People v. Privett

— Defendant Privett and defendant Walker, mother and daughter, were convicted by a jury respectively of burglary and receiving stolen property. They argue on appeal that the trial court erred in admitting over their objection evidence obtained as a result of an unlawful search of their - home. The officers entered the home and made the search without a warrant, thus putting the burden on the prosecution to produce evidence sufficient to justify the entry and search. (Badillo v. Superior Court, 46 Cal.2d 269 . 272 [ 294 P.2d 23 ].)

In the evening of September 13, 1958, an apartment occupied by Mrs. King was burglarized in her absence. Various articles identified as having been taken in this burglary were found in the home of appellants as a result of the search complained of. In addition one witness identified appellant Privett as the woman whom he had seen leaving the entrance of the building in which Mrs. King’s apartment was situated on the night of September 13, 1958, in the company of a man whom this witness was unable to identify. The man was carrying two suitcases and the woman had some clothing thrown over her arm. Another witness testified that she saw the two appellants standing together near the apartment house entrance on the same night, but the effect of her identification was weakened by the fact that she described both women as slender while Mrs. Walker testified to being eight and one-half months’ pregnant at that time. Both appellants testified that they had not been in the neighborhood of Mrs. King’s apartment on the day or night in question and stated that Edwards had brought the stolen articles to their home, and that they had assumed that they belonged to his wife from whom he was separated.

The only possible justification for the search of appellants’ home is to be found in the testimony of Deputy Sheriff Sulli

An arrest without a warrant can only be legally made if the person arrested has committed a public offense in the presence of the arresting officer or if the arresting officer has reasonable cause to believe that the person arrested has committed a felony. (Pen. Code, § 836; People v. Boyles, 45 Cal.2d 652 , 655 [ 290 P.2d 535 ]; People v. Simon, 45 Cal.2d 645 , 648 [ 290 P.2d 531 ].)

The question of probable cause to justify the arrest of Edwards and the search of the premises incident thereto must be tested upon the facts which the record shows were known to the officers at the time the arrest was made. (People v. Paul, 147 Cal.App.2d 609 , 618 [ 305 P.2d 996 ].) Baldly stated, those facts were: 1. Some days before September 18, 1958, Edwards was seen talking to a known burglar; 2. police records showed that Edwards had a previous record for burglary; 3. Edwards, the appellants and their children over

This court has held that an arrest without a warrant can only be made if the facts known to the officer before making the arrest would justify the officer in making the arrest, and that such an arrest cannot be justified by what a search following the arrest turns up. (People v. Brown, 45 Cal.2d 640 , 643 [ 290 P.2d 528 ].)

Whether or not we characterize Edwards and Gould as “professional burglars” because they both had a past burglary record, whether or not we characterize their street conversation as “making a meet” (thus by a semantic slant putting an aura of criminality about what so far as the police officers knew was an entirely innocent conversation), and whether or not we add the additional fact that a large number of burglaries were committed in Los Angeles County in 1958, we would still have no more than a reason for further police investigation of Gould and Edwards to determine whether any substantial evidence could be discovered which would connect either of them with the commission of any one or more burglaries. It would be destructive of the constitutional safeguards to permit police officers to break into any private home where the officers had no information tending to connect any occupant thereof with any reported or known felony.

It is impossible to distinguish this case in principle from People v. Sanders, supra, 46 Cal.2d 247 . There the defendant was known to the arresting officers as a bookmaker who had been convicted in the past of bookmaking. The defendant was operating a phonograph record shop. Another bookmaker had been arrested in the shop on the day before. The officers,

Substitute record of burglary for record of bookmaking, substitute conversation on the street with another man who also had a burglary record for “the fact that another bookmaker had been on the premises the day before,” and the parallel could hardly be closer. It would seem that in Sanders the police expertise with regard to bookmaking would be equal to the police expertise with regard to burglary in the present case; and, while we have every sympathy for the problems of the police, we cannot permit such sympathy to weigh against the unjustified invasion of the constitutionally protected security of the home and person; nor on any theory of police expertise, or otherwise, hold that a private home may be violently entered on the meager showing made in this case.

