishable from the present case. The defendant therein was required to keep records of the drugs distributed by him. The federal agents seized all of his cards containing the names of patients for whom he had prescribed drugs. It was held therein that the seizure was legal. In that case, the records which were seized were records
In the present case the convictions were based upon evidence that was obtained by illegal search and seizure.
In view of the above conclusion, it is not necessary to discuss other contentions on appeal.
The judgment (as to both counts) and the order denying the motion for a new trial are reversed.
The record is replete with evidence to sustain defendant's convictions for the illegal abortions performed on Miss Edgar and Mrs. Watts. The majority nevertheless reverses upon the theory that "the convictions were based upon evidence that was obtained by illegal search and seizure." I cannot agree.
Although the defendant has not contended that he was arrested without reasonable cause, the question of the reasonableness of the search and seizure as an incident to the arrest was raised at the outset of the trial. On this question, the prosecution then introduced abundant evidence from which the trial court properly concluded that the officers had made a reasonable search in good faith for five by seven cards which, as they had been informed, were used in connection with the Thurmond and Barofsky abortions. No Thurmond or Barofsky cards were found, but the officers seized some five by seven cards which were on an open shelf next to the operating table. They also seized the desk calendar, which apparently was likewise in plain view. Among the seized cards was the Edgar card, and among the entries in the desk calendar was the Edgar entry. These were the only seized documents which were admitted in evidence.
In my opinion, the record does not bear out the statement of the majority that "[t]he officers searched all of the doctor's records regarding his patients," or the statement that "they ransacked and looked at all his medical records...." The majority correctly states that the evidence shows that the officers "looked wherever it seemed to them that there might be five by seven cards," but the trial court was justified in concluding that this was reasonable in the light of the officers' information concerning the Thurmond, Barofsky and other abortions and concerning the purpose for which the five by seven cards were used.
As I read the majority opinion, it does not question the propriety of defendant's arrest without a warrant or the reasonableness of the search and seizure from the person of the defendant, of the large amount of currency and of the vial containing placental tissue. My views therefore differ from those of the majority only in that I believe the trial court properly concluded that the search for, and seizure of, the five by seven cards and desk calendar was reasonable under the circumstances and violated no constitutional right of the defendant. Even assuming, solely for the purpose of this discussion, that the officers may have engaged in some searching activity in defendant's offices which could be said to have been unreasonable, this should not affect the admissibility of the cards and calendar because they were produced solely as the result of reasonable searching activity. (People v.
From a reading of the record in the light of defendant's several contentions, I am convinced that he was accorded a fair trial free from any prejudicial error.
I would therefore affirm the judgment and the order denying the motion for a new trial.