People v. Green

• Decision Date: 02 August 1968
• Docket Number: Cr. 6147
• Citation: 70 Cal.Rptr. 647,264 Cal.App.2d 614
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Edward GREEN, Defendant and Appellant.

Page 647

70 Cal.Rptr. 647

264 Cal.App.2d 614

PEOPLE of the State of California, Plaintiff and Respondent, v. Edward GREEN, Defendant and Appellant.

Cr. 6147.

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

Aug. 2, 1968.

Rehearing Denied Aug. 30, 1968.

Hearing Denied Sept. 25, 1968.

Barry Mark Regar, San Francisco, under appointment of the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., Daniel J. Kremer, Deputy Atty. Gen., Sacramento, for respondent.

RATTIGAN, Associate Justice.

Counts I and III of an information charged defendant with having committed two separate burglaries (Pen.Code, § 459), counts II and IV with having received (id., § 496) property stolen in each of the respective burglaries. After a jury trial, defendant was acquitted of burglary but found guilty of receiving as charged in both counts II and IV. He appeals from the judgment of conviction, ¹ contending that the admission in evidence of certain items of stolen property was constitutional error because the items were obtained by the police in an illegal search.

The burglaries occurred when separate offices occupied by Erhard F. Koosmann and Charles W. Funaro, respectively, were forcibly entered during the night of January 16--17. Both offices were in the same building, which was located at 11350 Ventura Boulevard in the City of Los Angeles. Several items of furniture, office equipment and other property were stolen from each office, including a travel clock of Koosmann's and a stapler and a bag of 'pseudo gold nuggets' owned by Funaro.

As will appear, police officers recovered the nuggets in a search of defendant's person when he was arrested for the burglaries, the clock and stapler when they searched defendant's motel room immediately thereafter. At the trial, defendant objected to the admission of these items upon the grounds that both the arrest and the room search were illegal. The trial court thereupon heard extensive testimony concerning both, on Voir dire and outside the presence of the jury.

Officer Slattery, of the Los Angeles, Police Department, testified in the Voir dire proceedings as follows: He was assigned to investigate the burglaries. On January 25, he and his partner learned from Mrs. Dorothy Prossner that a man known to her as 'Bob' had offered to sell her two office machines. Mrs. Prossner had become suspicious because of the low selling price. Through a friend in the office equipment business, she had traced the machines to Koosmann through their serial numbers, and learned that they had been stolen in a burglary of his office. She had then returned the machines to 'Bob' and called the police. Mrs. Prossner, who was described in the testimony as an 'ordinary citizen,' had not previously been a police informant.

From the serial numbers given by Mrs. Prossner, Officer Slattery also recognized the machines as part of the loot from the Koosmann burglary. Mrs. Prossner directed him to 'Bob's' residence, where he knocked and was admitted by Mrs. Lynn Taylor. Entering, Slattery saw John Taylor, whom he knew. The officer also knew Taylor by the name of 'Bob Ward.' Slattery also saw in the Taylor residence two dictating machines of a type which had been stolen from Funaro's office. The officer then arrested both Taylors for burglary.

Interrogated at the scene of his arrest after he had been advised of his rights, Taylor said that he had bought the dictating machines and other office equipment from 'some fellow in a bar.' At the police station somewhat later, he stated that he wanted to tell the truth and that he had obtained the dictating machines from defendant. Taylor also told the police that he had seen several other items of property in defendant's motel room which, he felt, did not belong to defendant. He also quoted defendant as having said that he (defendant) had 'obtained' the property, including the items that Taylor had allegedly bought from him, from the building at 11350 Ventura Boulevard. Taylor had not previously been a police informant.

Taylor described defendant to the officers, told them where he worked, and pointed out his motel. The motel was located at 11480 Ventura Boulevard, which was in Los Angeles and in the immediate vicinity of the two burglaries. Defendant was not at the motel when Officer Slattery called there after interviewing Taylor. The motel manager also described defendant and identified his place of employment, which was an auto leasing agency in the City of Burbank. The officers, still on January 25, went to the Burbank address and waited until defendant arrived in an automobile.

