People v. Carswell

• Citation: 149 Cal.App.2d 395,308 P.2d 852
• Decision Date: 25 March 1957
• Docket Number: Cr. 3245
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank CARSWELL, Defendant and Appellant.

Page 852

308 P.2d 852

149 Cal.App.2d 395

The PEOPLE of the State of California, Plaintiff and Respondent, v. Frank CARSWELL, Defendant and Appellant.

Cr. 3245.

District Court of Appeal, First District, Division 2, California.

March 25, 1957.

James M. Dennis, Redwood City, for appellant.

Edmund G. Brown, Atty. Gen. of California, Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

PER CURIAM.

Defendant was found guilty by a jury on an information accusing him together with Andrew White and Robert Hunter of burglarizing the store of Markus Hardware Company at 628 Washington Street in Oakland, and charging him with a prior felony conviction. His motion for a new trial was denied and he appealed from the judgment of conviction and from the order denying his motion for a new trial.

The main witness for the prosecution was Charles E. Holmes who prior to the trial had pleaded guilty to the same burglary. Defendant White changed his plea to guilty early in the trial but did not testify. Holmes, White and Hunter lived at the Magnolia Hotel on 7th Street near Washington Street adjacent to the store of the Marcus Hardware Company. Holmes testified at length to the discussion of the job by all four men in the hotel on Sunday, November 20th, their going down a fire escape to the roof of the store and the entry of all four through a skylight, the taking of guns, the return to White's room in the hotel where the loot was divided among them, and the bringing of part of the guns outside the hotel wrapped in sheets, by Carswell, White and Hunter at or about 8 or 9 o'clock that evening. The department manager of the store testified that when he came to work on the next Monday morning, 27 of the guns on a rack, which he had checked on Saturday evening, were missing. Of these 19 were recovered by the police partly in locations indicated by Holmes. Nine were found in a room rented by defendant on the upper floor of a duplex at 800-11th Street in Oakland.

Appellant's primary grievance is the admission into evidence over objection of the guns found in his room and of testimony regarding their finding, which he contends was the result of an illegal search. It is conceded that the original entry of the police into 800-11th Street was without a search warrant and that the burden rested on the prosecution to show proper justification. Badillo v. Superior Court, 46 Cal.2d 269, 272, 294 P.2d 23; People v. Bock Leung Chew, 142 Cal.App.2d 400, 402, 298 P.2d 118. The question presented is whether the trial court could hold under the evidence produced on voir dire that the prosecution had sustained said burden. The following occurred:

When Inspector Richardson testified that on November 21, 1955 he went with one police lieutenant and three other inspectors to the premises at 800-11th Street, that he went upstairs there and observed some guns, counsel objected and asked that voir dire relating to the Cahan rule be allowed. Under questioning by counsel the inspector testified that he entered the premises at 800-11th Street on November 21st, that they did not search it, and that at the time they had no search warrant. The court then directed the prosecution to develop the matter. Under questioning by the district attorney the inspector testified further: 'We knocked on the door and were admitted by a man who was painting the premises * * * We found the upstairs portion to be vacant * * * with the exception of one room. The painter opened this door and we were able to observe one of the guns.' On questions by the court the inspector stated that he did not see anyone else on the premises at the time, 'just the painter', that there was no objection whatsoever on his part to admitting him to the premises and that the door was opened by the painter, after which testimony the objection was overruled. The testimony then continued to the effect that the witness 'did not enter and take anything from there at that time.' The premises were a two family dwelling, a duplex, the bottom half of which was occupied by the owner and his family. The upper portion was at the time vacant with the exception of this one room. 'This one room proved to be Mr. Carswell's room. The following day they obtained a search warrant. (This search warrant was admitted into evidence over objection for the limited purpose of proving that the subsequent entry was legal, and with instruction to the jury that the facts recited in the affidavit attached to it were not proof of the facts stated.) On the 22nd the witness and other officers entered Mr. Carswell's room and removed the guns, one gun that was lying across the foot of the bed and eight that were stacked in the closet. They matched the described stolen guns from Markus Hardware and were received into evidence as exhibits. Carswell was not in custody at the time.