We are satisfied that without this evidence there is a reasonable probability that the result would not have been the same,

Inasmuch as we are gouging the reasonableness of action by the police our duty, I think, requires that we determine not the weight but the bare existence of substantial evidence from the viewpoint of the police. In that statement, by the words “viewpoint of the police,” I mean the reasonable viewpoint of a skilled and experienced officer acting honestly in obedience to law and in the regular discharge of his official duty. On this appeal by defendants we are bound to presume in favor of sustaining the judgments against them that not they, but the officers are “innocent of crime or wrong,” that “official duty has been regularly performed”; and that “the law has been obeyed.” (Code Civ. Proe., § 1963, subds. 1, 15, 33.) Certainly police officers are, and should be, subject to our constitutional standards. It is of course for this court, not the officer, to make the ultimate determination whether there was reasonable cause for arrest and search (People v. Boyles (1955), 45 Cal.2d 652 , 656 [7] [ 290 P.2d 535 ]). But it seems equally certain to me that in making such determination this court should, as the trial court here did, regard the whole body of facts and expertise upon which the officer acted and respect the circumstance that the officer, trained and experienced in police work and in the ways of criminals, ivas entitled to call upon his store of knowledge and his own professional skills in the drawing of inferences from facts before him. To hold otherwise is to deprive the public of the benefits of a goodly portion of the special qualifications of those highly informed and understanding men who have earned burglary detail assignments.

The direct effect of the majority’s holding in this ease is to reverse two judgments of conviction. These convictions are reversed not because there is any substantial doubt as to the guilt of either defendant, and not because either defendant has been denied due process, but only because the majority justices, working from their own knowledge and experience,

A police officer (and a judge engaged in the trial of criminal eases) soon learns that not all skilled professional men devote their talents to the honorable professions. There are, of course, amateur burglars (whose work can often be recognized as such by experienced police), and there are professional burglars of varying degrees of skill and of differing schools of thought as to the more desirable areas of operation and techniques of execution. The number of men and women who practice burglary is large. In Los Angeles County alone, in the year 1958 (the year of the subject crimes) 62,082 burglaries were reported. That is at a rate of more than 170 each day of the year. In the state at large, burglary, in 1958, constituted 53 per cent of all the crimes reported in the seven major offense group.1 Surely the sheriff’s deputies and the policemen had a right to take into consideration such high incidence of burglaries. The District Court of Appeal (in People v. Stewart (1961), 189 Cal.App.2d- [ 10 Cal.Rptr. 879 ]) in sustaining questioning (of an initially unknown suspect) which led to arrest and search and the finding of a narcotic, declared (p.-- [1]) “In the instant case the fact of recent armed robberies certainly justified the officers in

The majority state that “The conduct of Edwards in entering and leaving the appellants’ home is not shown to have been accompanied by any suspicious conduct of any sort.” In my view the majority’s statement appears to be inconsistent with the evidence hereinabove related. Prom what the officers observed and what they knew, I think they had reasonable cause to believe that burglaries had been committed, that one or more of the persons in the appellants’ home had participated in a burglary and that stolen property might well be found in the premises if entry was promptly made. Delay might permit its being hidden, or the escape of a guilty person.

The majority further suggest that “the observed approach to a private home in the nighttime [about 9 p.m.] of a party of seven or eight roughly dressed men and their knocking on the door might reasonably lead the most innocent of persons to extinguish the lights hoping that they would depart, and their subsequent announcement that they were police officers might reasonably arouse a degree of scepticism that would lead the occupants to make no immediate response or indeed any response at all, except possibly to telephone for the aid of those whom they knew with certainty to be police.” Perhaps, as the majority suggest, “the most innocent of persons” might be frightened and might turn out the lights and telephone the police. But I think that three persons together in a single residence, one of them guilty of burglary, another guilty of receiving stolen property (with stolen property in the house), and the third being a professional burglar, might be even

As authority for holding that in the circumstances of this case the police acted unlawfully when they forced entry as above related, the majority rely principally upon the majority decision in People v. Sanders (1956), 46 Cal.2d 247 [ 294 P.2d 10 ]. There are, however, substantial differences between the facts of that case and those in the case at bench. First of all it is to be noted that in Sanders we affirmed the order of the trial court granting defendant’s motion to set aside the information; here, the judgments are being reversed.

