People v. Lurie

• Decision Date: 18 December 1967
• Docket Number: Cr. 12981
• Citation: 64 Cal.Rptr. 637,257 Cal.App.2d 98
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Marshall Roy LURIE, Defendant and Appellant.

Page 637

64 Cal.Rptr. 637

257 Cal.App.2d 98

The PEOPLE of the State of California, Plaintiff and Respondent, v. Marshall Roy LURIE, Defendant and Appellant.

Cr. 12981.

Court of Appeal, Second District, Division 1, California.

Dec. 18, 1967.

Hearing Denied Feb. 14, 1968.

Sherman & Sturman and Richard G. Sherman, Beverly Hills, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Howard J. Bechefsky, Deputy Atty. Gen., for respondent.

LILLIE, Associate Justice.

D'Allesandro, Lynn Jenkins and Lurie were found guilty of second degree burglary (§ 459, Pen.Code) and grand theft (§ 487, subd. 1, Pen.Code); the same charges were dismissed as to Jenkins on her motion (§ 995, Pen.Code). Defendants were sentenced to the state prison on each count but sentence on the grand theft conviction was stayed pending service of sentence on the burglary, the stay thereafter to become permanent. This appeal involves Lurie only.

On March 23, 1965, the apartment of Sylvia Elkins was forcibly entered and four furs and two sweaters worth $9,350 were stolen.

Appellant's main contention is that there was no probable cause for arrest and that the evidence, the result of an illegal search and seizure, was inadmissible. In the absence of a warrant a peace officer may arrest a person whenever he had reasonable cause to believe that the person arrested has committed a felony. (§ 836, subd. 3, Pen.Code; People v. Torres, 56 Cal.2d 864, 866, 17 Cal.Rptr. 495, 366 P.2d 823; People v. Fischer, 49 Cal.2d 442, 446, 317 P.2d 967; People v. Ingle, 53 Cal.2d 407, 412, 2 Cal.Rptr. 14, 348 P.2d 577; People v. Schader, 62 Cal.2d 716, 722, 44 Cal.Rptr. 193, 401 P.2d 665.) 'To constitute probable cause for arrest, a state of facts must be known to the officer that would lead a man of ordinary care and prudence to believe, or to entertain a strong suspicion, that the person arrested is guilty.' (People v. Hillery, 65 Cal.2d 795, 803, 56 Cal.Rptr. 280, 285, 423 P.2d 208, 213; People v. Cockrell, 63 Cal.2d 659, 665, 47 Cal.Rptr. 788, 408 P.2d 116; People v. Stewart, 62 Cal.2d 571, 577--578, 43 Cal.Rptr. 201, 400 P.2d 97; Jackson v. Superior Court, 62 Cal.2d 521, 525, 42 Cal.Rptr. 838, 399 P.2d 374.) 'No exact formula exists for determining reasonable cause, and each case must be decided on the facts and circumstances presented to the officers at the time they were required to act. (People v. Ingle, supra, 53 Cal.2d at p. 412(2), 2 Cal.Rptr. 14; People v. Ferguson, 214 Cal.App.2d 772, 775(4), 29 Cal.Rptr. 691.)' (People v. Ross, 67 Cal.2d ---, --- - ---, 60 Cal.Rptr. 254, 259, 429 P.2d 606, 661.) ^a With these rules in mind we review the information in the possession of Sergeant Evans at the time the defendants were arrested.

