People v. Kahre, Cr. 16156

• Decision Date: 17 April 1970
• Docket Number: Cr. 16156
• Citation: 86 Cal.Rptr. 291,6 Cal.App.3d 680
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. William Edward KAHRE, Defendant and Appellant.

Page 291

86 Cal.Rptr. 291

6 Cal.App.3d 680

The PEOPLE of the State of California, Plaintiff and Respondent, v. William Edward KAHRE, Defendant and Appellant.

Cr. 16156.

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

April 17, 1970.

Kenneth Foley, Orange, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Michael A. Heaman, Deputy Atty. Gen., for plaintiff and respondent.

ROTH, Presiding Justice.

William Kahre and two others charged by information on five of seven separate counts, with conspiracy to commit bookmaking (Pen. Code, § 182), engaging in bookmaking (Pen. Code, § 337a, subd. 1), recording and registering bets (Pen. Code, § 337a, subd. 4), and accepting bets (Pen. Code, § 337a, subd. 6), was found guilty on counts 1, 2, 6 and 7. Proceedings were suspended and Kahre was placed on probation. He appeals from the 'judgment and sentence' thus rendered.

A preliminary hearing was held on January 26, 1968. Appellant and two codefendants were held to answer. Appearing on March 21, 1968 in response to the above information, the appellant and his codefendants waived trial by jury and submitted the case on the transcript of the preliminary hearing. No new evidence was offered. There is no question as to regularity of the waiver and the stipulated submission. Trial was held on June 21, 1968. Motions under Penal Code, §§ 995 and 1538.5 were denied.

On September 23, 1967, Officer Sullivan of the Los Angeles Police Department went to appellant's apartment in North Hollywood with a search warrant. Sullivan with several other officers, was acting pursuant to a plan to effect the arrests of appellant and his codefendants.

Without knocking or identifying himself, Officer Sullivan forced entry into appellant's apartment. As he entered, appellant was wiping the top of the kitchen table with a blue sponge. Officer Sullivan, stipulated to be an expert in bookmaking activities, testified that he believed appellant was in the act of wiping writings off the table top. On the table were copies of the National Daily Reporter and the J. K. Sports Journal with pencil notations.

While Officer Sullivan was in the apartment, he answered calls received on two telephones, and in response thereto, wrote down 'numerous' bets on football games and horse races. The persons calling in the bets identified themselves with various code names.

The information obtained by Sullivan, including the code names, was conveyed to his partners who then effected the arrests of the codefendants. Appellant does not question the sufficiency of the evidence to link his operations with the calls of his co-defendants which support hid conviction on the conspiracy charge.

Appellant's primary contention is that his motion to suppress the evidence was improperly denied because Officer Sullivan failed to comply with the requirements of Penal Code, section 1531 when executing a search warrant.

When asked why he had forced entry into the apartment without any announcement, Officer Sullivan testified: 'I had previous knowledge that * * * Kahre would be in the apartment. I have participated in arrest of * * * Kahre in the past, and I reviewed his past arrest record and in the past he has destroyed evidence upon entry by officers in bookmaking cases.' The following testimony then took place: BY MR. CARROLL: 'Q Officer, in what ways did he destroy evidence, to your knowledge at the time you entered? A In the past he has been arrested while sitting on a telephone relay spot, and in the past he has wiped formica table tops with wet rags or sponges on at least two occasions that I know of. Q So on this particular date you entered without announcing your presence? A That's correct. Q Had you discussed the propensities of this suspect with your fellow officers? A Yes, I had. Q Had all of you discussed the whole case together before the warrants were served? A Yes, we had.'

The knowledge of Officer Sullivan detailed above brings his failure to comply with the entry requirements of section 1531 squarely within the exception to those requirements which has been clearly articulated by our Supreme Court. In People v. De Santiago, 71 A.C. 18, 29, the court says at page 29, 76 Cal.Rptr. 809, at p. 815, 453 P.2d 353, at p. 359: 'Our decision in People v. Gastelo, Supra, 67 Cal.2d 586, 63 Cal.Rptr. 10, 432 P.2d 706, clearly forecloses the propriety of noncompliance with section...