Secondly, in Sanders the police simply walked into a store which was open for business and, looking through an open door panel, observed the proprietor doing nothing suspicious. As described in the Sanders opinion (p. 250 [lb] of 46 Cal.2d),

‘ ‘ [B] efore the arrest and search defendant’s activities appeared to be perfectly consistent with the lawful conduct of his [phonograph] record business. Defendant was merely present in his office with a pencil in his hand and pads of paper on the table in front of him, and there was no basis for concluding that he was using these items for bookmaking rather than for his business that was then open to the public. Moreover, since there was no telephone in the room where defendant was, or any indication that he had just completed a telephone call, or that any other person was present, there was absolutely no basis from appearances for concluding that the writing on the pads was in response to a call or calls that might have been made to place bets or to record bets placed by persons visiting the shop.”

It is apparent that, among the obvious differences between the Sanders case and the present ease, in Sanders the place had not been under surveillance for three or four days with frequent comings and goings of persons under suspicion. It is true that Sanders had been known as a bookmaker and, hence, had a background of criminal activity but at that point the similarities of the Sanders case and this case cease. The proclivities of that bookmaker (or others of his class) and those of the subject professional burglar (or others of his type) may be considerably different and, when viewed by an officer who is qualified as an expert and who had knowledge

In People v. Simon (1955), 45 Cal.2d 645 , 650 [7] [ 290 P.2d 531 ], this court said, “There is, of course, nothing unreasonable in an officer’s questioning persons outdoors at night [citations], and it is possible that in some circumstances even a refusal to answer would, in the light of other evidence, justify an arrest.” (See also People v. Michael (1955), 45 Cal.2d 751 , 754 [4, 3b] [ 290 P.2d 852 ].) If there is nothing unreasonable in officers’ questioning persons outdoors at night it appears to me that, when officers have had a known burglar and his associates under surveillance while they came and went from the same house for several days and nights and have seen them travel together in an automobile to a spot where the known burglar “made a meet” with another professional burglar, there is nothing unreasonable in the officers’ seeking to question such persons inside their house at about 9 o’clock in the evening. When those persons, instead of answering the officers’ knock, turned out the lights and refused for even a brief period to open the door or make other response when the officers identified themselves, then as good police officers knowing what they knew, it seems to me that they did not act irrationally in concluding that they had no proper alternative but to break into the house. (See People v. Martin (1955), 45 Cal.2d 755 , 762-763 [12, 14, 16] [ 290 P.2d 855 ].)

It has been argued that the officers should have surrounded the house to prevent anyone from leaving it and sent one of their number to seek out a judge and request the issuance of a search warrant, but it does not seem to me that the course which the officers here did pursue can be branded as unreasonable and unjustified as a matter of law. If the Sanders case, supra, 46 Cal.2d 247 , is, as the majority assert, irreconcilably inconsistent with upholding the conduct of the officers in the ease now before us, then I would say that rather than following Sanders we should unhesitatingly overrule it. However, it does not appear to me that Sanders is in principle indistinguishable. As above indicated, in that ease officers, without permission or warrant, entered a room in which Sanders, although a known bookmaker, was pursuing an apparently innocent business so far as the officers, prior to arresting him and searching his premises, were able to observe. Here, on the other hand,

In studying this case it has seemed to me — although I cannot know under what difficulties the prosecutor may have worked — that more details as to the actual knowledge of the officers leading up to their surveillance of the defendants and entry of the premises might well have been spelled out in the evidence. Such details could easily have included those which I have supplied simply from reference to published official reports, with which we can infer or presume the officers were familiar but as to which not all of us might be informed. Nevertheless, it remains the duty of an appellate court in reviewing a record to be ever mindful of the rule that every permissible inference is to be drawn in favor of affirming the trial court's judgment. It is also to be presumed that the officers acted regularly in the performance of official duty. As I view this record and apply that rule I am impressed with the conclusion that the deputy sheriffs and police officers drew proper inferences and that the trial judge and the three justices of the District Court of Appeal reached rational conclusions. I think the efficient and intelligent men of the sheriff’s and police department’s burglary details should be commended for their alert and expeditious action rather than condemned for making illegal entry, and frustrated in what must have seemed to them a job well done.

I would affirm the judgments.

Me Comb, J., concurred.