Sergeant Evans, detective, Los Angeles Police Department, for 13 or 14 years a robbery investigator, had extensive experience with methods of operations of particular criminals as related to particular crimes. On March 27, 1965, he and Sergeant Calvert began an investigation of a half million dollar robbery at I. Magnin Co., in which expensive jewelry was taken. He knew from experience that the robbery had been perpetrated by professionals because of the merchandise selected, they used masks and threw a smoke bomb into the store and the job was well planned; he believed that this kind of robbery, its size and the modus operandi, pointed to a professional job most likely by someone from out of town. Thus, the officers checked local criminal records and those of other law enforcement agencies, and all newcomers to the city which revealed that defendants, from Chicago, had been in Los Angeles for only eleven days. Defendants' records shows that they had been arrested for implication in other robbery situations in Chicago and New York, affiliated with gangs in the east and involved in gang-type activities. D'Allesandro had been arrested in Los Angeles in 1952. An investigating team showed mug shots of defendants to I. Magnin employees who identified them as persons they had seen in the store 'just prior to the robbery, casing the store, which was the day before the robbery.' The team described defendant's activity as 'casing'; and Sergeant Evans knew from the nature of the store robbery that it had been 'cased.' The foregoing information evaluated in the light of his long experience in cases of this kind led Sergeant Evans to suspect defendants in connection with the I. Magnin robbery; thus on March 29, 1965, on a hunch that defendants would be leaving town, he and his partner went to the Los Angeles International Airport. For four hours they checked flights to the east coast working all of the terminals. Sergeant Evans testified that they were about to give up when around 4:10 p.m., while in the TWA terminal they observed defendants, whom they recognized from mug shots in their possession, and Miss Jenkins walk to the gate, present tickets to the agent and go toward a plane bound for New York. At that time the officers stepped out, identified themselves, and arrested all three.

Sergeant Evans informed D'Allesandro of his constitutional rights; the latter stated that he understood them and knew what they were; he said he was going to New York. Asked if he had any tickets on him, D'Allesandro said, 'Yes, I do.', and gave Sergeant Evans three envelopes. Two tickets were in the names of Mr. and Mrs. M. Carter. On one envelope were stapled three luggage claim checks; one claim check was stapled on Mrs. Carter's ticket and four on Mr. Carter's ticket. Sergeant Evans handed the claim checks to the agent who retrieved eight pieces of luggage which had not yet been put on the plane. The luggage was placed in the trunk of the police vehicle. On the way to the Wilshire Station, Sergeant Evans repeated the statement of constitutional rights to D'Llesandro, Jenkins and Lurie. When they arrived at the station, Sergeant Evans opened the trunk and asked each defendant to identify his piece of luggage; Miss Jenkins pointed to three green pieces, Lurie pointed to three blue pieces, and D'Allesandro pointed to a black leather suitcase. No one claimed the eighth piece of luggage; each of the three defendants denied any knowledge of it. However the claim check for the eighth suitcase was stapled to the ticket made out in the name of Mrs. M. Carter. It was opened and in it the officers found Mrs. Elkins' furs, other furs, a pair of ladies' capris and shirts with a 'Dell' laundry marking; D'Allesandro first denied, then admitted that the shirts belonged to him.

D'Allesandro stated he traveled under the name of Gary Ryder; Lurie said he frequently used the name Carter and Miss Jenkins admitted she lived with Lurie and also used the name Carter. All three were bound for New York. Mr. Paschke, agent for TWA, testified he had reissued tickets, previously issued in Chicago, to Lurie and Miss Jenkins (Mr. and Mrs. M. Carter) to New York. Lurie and Miss Jenkins told the officers that they had a misdemeanor court appearance on March 30, 1965; D'Allesandro said he was going to New York, then Delaware to serve ten months for obtaining money under false pretenses.

Defendants neither took the stand nor offered a defense.

The foregoing demonstrates not only superb police work but an emergency in which the officers were required to act without delay. Based upon his experience, the modus operandi of the I. Magnin robbery, the information received from official sources (People v. Ross, 67 Cal.2d ---, ---, 60 Cal.Rptr. 254, 429 P.2d 606; ^b People v. Estrada, 234 Cal.App.2d 136, 152, 44 Cal.Rptr. 165, 11 A.L.R.3d 1307) and the identification by store employees of defendants as having 'cased' the store the day before the robbery, Sergeant Evans had a strong suspicion that defendants were implicated in the I. Magnin job; then upon finding them in the process of fleeing the jurisdiction he formed the belief that they had participated in the store robbery. He apprehended them in the course of walking toward a plane bound for New York; within minutes they would have been out of the jurisdiction, perhaps lost forever, with what Sergeant Evans then believed to be the stolen jewelry. About to board the plane, defendants placed the officers in a position affording them no time for deliberation or to obtain a warrant; further, defendants' impending departure from the jurisdiction ended Sergeant Evans' opportunity...