People v. Baranko

• Citation: 201 Cal.App.2d 189,20 Cal.Rptr. 139
• Decision Date: 12 March 1962
• Docket Number: Cr. 7918
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe BARANKO, Defendant and Appellant.

Page 139

20 Cal.Rptr. 139

201 Cal.App.2d 189

The PEOPLE of the State of California, Plaintiff and Respondent, v. Joe BARANKO, Defendant and Appellant.

Cr. 7918.

District Court of Appeal, Second District, Division 1, California.

March 12, 1962.

Rehearing Denied March 29, 1962.

Hearing Denied May 9, 1962.

Sheldon W. Andelson, Beverly Hills, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for respondent.

LILLIE, Justice.

Defendants Baranko and Fisher were jointly charged with violations of the bookmaking statute. The cause was submitted to the trial court on the transcript of the preliminary hearing; Baranko was found guilty of bookmaking in violation of section 337a, subd. 1, Penal Code. He appeals from the judgment of conviction. Appellant contends that the arrest of co-defendant Fisher was not valid thus the subsequent search and seizure were unlawful; that his arrest was not based on probable cause, search of the premises was not incident to a lawful arrest and betting markers and bookmaking paraphernalia were unlawfully seized; and that the lower court erred in receiving certain extrajudicial admissions.

The defendant neither testified nor offered a defense; the testimony of People's witnesses establishes the following: Upon receiving information from Officer Holmes that bookmaking was being conducted at two locations on 18th Street in the Santa Monica area, Deputy Sheriff Englert and other oficers began a surveillance thereof on April 18. On April 23, around 10 a. m. Englert observed a Cadillac automobile driven by defendant go through the location, stay a few minutes and leave; he followed the vehicle to a liquor store where defendant picked up a scratch sheet, a National Daily Reporter, and drove to 2418 Pier Avenue. Englert staked out at that address and ran down the license number of the vehicle which he found to be registered to defendant. On May 6, at approximately 10 a. m., Englert followed defendant from his home at 1504 Pearl Street to a liquor store where the latter again picked up a scratch sheet and drove to 2418 Pier Avenue where he stayed until approximately 6:30 p. m. On May 10 Englert found numerous pieces of betting markers in the alley behind 2418 Pier Avenue which he took to the Sheriff's handwriting expert who compared them with a handwriting card previously on file from a prior arrest of defendant; the expert's opinion to Englert was that the handwriting was the same as that of defendant.

On May 11 Englert gave Deputy McFee the foregoing facts and information that bookmaking was being conducted at 2418 Pier Avenue together with a description of defendant's car and identification and photograph of defendant. Thereafter on May 13, McFee began a surveillance at defendant's home; around 8:30 a. m. he observed defendant's Cadillac leave the location. He followed defendant to 2418 Pier Avenue where he continued his surveillance. Defendant remained inside approximately twenty minutes when he returned to his automobile; he sat in the vehicle about 10 minutes until co-defendant Fisher came out of 2418 Pier Avenue with a small child and entered the car. At 11:30 defendant and Mrs. Fisher returned to 2418 Pier. Deputy McFee met officer Holmes and around 1:30 p. m. knocked on the door of the residence at 2418 Pier Avenue. Co-defendant Fisher opened the door; McFee identified himself and placed her under arrest for bookmaking, then stepped inside the room and saw at his immediate left defendant talking on the telephone and writing on a piece of scratch pad. On the table he saw several betting markers and a National Daily Reporter for that day (May 13); he then arrested defendant for bookmaking. McFee asked defendant how long he had been making book at that location, he answered 'two days'; asked if the markers found on the premises were his, defendant said they were and were in his handwriting. All of the markers were in defendant's handwriting. McFee asked how much action he took at this location and defendant answered 'about $200 a day.'

McFee had no warrant either for the arrest of defendant or Fisher or for a search of the premises. Section 836, Penal Code, permits a peace officer to arrest a person without a warrant whenever 'he has reasonable cause to believe that the person to be arrested has committed a felony * * *.' (3)

What constitutes 'reasonable cause' depends upon the factual situation presented or apparent to the officers at the time they were required to act (People v. Ingle, 53 Cal.2d 407, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Kilvington, 104 Cal. 86, 37 P. 799); and the weight to be accorded the information in their posession at that time is for the trial court which determines whether the information, circumstances and facts upon which their belief that defendant has committed a felony was based constituted reasonable cause. (People v. Fisher, 184 Cal.App.2d 308, 7 Cal.Rptr. 461; People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; People v. Carella, 191 A.C.A. 110, 12 Cal.Rptr. 446.) 'Reasonable cause has been generally defined to be such a state of facts as would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.' (People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580; People v. Fischer, 49 Cal.2d 442, 317 P.2d 967; Bompensero v. Superior Court, 44 Cal.2d 178, 281 P.2d 250; People v. Kilvington, 104 Cal. 86, 37 P. 799.)

The evidence establishes that at the time he knocked on the door at 2418 Pier Avenue, Deputy McFee had in his possession not only the results of his own observation of defendant on May 13 but a description of defendant's automobile, identification and his photograph; information that bookmaking activities were being conducted at that address; and further information that Deputy Englert had observed defendant on three separate days leave his home around 10 a. m., buy a scratch sheet, go to 2418 Pier Avenue, remain there the day and leave around 6:30 p. m., and that pieces of betting markers he had picked up in the rear of the residence on Pier Avenue were established to be in defendant's handwriting. It seems clear that this evidence furnishes ample support for the trial court's implied finding that McFee had reasonable cause to believe that defendant was engaged in bookmaking, a felony, on the premises. These circumstances closely resemble those leading to the arrest of defendant in People v. Lundy, 151 Cal.App.2d 244, 311 P.2d 601. Pursuant to information from an informant that bookmaking activities were being conducted on the premises, officers kept an apartment under surveillance for several days; they observed defendant each morning leave with his dog, drive to a cigar store and buy a racing form, go to the park and let his dog run, and about 10:30 a. m. enter the premises where he remained until approximately 6 p. m. On one occasion while the dog exercised in the park, they saw defendant tear up betting markers and place the scraps in a garbage can. The court held that these facts alone furnished support for the lower court's finding that the officers had reasonable cause to believe defendant had committed a felony. Although other evidence disclosed a telephone call to defendant by an unnamed informant in the presence of the officers, the court excluded it from its consideration in determining the issue of probable cause.

Appellant has cited People v. Sanders, 46 Cal.2d 247, 294 P.2d 10, and People v. Foreman, 112 Cal.App.2d 616, 246 P.2d 979, to support his argument that there was no probable cause to arrest him; but there is no similarity whatever between the facts in either of these cases and those in the one at bar or in People v. Lundy, supra. Contrary to the situation here, the facts surrounding defendant's arrest in People v. Sanders, 46 Cal.2d 247, 294 P.2d 10, were entirely consistent with his legitimate conduct of a phonograph record business and thus did not constitute reasonable cause to make an arrest without a warrant. Although defendant was a known bookmaker, the court held the officers were not justified in entering a second room in his record shop after observing, through a hole in the door, defendant standing behind a desk in a room in which there was no telephone, with a pencil in his hand and two pads of paper containing writing in front of him, even though a bookmaker had been arrested on the premises the day before. Nor is People v. Foreman,...