People v. Hughes
| Decision Date | 20 April 1966 |
| Docket Number | Cr. 10403 |
| Citation | 241 Cal.App.2d 622,50 Cal.Rptr. 716 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. John HUGHES, Defendant and Appellant. |
Saul J. Bernard, Los Angeles, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Rose-Marie Gruenwald, Deputy Atty. Gen., Robert R. Francis, Deputy Atty. Gen., for plaintiff and respondent.
By an amended information, defendant was charged in three counts with bookmaking in violation of section 337a of the Penal Code, subdivisions 1, 2 and 6 respectively. Five prior felony convictions were also alleged. A jury trial was waived and the case was submitted on the transcript of the preliminary hearing. The court found defendant guilty as charged. No finding was made on the priors. Motions for new trial and probation were denied and defendant was sentenced on each count to serve one year in the county jail. The sentences were ordered to run concurrently. Defendant appeals from the judgment of conviction.
The facts are as follows: Defendant was arrested on January 25, 1964, in apartment No. 6, 2314 South Raymond Avenue, Los Angeles. On this date Officer Harold Hand of the Los Angeles Police Department arrived in the vicinity of apartment No. 6 and kept it under surveillance for approximately forty minutes. During this time the officer saw fourteen different persons enter and leave the apartment. Three of these persons were carrying papers which he recognized as National Daily Reporters. After making these observations, Officer Hand proceeded to apartment 3 which was located directly below apartment 6. He received the permission of the woman living in the apartment to set up a listening device to attempt to overhear conversations in apartment 6 above. Officer Hand stood on a chair and placed a listening device known as a 'Fargo amplifier' against the ceiling. No perforation or penetration of any kind was made in the ceiling. The officer listened to several conversations taking place in apartment 6. He heard sums of money mentioned and the names of horses running at Santa Anita. Officer Hand also heard a voice, which he recognized as that of defendant, say He also heard defendant say, The officer checked a National Daily Reporter which he had in his possession and discovered that there was a horse by the name of Kojo running in the fourth race at Santa Anita, and a horse named Delhi Maid running in the fifth race. The officer, an expert in the field of bookmaking, was of the opinion that a person upstairs by the name of Fields had made a wager with defendant of two dollars to win on a horse in the fourth race; that defendant accepted the wager.
After listening to these conversations, Officer Hand informed his fellow police officers by 'walkie-talkie' of what had transpired and asked them to meet him upstairs in front of apartment 6. Upon meeting the officers, Officer Hand knocked on the door which was opened by defendant. The officer told defendant,
After defendant was placed under arrest Officer Hand and the other officers conducted a search of the apartment. Ten men and women were seated in the apartment. The search turned up numerous booking paraphernalia which was later introduced into evidence at the trial over defendant's objection that it was acquired as the result of an illegal search.
Officer Hand indicated on cross-examination that he had met defendant approximately four weeks prior to the arrest in a parking lot directly to the rear of apartment. 6. The officer had received a complaint that bookmaking was taking place in the apartment. Between this first meeting and the time of the arrest the officer had talked to defendant on at least five other occasions. Defendant had invited the officer to his apartment on each occasion. There were always other people in the apartment at the time of the visits. Between visits the apartment was kept under observation by the officer at various times. The officers had no warrant authorizing arrest or search.
The principal contention urged by defendant is that the use of the listening device by the officers violated his rights under the Fourth Amendment of the United States Constitution and Article I, Section 19 of the California Constitution; that, without the evidence secured as the result of its use, the search and seizure were illegal because no reasonable cause for arrest existed.
Defendant recognizes that the present law in this state is contrary to his position that the use of the listening device was improper. In People v. Graff, 144 Cal.App.2d 199, 300 P.2d 837, a case quite similar to the instant one, the court, following Goldman v. United States (1942), 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322, held that it was not error for the court to admit evidence secured by means of a sound amplifying device placed against a party wall between one apartment occupied by the police and an apartment occupied by defendant. (See also People v. Anderson, 145 Cal.App.2d 201, 302 P.2d 358; People v. Rucker, 197 Cal.App.2d 18, 21--22, 17 Cal.Rptr. 98; People v....
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People v. Hohensee
...in the loft three feet from the loudspeaker was not an unauthorized physical intrusion into a private area. (See People v. Hughes, 241 Cal.App.2d 622, 50 Cal.Rptr. 716; People v. Rucker, 197 Cal.App.2d 18, 17 Cal.Rptr. 98; People v. Graff, 144 Cal.App.2d 199, 300 P.2d 837.) At trial, furthe......