People v. Barthel

• Decision Date: 22 January 1965
• Docket Number: Cr. 1674
• Citation: 231 Cal.App.2d 827,42 Cal.Rptr. 290
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Linda Rotan BARTHEL, Defendant and Appellant.

Page 290

42 Cal.Rptr. 290

231 Cal.App.2d 827

The PEOPLE of the State of California, Plaintiff and Respondent, v. Linda Rotan BARTHEL, Defendant and Appellant.

Cr. 1674.

District Court of Appeal, Fourth District, California.

Jan. 22, 1965.

Rehearing Denied Feb. 5, 1965.

Hearing Denied March 17, 1965.

Bruce Weathers, San Diego, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for respondent.

GERALD BROWN, Justice.

The defendant Linda R. Barthel was found guilty of violating three subdivisions of Penal Code, section 337a: (1) engaging in bookmaking, (2) occupying a room with betting paraphernalia, and (4) recording or registering bets. She admitted two prior felony convictions. The sentences for each violation were ordered to run consecutively and consecutively with any prior incompleted sentences.

On October 4, 1963, Officer Guerin presented an affidavit in Municipal Court upon which a warrant was issued authorizing a search of the persons and premises of Mathew and Linda Barthel at 3609 Curlew Street, San Diego.

That afternoon Officers Guerin, Murray, Schilder and Donnelly arrived at the Curlew Street address. Parking slightly past the house Guerin and Murray hurried to the front door; Schilder and Donnelly went to the rear. Murray knocked on the front door which was locked, and announced that he was a police officer. Guerin went to the rear while Murray continued to knock and announce that he was a police officer with a search warrant. Within a few moments he heard Guerin make a similar announcement, followed by activity inside which sounded like someone running.

Guerin went to the rear because he believed that it would be easier to enter there. When he arrived he found Schilder and Donnelly waiting outside a fence separating the patio from the house. The gate was stuck so Schilder vaulted the fence and headed for the bedroom door as Guerin loudly announced they were police with a search warrant. In a few moments Guerin followed and went to the kitchen door. Meanwhile Schilder had knocked at the bedroom door and announced that he was an officer with a search warrant, and hearing hurried movements inside he thrust his hand through the locked screen door and entered. The defendant was standing in the living room. From this position she could have observed the activities of the officers. She was arrested and the premises were searched.

The admissibility of the evidence is questioned, not its sufficiency. Several arguments are presented for reversal of the convictions on the ground that the evidence was illegally obtained. The first is that the search warrant was not issued on a proper showing of probable cause.

The Fourth Amendment of the United States Constitution, which has been incorporated into the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081), provides in part that:

'* * * no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Federal standards must be applied by the state courts in determining the sufficiency of the affidavit upon which the search warrant is issued. (Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.)

The defendant cites the Aguilar and Giordenello cases as controlling this case. In aguilar the affidavit upon which a local justice of the peace issued a search warrant, recited:

'Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates, and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.' (378 U.S. 109, 84 S.Ct. 1511.)

In holding the evidence obtained pursuant to the warrant was inadmissible the United States Supreme Court said:

'* * * the 'mere conclusion' that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only 'contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein,' it does not even contain an 'affirmative allegation' that the affiant's unidentified source 'spoke with personal knowledge.' For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession.' (378 U.S. 113-114, 84 S.Ct. 1513.)

It was recognized in Aguilar that where the magistrate is informed of some underlying circumstance from which the informant concluded a crime was being committed, and some underlying circumstance from which the officer concluded that the informant's information was reliable, that the affidavit would be sufficient, even though based upon hearsay. It was also carefully pointed out in Aguilar that the only information in the record to support a determination by the magistrate of probable cause was the affidavit.

In Giordenello the supporting affidavit of a federal narcotics agent declared:

'* * * That on or about January 26, 1956, at Houston, Texas * * * Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin, hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.

'And the complainant further states that he believes that _____ are material witnesses in relation to this charge.' (357 U.S. at 481, 78 S.Ct. at 1247.)

In holding the evidence obtained pursuant to this warrant inadmissible it was said:

'[T]he complaint in this case * * * does not pass muster because it does not provide any basis for the * * * determination * * * that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and does not set forth any other sufficient basis upon which a finding of probable cause could be made.' (357 U.S. at 486, 78 S.Ct. at 1250.)

In the case before us the supporting affidavit by Officer Guerin alleged that he received information from an undisclosed informant that horse racing bets were being accepted by a woman over the telephone number CY8-6056; this informant on six occasions had supplied information which had led to the conviction of fourteen persons for bookmaking and it was in the public's interest not to disclose the informant's identity; it was also alleged that an independent investigation revealed that the telephone and utilities were listed to M.R. Barthel, 3609 Curlew Street, who had a record of bookmaking convictions.

Thus, this affidavit is distinguishable from the affidavits condemned by the United States Supreme Court in the Aguilar and Giordenello cases. Here the informant told the officer that bets were being received by a woman over a specific telephone number. This implies personal knowledge of the informant which when coupled with the obvious reliability of the informant, and the information produced by the independent investigation, leads to the conclusion that there was compliance with constitutional standards. (See People v. Keener, 55 Cal.2d 714, 721, 12 Cal.Rptr. 859, 361 P.2d 587; cf., Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697.)

Next it is argued that the description in the affidavit of the property to be seized and the place to be searched was too general to meet constitutional and statutory standards which require that the oath or affirmation supporting the issuane of a search warrant must name or describe the person, property and place to be searched with reasonable particularity. (U.S.Const. Amend. XIV; Cal. Const. Art. I, § 19; Pen. Code, §§ 1525, 1529.) The test is whether the warrant places a meaningful restriction on the objects to be seized (Aday v. Superior Court, 55 Cal.2d 789, 796, 13 Cal.Rptr. 415, 362 P.2d 47). The affidavit and the warrant in this case named the defendant and her premises at 3609 Curlew Street and requested recovery of:

'* * * papers, books, records, pencils, pens, racing information, publications of all types, bet registrations radio, telephone, clock and all other bookmaking property and paraphernalia, used or capable of being used for the purpose of recording or registering bets upon horse races; * * *'

The evidence obtained consisted of envelopes, paper, examples of handwriting, a sportsman's guide, two telephones, a radio, a clock, an adding machine and pages from a newspaper. The warrant here fairly restricts, and the objects actually seized were the instrumentalities used in the commission of the crimes. In view of this we cannot say that the warrant authorized an exploratory search (cf., United States v. Clancy, 7 Cir., 276 F.2d 617).

The third attack on the admissibility of the evidence is that there was noncompliance with Penal Code, section 1531, which authorizes forcible entry if the officer executing the search warrant is refused admittance after notice of his authority and purpose. In this connection we are required to assume, in the light most favorable to the judgment, the existence of every fact including all inferences which the trial court could have reasonably deduced from the evidence. (People v. Deysher, 2 Cal.2d 141, 148, 40 P.2d 259.) Inconsistencies in the testimony of the entering officers do not require its rejection (People v. Wade, 53 Cal.2d 322, 329, 1 Cal.Rptr. 683, 348 P.2d 116.). Applying these rules we conclude Officer Murray made a proper announcement and heard hurried activity on the inside before any of the officers forcibly entered the premises. Additionally, Officer Schilder properly announced himself at the rear door and also heard hurried activity inside before entering. Evidence used in bookmaking violations may be readily...