Officer Slattery testified that 'I approached the vehicle and I identified myself as a police officer and asked the occupant if he was Eddie Green. He stated that he was. At this time I advised Mr. Green that he was under arrest for burglary and that he had certain constitutional rights. I advised him that he had the right to remain silent, that he had the right to have an attorney present at all times, and that anything he might say could be used against him in a subsequent prosecution.' ² Slattery asked defendant if he understood what he had been told; defendant said that he did.

Officer Slattery then searched defendant's person and found a pouch containing the 'pseudo gold nuggets' which had been stolen in the Funaro burglary, several other items not identified in the testimony, and a key. According to the officer, he then had two 'conversations' with defendant. One pertained to the nuggets. Slattery described the statements made by defendant in this conversation but, as will appear, his testimony concerning the entire conversation was later stricken. The second conversation related to a typewriter case which Slattery observed in the room where defendant went to get his jacket after the arrest. Slattery testified that there was a 'conversation' in this regard, but did not describe the statements made by defendant concerning the typewriter case. It was not shown that the case was connected with the burglaries under investigation.

Slattery then told defendant of the disclosures Taylor had made to the police. It does not appear that defendant made any reply. The officer next broached the subject of searching defendant's motel room. We observe at this point that there is no evidence that defendant had discussed the burglaries, as such, with Officer Slattery before they reached the subject of searching his motel room, and the evidence concerning any statements made by him before that point, and after receiving the Escobedo-Dorado warning, is both meager and uninformative.

Concerning the conversation which followed, Officer Slattery testified that 'I asked * * * defendant * * * if he would agree to a searching of his residence, if he had anything in his motel room that didn't belong to him. He stated that everything in the motel room belonged to him * * *. He stated, 'If I can go with you, you can search my motel room.' I asked him if the key that he had in his pocket was the key to his motel room * * *. It was laying on the seat of the police vehicle and I showed it to him and returned it to him.'

Officer Slattery further testified that he and his partner then drove defendant back to the motel at 11480 Ventura Boulevard in Los Angeles, where they arrived about one-half hour after the arrest in Burbank. According to the officer, they entered defendant's room after defendant himself had unlocked the door with the key which had been returned to him.

Defendant testified that a few questions were asked him when he was arrested, but that 'nothing was said about permission to search'; that the officers then took him directly to the motel; that the officers took the room key in the search of his person, but did not return it to him; and that one of them used the key to enter the motel room. He expressly denied that he had consented to the entry or to the search which followed.

The officers found some 37 items of property in the room, some of which--including Koosmann's clock and Funaro's stapler--had been stolen in the two burglaries. Contrary to his previous assertion that everything in the room was his, defendant told the police that the 37 items belonged to Bob Ward. Ward, he said, had asked him to keep the property. It was shown at the trial that the stolen items--except for the clock and the stapler--had been returned to their respective owners before the trial.

After hearing the Voir dire testimony, the trial court ruled that defendant's arrest was unlawful because Officer Slattery had not had a warrant for the arrest and, acting upon information received from an unreliable informant (Taylor), had not had reasonable cause for the arrest; granted defendant's motion to suppress as evidence the gold nuggets found in the search of his person; and struck Officer Slattery's testimony concerning what he and defendant had said in their conversation concerning the nuggets at the time of the arrest. The court further found, however, that defendant had voluntarily and validly consented to the search of his motel room, and denied similar motions addressed (1) to the evidence that he had consented and (2) to the clock and stapler found in the search.

In the presence of the jury, Officer Slattery repeated his testimony concerning defendant's consent to the room search and the search itself. Defendant denied, to the jury, that he had consented to the search, and again gave his version of the search and his acquisition of the property found in his room. Over his objection, the trial court then admitted the clock and stapler in evidence. At the trial's conclusion, the court submitted to the jury the question whether defendant had--in fact and voluntarily--consented to the room search, but did not inform the jurors, by instruction or otherwise, that defendant's arrest had been illegal. The jury's verdict of 'guilty' on the receiving counts indicates that it found against defendant on...