People v. Nadell

• Citation: 100 Cal.Rptr. 444,23 Cal.App.3d 746
• Decision Date: 24 February 1972
• Docket Number: Cr. 20189
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Benjamin NADELL, Defendant and Appellant.

Page 444

100 Cal.Rptr. 444

23 Cal.App.3d 746

The PEOPLE, Plaintiff and Respondent, v. Joseph Benjamin NADELL, Defendant and Appellant.

Cr. 20189.

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

Feb. 24, 1972.

Lewis, Gershan, Castillo & Song, Los Angeles, for defendant and appellant.

Evelle J. Younger, Atty. Gen., William E. James, Asst. Atty. Gen., and Douglas B. Noble, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant Nadell was charged in counts I and V with bookmaking (Pen.Code, § 337a, subd. 1), in counts II and VI with keeping a place for recording bets (Pen.Code, § 337a, subd. 2), in counts III and VII with registering bets (Pen.Code, § 337a, subd. 4), and in counts IV and VIII with making or accepting bets (Pen.Code, § 337a, subd. 6). Defendant pled not guilty to all counts and his motion under section 1538.5 was denied. In a non-jury trial, he was found guilty on counts I and V (bookmaking) and not guilty on the other counts. A jail sentence was imposed, execution was suspended and he was granted probation. He has appealed from the judgment (order granting probation) and from the order denying his motion to suppress. We dismiss the appeal from the nonappealable order and for the reasons set forth below, reverse the judgment.

Officer Danko testified that he conducted an investigation of bookmaking in 1970. He obtained search warrants for a number of persons and places and the resultant searches produced much paraphernalia used in bookmaking operations. Defendant and his apartment were among the objects and persons specified in the warrant. Defendant was present at the time of the search and the search produced two bookmaking records for a sports betting organization, including a recordation of wagers for football games, and the J. K. Sports Journal listing indicating point spreads of various games. The handwriting on the recordation of wagers matched defendant's handwriting.

The search warrant is based on the affidavit of Officer Danko in which he alleged the following in part:

'On the date of March 20, 1970, your affiant (received information from) a confidential reliable informant, hereinafter designated as Informant #1, that a person known as 'Steve' was engaging in bookmaking, and working as a back office clerk for a large bookmaking organization in Los Angeles. He said that the organization was comprised of a number of known bookmakers in Los Angeles County, including Fred Sica, Chris Patti, Boris Feldman, Al Glassman, Rudy Antonelli, Joe Nadell and Robert Benjamin. He said that 'Steve' had told him that he had been arrested once for bookmaking on an occasion when he was working a phone spot receiving wagers from bettors; that at that time he was working for a bookmaker known as Antone Kaleel, and at the time of his arrest he was in bed wearing only his shorts.

'Armed with this information, your affiant began a search of records of both the Los Angeles Police Department and the Los Angeles County Sheriffs, and discovered the following information: that Antone Kaleel was listed in official police department files as an associate of Stephen Lewis Kahn. Los Angeles County Sheriffs Department records show that Stephen Lewis Kahn was arrested on April 19, 1968, for bookmaking, a violation of Section 337(a) of the Penal Code, and that this was his only arrest for bookmaking. Your affiant interviewed the arresting Sheriffs deputies. Sheriffs Deputy Zimbel told your affiant that he remembered the arrest of Stephen Lewis Kahn on April 19, 1968; that he entered the residence first and observed Kahn in bed dressed in only his shorts.

'Your affiant considers the abovementioned confidential informant as reliable based upon his past experience with the informant and his belief in his reliability is also founded upon the information presently received from this informant when considered and evaluated in the context of all the facts and circumstances set forth in this Affidavit. Information previously given by him within the last year has resulted in four arrests for bookmaking; charges were filed on all four persons, and all have been convicted.

'On April 2, 1970, your affiant received information from another confidential informant, hereinafter designated as Informant #2, and believed by your affiant to be reliable, that Stephen Lewis Kahn is personally known to him to be presently engaging in bookmaking, and that Kahn speaks with a slight speech impediment and he occasionally stammers when using certain words.'

Affiant alleges he had Kahn under surveillance when Kahn left a Gardena card club, and staking out Sica, Patti and Swoboda in March.

