People v. Schaumloffel

• Decision Date: 24 November 1959
• Docket Number: Cr. 6513
• Citation: 346 P.2d 393,53 Cal.2d 96
• Court: California Supreme Court
• Parties: PEOPLE of the State of California, Respondent, v. Roland A. SCHAUMLOFFEL, Appellant.

Page 393

346 P.2d 393

53 Cal.2d 96

PEOPLE of the State of California, Respondent, v. Roland A. SCHAUMLOFFEL, Appellant.

Cr. 6513.

Supreme Court of California, In Bank.

Nov. 24, 1959.

Homer C. Compton, Los Angeles, Brock, Fleishman & Rykoff and Robert L. Brock, Hollywood, for appellant.

Edmund G. Brown and Stanley Mosk, Attys. Gen., William E. James, Asst. Atty. Gen., and Norman B. Peek, Deputy Atty. Gen., for respondent.

PER CURIAM.

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 the crime of abortion, but upon her motion, at the close of the prosecution's case, the court dismissed that count insofar as it pertained to her.

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 appellant's office, and that she had made arrangements for appellant to perform an abortion on her; when Mrs. Thurmond came out of the office, she told the officer that appellant had performed an abortion on her; she also said that appellant had written her name and some information on a 5 by 7 card and had placed the card on a shelf near the operating table; then (about 2 p. m.) the four officers entered appellant's office and arrested him for committing abortions illegally; he (witness) searched appellant and the immediate premises; the search related primarily to seeking evidence as to the Thurmond abortion, but he was also seeking evidence regarding Barofsky; he took the following things from the office: a number of deposit slips from the drawer of the desk in the consultation office, loose sheets of paper, loose-leaf alphabetical notebook, and a 1956 diary; none of those things related to Thurmond or Barofsky; he took $600 from appellant's pockets, and he also took from appellant's pocket a small vial containing what appeared to be parts of a fetus; one group of patient records was in a filing cabinet in the nurse's office, and another group of such records was on a shelf by the operating table; he (witness) looked through the regular file of patient records, but he could not recall whether those records were 5 by 7 cards; he looked wherever it was apparent to him that such cards might be found; from the shelf, he took a number of 5 by 7 cards on which there was writing; the cards on the shelf were not in a box or cabinet but were 'lying out' in the open; the names on those cards were names of persons unknown to the witness; he did not find a card that referred to Thurmond or Barofsky or Watts; one of the cards which he took from the shelf had the name 'Rosella Edgar' on it; he took that card because it was similar to cards which had been described by Thurmond and Barofsky; when he took the Edgar card he anticipated that he would 'contact her and see under what circumstances she had been' in appellant's office; he took cards from the shelf because those cards were separated from other cards in the office, and there were names and addresses on them; he wanted 'to follow that (Edgar card) up' because it would tend to corroborate the charge against appellant on the Thurmond matter, and it would tend to support a charge against appellant with reference to Edgar; he did not find anything in the office relating to Edgar, other than the card with her name on it; a distinguishing factor of the cards was that names of women were on them; his (witness') experience had been that doctors who perform abortions do not keep proper records, and sometimes the records are cryptic or they report something 'other than what they actually do'; prior to the arrest of appellant, the officer (witness) had no information relating to Edgar, Watts, or Justsen; he did not have a search warrant or a warrant of arrest; over a period of approximately seven years he had made about 100 arrests for the crime of abortion, and in connection therewith he had made searches; he had never obtained a warrant for the searches; as a matter of policy a search warrant is not sought; when he had obtained a search warrant in cases which did not involve abortion, he found 'the procedure to be rather time consuming and cumbersome.'

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 gave them pelvic examinations. It is not necessary to state the details of their testimony. The testimony of each of them was to the effect that appellant illegally performed an abortion on her. The testimony of appellant was to the effect that he did not perform an abortion on either of them. Appellant objected to the testimony of Edgar, Watts, and Justsen on the ground that their names as witnesses in the case were obtained as a result of illegal search and seizure. The objections were overruled.

According to Officer Zander's testimony, the officers entered appellant's office for the purpose of arresting him on a charge of illegally performing an abortion on Mrs. Thurmond; they arrested him on that charge; and they searched him and his office for the purpose of obtaining evidence in connection with that arrest and in connection with the alleged abortion performed on Barofsky. The officers searched all of the doctor's records regarding his patients, and they looked wherever it seemed to them that there might be 5 by 7 cards. It thus appears that they ransacked and looked at all his medical records which were confidential...