Opinion
Cr. 5833
6-17-1957
The PEOPLE of the State of California, Plaintiff and Appellant, v. John Jack FISCHER, Defendant and Respondent.*
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for appellant. Henry Galen, Los Angeles, for respondent.
The PEOPLE of the State of California, Plaintiff and Appellant,
v.
John Jack FISCHER, Defendant and Respondent.*
June 17, 1957.
Rehearing Denied July 10, 1957.
Hearing Granted Aug. 15, 1957.
Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., William B. McKesson, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist. Attys., Los Angeles, for appellant.
Henry Galen, Los Angeles, for respondent.
SHINN, Presiding Justice.
John Jack Fischer was charged by information in Count I with bookmaking; in Count II with unlawfully keeping and occupying an apartment for the purpose of recording and registering bets on horse races; and in Count III with having recorded and registered a bet or bets on horse races. Penal Code, § 337a, subds. 1, 2 & 4. Upon the preliminary hearing he was committed for trial. He made a motion to set aside the information under section 995 of the Penal Code on the ground that he had been committed without reasonable or probable cause. The motion was granted and the People appeal.
The evidence at the preliminary hearing established the following facts. Frank W. Bridges and James Collins are Los Angeles County sheriff's deputies assigned to the vice detail. On July 21, 1956, Bridges was informed by his captain that bookmaking was being conducted over telephone number Angelus 3-2811 which was listed at 2238 Cowlin Street in East Los Angeles. Bridges, Collins and two other deputies went to that location at about 1:30 p.m.; they did not know defendant and had neither a search warrant nor a warrant for Fischer's arrest. The location consisted of a single story frame duplex containing two apartments. Each apartment had a separate front entrance and rear exit. The officers kept the premises under observation for ten or fifteen minutes; Bridges, Collins and a third deputy watched the front of the building while the other deputy watched the back. No one was seen to enter or leave the premises during this time. Officer Bridges then went to a public telephone booth several hundred feet south of the location and dialed the number given him by his captain. A male voice answered the telephone. Bridges said: 'This is Al for Red, I want two to win on Satin Lady in the second.' The voice replied: 'All right' and then said 'Wait a minute, who is this?' Bridges answered: 'It is Al for Red.' The voice responded: 'I don't know what you are talking about.' Bridges replied: 'Shall I have Red call you?' The male voice said 'Yes.' Bridges hung up the receiver, called out to Collins, and proceeded towards the duplex. As the officers approached the building they saw defendant coming out the front door of one of the apartments. They identified themselves and arrested Fischer on suspicion of bookmaking. At the time of the arrest, defendant was several feet in front of the door of the apartment and was holding a copy of the National Daily Reporter for July 21st.
The deputies entered the apartment with defendant. On a table in the main room they observed a telephone; the number was Angelus 3-2811. Beside the telephone they saw a small blackboard, a box of chalk and some pencils. (Officer Bridges qualified as an expert witness with reference to bookmaking procedures in Los Angeles County and testified that telephones, blackboards and chalk are commonly used by bookmakers in the conduct of their business.) While the deputies were in the apartment, the telephone rang several times and Bridges answered the calls. He testified as to the details of the conversations and stated his opinion that the callers were attempting to place wagers on horses running at various race tracks that afternoon.
Defendant complied with the officers' request to empty his pockets; he placed some keys on the table. He was asked if any of the keys belonged to his car and he said that they did. The deputies asked what model car he owned and Fischer said he had a Kaiser. Bridges asked if they could look at the car and defendant said 'Yes'; he told them it was parked around the corner. Bridges gave the keys to Collins and told him to search defendant's automobile. The car was parked on a side street about 100 feet from the apartment. Collins looked through the window and saw some lined strips of yellow paper protruding from some old newspapers on the floor; the yellow sheets had writing on them but he could not read the writing. These were taken by the officers and were introduced in evidence. Officer Bridges testified that he had made a comparison of the notations on the strips of paper with information obtained from defendant's copy of the National Daily Reporter; he stated his opinion that the strips were betting markers which represented bets on horse races running on July 21st. A handwriting expert testified that he had compared the writing on the betting markers with an exemplar of defendant's handwritting taken at the police station; he gave his opinion that the markers were in Fischer's handwriting.
Shortly after the arrest defendant told the officers that he had been bookmaking on the premises for one day, that he took bets over the telephone and recorded them on the blackboard with chalk, that someone would call him and he would relay the bets, and that he had also written bets down on the strips of paper, but had discontinued doing so shortly before the officers arrived. He later denied to the officers that he was a bookmaker.
The question is whether the evidence disclosed probable cause for committing defendant for trial. There was probable cause if there was evidence which would lead a person of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. Bompensiero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250. If the fact that defendant was bookmaking and recording bets in the apartment was established by competent and admissible evidence, probable cause was shown. Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929. If the only evidence produced against him was incompetent and inadmissible, there did not exist probable cause to hold him to answer and the court properly granted his motion to set aside the information. Badillo v. Superior Court, 46 Cal.2d 269, 294 P.2d 23.