'It is, of course, settled that if the conduct of the officers in entering or searching was unlawful, the search warrant subsequently obtained based on their observation in the apartment was invalid.' People v. Roberts, 47 Cal.2d 374, 303 P.2d 721, 722. It must also be noted that the People do not contend that the entry into the building was made with relation to any arrest or that there was any probable cause for an arrest or search.

If the officers, without taking any illegal action, happened to see incriminating evidence in defendant's room, then there is no reason for excluding such evidence. People v. Roberts, supra, 47 Cal.2d 374, 303 P.2d 721; People v. Martin, 45 Cal.2d 755, 761 et seq., 290 P.2d 855; People v. Chin, 145 A.C.A. 703, 707. However, if the officers were illegally at the door of the room of defendant in the duplex, even if their presence was not in violation of defendant's own constitutional rights but in violation of those of the landlord, People v. Martin, supra, 45 Cal.2d at page 761, 290 P.2d at page 857 or if they illegally caused the door to be opened for them by a person of whom they had no reason to believe that he had authority to do so, People v. Roberts, supra, 47 Cal.2d at page 376, 303 P.2d at page 722, then the knowledge so obtained could not be used as evidence or as the basis to obtain further evidence. The incomplete and vague evidence offered by the prosecution is wholly inconclusive as to which of the above two situations was present. It is not shown for what purpose, if not for a search, the officers went to the address, whether they asked permission to enter or asserted that they had a right to enter, see People v. Kitchens, 46 Cal.2d 260, 263, 294 P.2d 17, whether they asked for any person they were interested in or not; whether the painter who opened the door was authorized to permit them to walk through the house and to open the door of defendant's room in their sight, or whether and why they in good faith believed that he was so authorized, People v. Roberts, supra, 47 Cal.2d at page 376, 303 P.2d at page 722, what ground they gave to the painter for wishing to enter the house and go to the second floor, (a circumstance on which may depend whether they could in good faith believe that he was authorized to permit them to do so), whether they requested or ordered the painter to open the door of defendant's room or whether he opened it of his own initiative; whether the door to the room was locked and the painter used a key or not. Without knowledge of such further circumstances, which were necessarily known to the witness and available to the prosecution on whom the burden of proof was imposed, there was no basis for any inference as to whether the action of the public officers was lawful or unlawful in relation to the rule of the Cahan case, People v. Cahan, 44 Cal.2d 434, 282 P.2d 905.

Respondent contends that, although where it was shown that the officers did not have a search warrant the burden of showing justification for the entry was on the prosecution, after it had offered some evidence (held by us to be wholly inconclusive) the missing evidence should be considered to be in its favor on the basis of the rule quoted from People v. Farrara, 46 Cal.2d 265, 269, 294 P.2d 21, 23, that 'in the absence of evidence to the contrary it must * * * be presumed that the officers regularly and lawfully performed their duties.' We understand both the Badillo case, supra, and the Farrara case itself to hold that this presumption has been prima facie rebutted when defendant has shown that the entry was made without a search warrant and that then the burden is on the prosecution to prove justification without the benefit of said presumption. In the Badillo case it is said, 46 Cal.2d at page 272, 294 P.2d at page 25, 'In the absence of evidence to the contrary, it is presumed that the officers acted legally (see People v. Farrara, ante, 294 P.2d 21, and if the issue is raised for the first time on a motion to set aside the information, the motion should be denied unless the evidence before the committing magistrate establishes that essential evidence was illegally obtained. When, however, the question of the legality of an arrest or of a search and seizure is raised either at the preliminary hearing or at the trial, the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant, and the burden then rests on the prosecution to show proper justification.' In the Farrara case, 46 Cal.2d at page 268, 269, 294 P.2d at page 23, it is stated: 'In Badillo v. Superior Court, 294 P.2d 23, we held in this respect that 'the defendant makes a prima facie case when he establishes that an...