People v. Burke

• Decision Date: 30 July 1964
• Docket Number: Cr. 7914
• Citation: 61 Cal.2d 575,39 Cal.Rptr. 531,394 P.2d 67
• Court: California Supreme Court
• Parties: , 394 P.2d 67 The PEOPLE, Plaintiff and Respondent v. Roy Charles BURKE, Defendant and Appellant.

Page 531

39 Cal.Rptr. 531

61 Cal.2d 575, 394 P.2d 67

The PEOPLE, Plaintiff and Respondent v. Roy Charles BURKE, Defendant and Appellant.

Cr. 7914.

Supreme Court of California, In Bank.

July 30, 1964.

As Modified on Denial of Rehearing Aug. 25, 1964.

Charles H. Matthews, Los Angeles, under appointment by the District Court of Appeal, and George T. Davis, San Francisco, under appointment by the Supreme Court, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and C. Anthony Collins, Deputy Atty. Gen., for plaintiff and respondent.

GIBSON, Chief Justice.

The sole question presented on this appeal is whether certain evidence introduced at the trial of defendant was obtained as the result of an illegal search and seizure.

About 4 a. m. on February 22, 1962, Dr. Norman Lavet went to his office at 1449 North Gardner Street, Los Angeles, in answer to a call from the police. He found that his office had been ransacked and that several items were missing, including an X-ray negative and some bottles of Demerol (which the doctor referred to as a narcotic agent). At 6:30 a. m. on the same day, a police officer observed two men in an automobile driving slowly along Robertson Boulevard in Beverly Hills, looking at office buildings. He followed and saw them park the car, and after about five minutes enter the open archway of a nearby building. Numerous burglaries had recently been perpetrated in the neighborhood, and the officer radioed for assistance, parked his car, and approached the building through the archway. He saw defendant standing by a closed door leading into the building. Defendant saw the police officer and said something, apparently to his companion, who appeared immediately and ran toward the back of the building. He stopped when the officer ordered him to halt.

When questioned by the officer as to why they were in the building, defendant said they were looking for 'something in the restaurant supply,' but when the officer pointed out that there was no business of that kind in the building defendant remained silent. Because of the unsatisfactory explanation and the suspicious actions of the two men, the officer arrested them. Another officer arrived shortly thereafter in response to the radio call, and defendant was put into a police car. An officer saw defendant put his hand behind the back of the seat of the police car, and a screwdriver was later found behind the seat where defendant had been sitting. A pair of gloves was found in the front seat of defendant's car. Defendant told the officers that the car he was driving belonged to him and he gave some keys to an officer, who tried to unlock the trunk but none of the keys would open it. According to defendant he had loaned the car to his companion the night before and had given him a key ring containing three keys, including the ignition key and the trunk key, and did not notice that the trunk key had not been returned to him until the officer tried unsuccessfully to unlock the trunk. The trunk was not searched at the scene of the arrest.

Defendant was taken to the police station, and his car was towed to the police impound lot, where the trunk was opened and searched by police officers. They found a large manila envelope containing an X-ray negative and 'a package containing assorted pills.' There was no evidence with respect to when the search was made, but it must have occurred before 3 0'clock in the afternoon on the day of the arrest because defendant was questioned at that time about the articles found in the trunk.

The X-ray negative, gloves, and screwdriver were admitted in evidence over defendant's objection that they were obtained as the result of an illegal search and seizure.

It does not appear that the police officers had a search warrant, and in the absence of such a showing we must conclude that they did not have one. (Cf. Mapp v. Ohio (1961), 367 U.S. 643, 645, 81 S.Ct. 1684, 6 L.Ed.2d 1081.) Ordinarily proof of the existence of a search warrant is a simple matter, and in the face of an objection that the evidence has been illegally obtained it seems obvious that the prosecution will produce a warrant if one exists. The cases of People v. Maddox (1956) 46 Cal.2d 301, 294 P.2d 6, People v. Citrino (1956) 46 Cal.2d 284, 294 P.2d 32, and People v. Farrara (1956) 46 Cal.2d 265, 294 P.2d 21, are distinguishable; in those cases there was no objection on the ground that the evidence was illegally obtained, and, although the failure to object was excused because the cases were tried prior to People v. Cahan (1955) 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, the special rules applied due to this circumstance are not controlling in cases tried after Cahan. In Badillo v. Superior Court (1956) 46 Cal.2d 269, 272, 294 P.2d 23, the evidence established that the search was made without a warrant, and the language in the opinion must be viewed in the light of this fact. People v. McNeal (1963) 212 Cal.App.2d 731, 735, 28 Cal.Rptr. 173, and People v. Johnson (1961) 195 Cal.App.2d 573, 574-575, 16 Cal.Rptr. 1, are disapproved insofar as they are inconsistent with our conclusion.

Where officers are not responding to an emergency there must be compelling reasons and exceptional circumstances to justify a search in the avsence of a search warrant. McDonald v. United States (1948) 335 U.S. 451, 454-455, 69 S.Ct. 191, 93 L.Ed. 153.) One exception established in the law is the right to make a search without a warrant as an incident to a lawful arrest. (United States v. Rabinowitz (1950) 339 U.S. 56, 60-61, 70 S.Ct. 430, 94 L.Ed. 653; In re Dixon (1953) 41 Cal.2d 756, 761- 762, 264 P.2d 513.) The courts have recognized a distinction between a search of a building and a search of an automobile. Generally, there can be no search of a house without a search warrant except as an incident to a lawful arrest therein, and probable cause to believe that an article sought is concealed in the house furnishes no justification for a search of that place without a warrant. (Chapman v. United States (1961) 365 U.S. 610, 613, 81 s.Ct. 776, 5 L.Ed.2d 828; People v. Shelton (1964) 60 A.C. 729, 733, 36 Cal.Rptr. 433, 388 P.2d 665.) With respect to automobiles the courts have pointed out that it is not always practicable to obtain a warrant for search of a vehicle which can quickly be moved out of the locality, and, therefore, in some instances a search without a warrant will be justified by probable cause to believe that an automobile contains articles which by law are subject to seizure. (Carroll v. United States (1925) 267 U.S. 132, 149-153, 45 S.Ct. 280, 69 L.Ed. 543; People v. Terry (1964) 61 A.C. 121, 136-137, 37 Cal.Rptr. 605, 390 P.2d 381; see Chapman v. United States, supra, 365 U.S. 610, 615, 81 S.Ct. 776.)

Preston v. United States (1964) 376 U.S. 364, 84 S.Ct. 881, 882, 11 L.Ed.2d 777 et seq., involved a factual situation very similar to the one...