The People argue that the search of the apartment was incident to the arrest of defendant and that the arrest was valid because the officers had reasonable cause to believe that Fischer had committed a felony in their presence. Coverstone v. Davies, 38 Cal.2d 315, 320-321, 239 P.2d 876. The attorney general concedes that the search of defendant's automobile cannot be justified upon that ground (see Hernandez v. Superior Court, 143 Cal.App.2d 20, 299 P.2d 678), but it is argued that the car was searched with Fischer's consent.
We agree with the attorney general that the circumstances warranted a reasonable belief that the premises were being used for bookmaking purposes. The telephone conversation confirmed the information obtained from the captain and it strongly indicated that Bridges was talking to a person who was ready and willing to accept a bet.
Although the conversation was properly to be considered in deciding whether there was reasonable cause for Fischer's arrest (People v. Miller, 143 Cal.App.2d 558, 560-561, 299 P.2d 1010; People v. Ferrera, 149 Cal.App.2d 850, 309 P.2d 533), it was not determinative as to the legality of the arrest. If the officers had reasonable grounds for believing that Fischer was the person who was conducting the bookmaking operation the arrest was valid, a subsequent reasonable search of the apartment was lawful, and the evidence obtained thereby was not to be excluded. (People v. Guy, 145 Cal.App.2d 481, 302 P.2d 657, and cases cited.) However, we agree with the trial court that the deputies did not have reasonable cause for the arrest.
Although the officers made a good guess, this is not the criterion; a search is not to be justified simply because it uncovers proof of a suspect's guilt. People v. Brown, 45 Cal.2d 640, 290 P.2d 528; People v. Simon, 45 Cal.2d 645, 290 P.2d 531. In the present case the lawfulness of the officers' actions could only be judged on the basis of the information they had received, the telephone conversation and the reasonable inferences to be drawn therefrom at the time of the arrest. People v. Soto, 144 Cal.App.2d 294, 298-299, 301 P.2d 45, and cases cited.
Belief that Fischer was guilty would necessarily rest on the assumption that he was the person with whom Bridges had the conversation. But there was nothing to warrant that assumption other than the fact that defendant had been in the apartment; the officers did not know who the bookmaker was when they went to the location and they admittedly did not know Fischer. They did not know whether there were other persons in the apartment and made no effort to find out. They did not observe any suspicious conduct on the part of defendant before he stepped onto the porch. He had a copy of the National Daily Reporter, but it does not appear that the officers noticed it before the arrest; nor would the mere possession of a publication devoted to the turf justify a belief that it was being used for an illicit purpose. People v. Wilson, 145 Cal.App.2d 1, 301 P.2d 974.
For aught that the officers knew, defendant could have been inside the apartment for any number of legitimate reasons and with any number of persons. The officers were already hastening toward the apartment apparently prepared to enter it when they first saw defendant. The most that can be said is that defendant was apprehended because he happened to be leaving the premises alone when the officers approached. If two or a half dozen persons had left together the officers would have had no reason for identifying any one of them as the receiver of the telephone call. They merely assumed that defendant had been alone in the apartment. The presence of an individual on property which is thought to be the location of some unlawful activity is not sufficient to establish reasonable cause for his arrest in the absence of other circumstances which incriminate him. People v. Yet Ning Yee, 145 Cal.App.2d 513, 302 P.2d 616, and cases cited.
The cases relied upon by the attorney general are distinguishable. In People v. Miller, 146 Cal.App.2d 444, 304 P.2d 208, the officers learned from a reliable informant that bookmaking was being carried on over a certain telephone number on the premises; after telephoning that number and placing a bet, they entered the premises by lawful means and saw the accused with bookmaking paraphernalia. We held in that case that probable cause for the arrest and search was shown. People v. Miller, supra, 143 Cal.App.2d 558, 299 P.2d 1010 and People v. King, 140 Cal.App.2d 1, 294 P.2d 972 were substantially similar to People v. Miller, supra, 146 Cal.App.2d 444, 304 P.2d 208. In each of these three cases the defendant was arrested when he was found inside the suspected premises and in possession of bookmaking equipment, while in the present case, Fischer was merely seen leaving the premises.
The People seek to justify the search of Fischer's automobile on the ground that he freely consented to it. Fischer contends that permission to search the car was coerced by the officers. Whether consent to a search was voluntary or was the result of an assertion of authority thority by the arresting officers was a question of fact to be determined in the light of the circumstances. People v. Michael, 45 Cal.2d 751, 290 P.2d 852. Defendant was asked to empty his pockets and place his personal belongings on the table; permission to take the car keys and look at his car was given after Fischer had been unlawfully arrested and the apartment subjected to an unlawful search. The court below was warranted in its implied determination that Fischer did not voluntarily consent to the search of his car and that the search was therefore unreasonable. People v. Wilson, supra, 145 Cal.App.2d 1, 301 P.2d 974.
The order is affirmed.
PARKER WOOD and VALLEE, JJ., concur. --------------- * Opinion vacated 317 P.2d 967.