People v. Gilkey

• Decision Date: 31 March 1970
• Docket Number: Cr. 6573
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Esperlee GILKEY, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 642

85 Cal.Rptr. 642

6 Cal.App.3d 183

The PEOPLE of the State of California, Plaintiff and Respondent, v. Esperlee GILKEY, Defendant and Appellant.

Cr. 6573.

Court of Appeal, First District, Division 4, California.

March 31, 1970.

Rehearing Denied April 30, 1970.

Hearing Denied June 10, 1970.

Erwin E. Adler, San Francisco, for appellant (under appointment of the Court of Appeal).

Thomas C. Lynch, Atty. Gen., Robert R. Granucci, Michael J. Kelly, Deputy Attys. Gen., San Francisco, for respondent.

DEVINE, Presiding Justice.

Appellant was found guilty of burglary (Pen.Code, § 459) by verdict of a jury. He appeals.

On the night of December 12, 1966, a warehouse was burglarized and 17 television sets were stolen. A guard at a nearby Christmas tree lot testified that he saw a yellow Econoline type panel truck parked next to the warehouse, and that the lights of the truck were turned off when a car approached. Then the truck drove away. The owner of a truck rental agency testified that he rented a yellow Econoline truck to appellant, Gilkey, on the afternoon of December 12, 1966. Appellant told the lessor that he needed the truck to move some furniture. A technician of the Oakland Police Department testified that he took plaster casts of tire tracks found behind the warehouse; and a criminalist testified that she made tire impressions from the truck which had been rented to appellant and concluded that the tires had the same design features. The rented yellow truck was returned to the parking lot of the rental agency early on the morning of December 13.

Brand new television sets, later shown to have been taken in the burglary, were found in appellant's garage, under circumstances which are described below in the discussion of appellant's point that there was an illegal seizure.

A girl friend of appellant testified that he telephoned her from jail and told her to knock in the boards of the garage and to take the things out because it would rain. On cross-examination, she said that the only thing appellant asked her to remove was his test equipment. She had had an argument with appellant about the rental of a truck to move certain furniture of hers.

A jailer testified that he heard the telephone conversation between appellant and the girl friend, in which appellant said: 'Remember the truck I rented to move you? Well, they say it was used for something else'; and, 'Move the stuff in my garage so it will not get wet. You know it is worth plenty.' The jailer did not remember the words 'test equipment.' but just 'move my stuff.'

Appellant did not testify. He produced an alibi witness, a woman who testified that he had spent the night of December 12 at her home. On cross-examination, this testimony was badly damaged, if not destroyed. The witness was confronted with a statement made to the police, in part of which she said that appellant had left her house on December 11 and had not returned until December 15. She said she did not remember having said this, and later, when asked the date of Gilkey's next visit following December 11, replied that she did not remember.

Legality of the Search

Appellant's first point is that the search of his garage, for which there was no search warrant, was illegal because it was not contemporaneous with or incident to his arrest. The People respond by citing the proposition that a parole officer has the right to search his parolee's premises without a warrant or a showing of probable cause. The principle upon which the People rely has been announced in several cases: People v. Limon, 255 Cal.App.2d 519, 522, 63 Cal.Rptr. 91; People v. West, 253 Cal.App.2d 348, 354, 61 Cal.Rptr. 216; People v. Quilon, 245 Cal.App.2d 624, 627, 54 Cal.Rptr. 294; People v. Gastelum, 237 Cal.App.2d 205, 207, 46 Cal.Rptr. 743; People v. Hernandez, 229 Cal.App.2d 143, 149, 40 Cal.Rptr. 100, cert. den. 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725; People v. Robarge, 151 Cal.App.2d 660, 665--666, 312 P.2d 70; People v. Triche, 148 Cal.App.2d 198, 202--203, 306 P.2d 616; People v. Denne, 141 Cal.App.2d 499, 297 P.2d 451. In some of these cases, regular police officers had participated to greater or less degree in the searches. The holdings are based on the theory of Custodia legis, which recognizes that a parolee is still under the control and responsibility of his parole officer. Although he is outside the prison walls, the parolee is technically still in custody. (People v. Quilon, Supra, 245 Cal.App.2d at p. 627, 54 Cal.Rptr. 294.) ¹