The affidavit continues:

'Informant #2 told your affiant that Kahn is known to him to be the coordinator and back office clerk for a large Los Angeles bookmaking organization and that Kahn spends a lot of time going around town settling disputes between bettors and bookmakers and conducting financial transactions. He stated that bookmakers Fred Sica, Chris Patti, Al Glassman, Joe Nadell, and Rudy Antonelli use Kahn's services and that Kahn is paid by them to coordinate their bookmaking activities and either bring them money or get money from them to either pay to or collect from bettors.'

The affidavit then alleges facts indicating informant #2's reliability. Certain corroborative matter against Kahn was alleged:

'Police Sergeant Robert Harris positioned himself in a location to overhear conversation between Kahn and the other man and reported to affiant that he had heard the unknown male state to Kahn, 'I have a $35 bettor coming on.'""'

On page 6 of the affidavit, affiant indicates that informant #3 told the officer what number to call to place bets. Facts showing informant #3's reliability are alleged. Informant #3 described in great detail the bookmaking activity of Sica, Patti, Benjamin and Glassman. Nadell was not mentioned. In September, the affiant staked out Sica and Kahn and watched the two exchange money in a gas station from a wrapped package. Kahn went to the Hollywood Park and to the Turf Club there and gave ten $100 bills to Glassman. On September 22, 1970, the affiant received further information related to Kahn's bookmaking and during the world series they observed Benjamin and Kahn. In October the police observed Benjamin Stop at many locations in one day on several occasions. Several times in November the affiant observed Kahn driving in circuitous routes stopping at various places. Informant #3 described Kahn's bookmaking activities in some detail on pages 12 and 13 of the affidavit:

'On November 17, 1970, at 9:00 a.m., affiant observed Mr. Kahn went to 15440 Sherman Way, after taking a circuitous route and went to apartment No. 315 at that location. This apartment is personally known to your affiant to be rented by Joe Nadell, and was given by Nadell as his residence address when he applied for his drivers license. Kahn left after 15 minutes at that location.'

After describing Kahn's connection with Antonelli, Nadell is mentioned once more:

'Informant #2 told your affiant that Joe Nadell had recently gone to Rudy Antonelli and made a deal to have Rudy Antonelli's bookmaking organization service or accept all of his bettors if Antonelli would pay off monies presently owing the bettors from a defunct bookmaking organization and that Antonelli agreed. This information was related to Informant #2, according to him, by a close associate of Rudy Antonelli and Joe Nadell.'

The affiant then states that he received information that a police officer saw Patti and Scountzos drive from Patti's residence to a restaurant, where they met Benjamin. The officer observed a J.K. Sports Journal in plain view in the car. Also Patti had thrown into the trash can records of wagers with bettors.

The affiant stated that, based on his expert opinion, Rudy Antonelli, Chris Patti, Fred Sica, Al Glassman, Joe Nadell and Robert Benjamin were involved in a bookmaking operation.

A handwritten page was inserted in the affidavit. It reads as follows:

'Your affiant has in the past observed Joe Nadell meeting with a known bookmaker and exchanging money. The bookmaker was subsequently arrested for bookmaking. Your affiant has interviewed citizens who were chosen to testify before a grand jury investigating the bookmaking activities of Joe Nadell and other bookmakers in Los Angeles County. The citizens stated Nadell had introduced them to a bookmaker for the purpose of wagering on sporting events. Nadell supplied these citizens with telephone numbers where they could place bets on sporting events and in fact did use the phones for such activity. Nadell also paid and collected sums of monies owed to bookmakers from the same citizens.

'Your affiant on a previous bookmaking investigation recovered betting records containing bettors names, addresses, limits of bets and a code name Moody on 3 5 cards. Upon interviewing one of the bettors he stated he had bet with a bookmaker, did have a limit, which corresponded with the limit on the 3 5 cards and paid or rec'd money from Joe Nadell who had a code name of Moody.

'Your affiant upon interviewing this bettor gave no indication that your affiant had evidence of the limits of his bets and the code name of Moody for Nadell.

'All of the above happened within the last three years.'

Defendant's argument is that the affidavit in support of the search warrant fails to establish sufficient probable cause to search defendant or his home.

I

Defendant first argues that 'a search warrant designating more than one person or place to be searched, must contain sufficient probable cause to justify its issuance as to each person or place named therein,' and its established sufficiency as to the other defendants is not necessarily enough to show its sufficiency as to defendant. We agree. In determining the sufficiency of evidence for issuance of a search warrant, the test of probable...