People v. Earl

• Decision Date: 24 May 1963
• Docket Number: Cr. 1867
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas S. EARL, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 76

31 Cal.Rptr. 76

216 Cal.App.2d 607

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas S. EARL, Defendant and Appellant.

Cr. 1867.

District Court of Appeal, Fourth District, California.

May 24, 1963.

Rehearing Denied June 10, 1963.

Hearing Denied July 17, 1963.

Edgar G. Langford and J. Perry Langford, San Diego, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., and Rose-Marie Gruenwald, Deputy Atty. Gen., for respondent.

GRIFFIN, Presiding Justice.

One Eldridge Rhodes and defendant-appellant Thomas S. Earl were charged with sex perversion, under Penal Code, section 288a. A jury trial was waived and both defendants were found guilty. The matter was referred to another department for sexual psychopathy proceedings. A motion for new trial was denied. Appellant was certified for examination as a sexual psychopath. A hearing was had and he was ordered placed temporarily with the Department of Mental Hygiene at Atascadero. Only appellant Earl appeals from the order denying a new trial, which appeal is allowable in such a proceeding. (Pen.Code, sec. 1237, subdiv. 2; Rule 31(a), Rules of Court.)

FACTS

Two police officers, assigned to the vice squad, while in a police car, on July 1, 1962, had occasion to observe the two defendants together about 6:00 p. m. at Fifth and Market Streets in San Diego. They had received complaints about two male Negroes, whose description they had, indicating that they had been propositioning servicemen in the area on a pretext of setting up an opportunity for prostitution with a female. Their modus operandi was to direct the servicemen to nearby hotels, one of which was the Service Hotel. Defendant Rhodes fit the description of one of the Negroes and defendant Earl was a white male. The officers parked their vehicle and observed appellant and the co-defendant walking west on Market Street in the 400 block, and followed them approximately a block and a half to the Service Hotel, where the officers went to the hallway outside of room 214. The door was closed but the transom over the door was open. The officers remained outside of the closed door. They heard noises resembling a bed squeaking and also 'kissing type' noises coming from inside the room. The door to the room did not close tightly against the door frame and there was an opening caused thereby through which the officers could easily see. This aperture was just above the door knob and was approximately one-half inch to two inches in length and approximately one-half inch in width. There was also a gap in the molding. Officer Grimm looked into the room from this opening. He could see approximately one-half of the bed. Appellant and the co-defendant were sitting on the bed directly in front of the door. They were embracing and kissing each other. Both were undressed.

Officer Beaudry then assisted Officer Grimm with a hand-hold and he looked in through the open transom over the door and saw the same thing. It had clear glass. Officer Grimm then went down to the first floor of the hotel where the office was located and obtained a stool from the manager. He identified himself as a police officer. He took the stool back to the area of room 214 and Officer Beaudry got on the stool and looked through the transom. Officer Grimm looked through the hole in the door and saw the acts constituting a violation of Penal Code, section 288a, being committed by appellant and the co-defendant. The officers then forced the door and entered the room. Appellant and the co-defendant were the only other occupants of the room. Both were placed under arrest at that time. The officers did not have a warrant for the arrest or search of either defendant.

The only issue presented is whether or not the evidence was obtained by means of an illegal search.

Counsel for appellant concedes that if the evidence was lawfully admissible over proper objection to an unlawful search, it left no doubt as to the guilt of appellant. The trial court ruled that the evidence was admissible, based on the decisions of People v. Ruiz, 146 Cal.App.2d 630, 304 P.2d 175, and People v. Regalado, 193 Cal.App.2d 437, 14 Cal.Rptr. 217.

According to the Supreme Court in Bielicki v. Superior Court, 57 Cal.2d 602, 607, 21 Cal.Rptr. 552, 555, 371 P.2d 288, 291, the Bielicki case was not governed by the settled rule stated in those cases that:

'* * * 'looking through a window does not constitute an unreasonable search' (People v. Martin (1955) 45 Cal.2d 755, 762 , 290 P.2d 855, and cases there cited). * * * that a police officer may look through 'an open aperture in a person's home' without violating that person's constitutional rights * * *; and * * * that an officer may properly look through a tiny hole drilled in the door of a hotel room (People v. Regalado (1961) 193 Cal.App.2d 437, 442 , 14 Cal.Rptr. 217) or an apartment (People v. Ruiz (1956) 146 Cal.App.2d 630, 633 304 P.2d 175), provided that the officer himself has not drilled the hole.'

The Supreme Court neither approved nor disapproved the holdings in those decisions. Counsel for appellant states that if these holdings are still 'good law,' the ruling of the trial court in the instant case was correct and the order appealed from must be affirmed. He argues that the holding in those cases are incorrect and were, in effect, overruled by the subsequent decisions. The cases relied upon by appellant, the Bielicki and Britt (Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817) cases, involved sexual perversion, as in the present case. The evidence was obtained in the Bielicki and Britt cases by means of clandestine surveillance of booths or stalls in a public restroom. The surveillance in the Bielicki case involved a building in an amusement park housing pay toilets and was made from the roof of the building by means of a 'spy pipe' installed in the ceiling of the booths below. The basis of the court's decision that evidence thus obtained was inadmissible was, as further explained in Britt v. Superior Court, supra, 58 Cal.2d 469, 471, 24 Cal.Rptr. 849, 850, 374 P.2d 817, 818, that:

'Prior to making that observation the officer had never seen either Bielicki or his co-defendant and had no ground for believing that they were occupying the booths for anything other than a lawful purpose; rather, the observation was part of an apparently established police practice of secret surveillance of any and all occupants of the toilet booths.'

They held that the evidence thus obtained was 'the result of a general exploratory search conducted for the sole purpose of discovering evidence of guilt' and that, as such, it was violative of both federal and state constitutional guarantees.

The surveillance in the recent Britt case was of the men's restroom in a department store, and was made from a space between the ceiling of the men's restroom and the next floor above by means of two vents through which the...