On the other hand, the fact that a person is on parole does not in itself justify search by peace officers other than parole officers. (People v. Gallegos, 62 Cal.2d 176, 41 Cal.Rptr. 590, 397 P.2d 174; People v. Quilon, Supra, 245 Cal.App.2d at p. 627, 54 Cal.Rptr. 294.) Recently, the Supreme Court has expressed the applicable principles in In re Martinez, 1 Cal.3d 641, 647, fn. 6, 83 Cal.Rptr. 382, 386, 463 P.2d 734, 738: 'Searches by parole officers pursuant to their duties, just as other administrative searches (see Camara v. Municipal Court (1967) 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930) are subject to the broad reasonableness requirement of the Fourth Amendment. (See, e.g., People v. Langella (Sup.Ct.1963) 41 Misc.2d 65, 244 N.Y.S.2d 802, 805; Martin v. United States (4th Cir. 1950) 183 F.2d 436, 439, cert. den. 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654; cf. Terry v. Ohio (1968) 392 U.S. 1, 16--20, 88 S.Ct. 1868, 20 L.Ed.2d 889, 902--905.) The conditional nature of a parolee's freedom may result in some diminution of his reasonable expectation of privacy and thus may render some intrusions by parole officers 'reasonable' even when the information relied on by the parole officers does not reach the traditional level of 'probable cause.' A diminution of Fourth Amendment protection, however, can be justified only to the extent actually necessitated by the legitimate demands of the operation of the parole process. (See United States v. Lewis (S.D.N.Y.1967) 274 F.Supp. 184, 190; cf. Camara v. Municipal Court, Supra, 387 U.S. 523, 534--539, 87 S.Ct. 1727, 18 L.Ed.2d 930, 938--941; Note, Parole Status and the Privilege Concept, 1969 Duke L.J. 139, 145, fn. 19.) When a police officer is not aware that a suspect is on parole, or is not investigating a parole violation, an intrusion into the parolee's privacy cannot be properly justified by the needs of the parole system. (See also United States v. Hallman (3d Cir. 1966) 365 F.2d 289 (parole officer was acting merely as 'agent, tool or device' of arresting police officers and thus his search of parolee without probable cause was illegal).)'

We proceed to give facts relating to the search and to discuss them in the light of the rules that 1) the search of a parolee's premises by a parole officer need not satisfy completely the usual test of probable cause, and 2) the search must have been necessitated by the legitimate demands of the parole process. We conclude that there was good cause for the search, even though the cause might not have been sufficient in the case of a non-parolee, and that the search was made necessary by legitimate demands of the parole process.

On January 5, 1967, Barton Benderoff, appellant's parole officer, was informed by the Oakland Police Department that they wished to question appellant with regard to a burglary. Benderoff had visited appellant at his home at least a dozen times. He had been in the garage which appellant was using as a workshop for the repair of television and radio equipment. He did not take appellant into custody upon his arrival at the garage, but he did ask appellant to come with him to the police and told appellant that 'it was voluntary, if he wanted to make a statement or not.'

Before the two departed for the police station, Benderoff had observed that there was a 1967 (that is, the latest model) Pontiac Grand Prix automobile of the value of $5,000 on the driveway of appellant's residence. The officer did not see how appellant could manage this on his salary, which was about $100 a week. It is to be observed that appellant's parole had been violated for shoplifting in 1965 and that he had served county jail time, following which he had been reinstated on parole. Thus, not only had the parole officer knowledge that appellant had not theretofore lived up to the terms of parole, having been guilty of thievery, but also, he had information which would show that appellant's time for earning had been limited. Furthermore, appellant had not informed the parole officer, as he was required to do, of his purchase of the expensive vehicle. The sudden enrichment of appellant naturally was a subject of interest to the officer, particularly in view of the call he had received from the police.

The interrogation at the police station took about two hours. The parole officer asked questions during the interview. Benderoff believed that appellant was lying to the police officers in matters relating to the truck rental, removing of furniture, and the argument in which appellant's girl friend took part. Benderoff found appellant's whole story to be confused. He took his parolee into custody. Although the testimony during the Voir dire of the parole officer was brief, we find it to be ample for the judge to have concluded that the officer took an intelligent and purposeful part in the proceeding of interrogation, and that he came to his judgment about appellant's prevarications by his own reasoning. There is no suggestion that during the Voir dire or during the motion to exclude evidence, the officer was prompted by the police officers to come to his conclusion or to make the arrest.

Although there is no direct evidence in the record that the theft of television sets was made known to Benderoff, it is incredible that the parole officer would not be informed that his parolee was suspected of stealing television sets. Television and stereo sets were the only things taken in...