People v. Neal

• Decision Date: 25 May 1960
• Docket Number: Cr. 7021
• Citation: 181 Cal.App.2d 304,5 Cal.Rptr. 241
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie Mae NEAL, Defendant and Appellant.

Page 241

5 Cal.Rptr. 241

181 Cal.App.2d 304

PEOPLE of the State of California, Plaintiff and Respondent, v. Eddie Mae NEAL, Defendant and Appellant.

Cr. 7021.

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

May 25, 1960.

Walter L. Gordon, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., S. Clark Moore, Deputy Atty. Gen., for respondent.

ASHBURN, Justice.

Defendant was convicted of two counts of violation of § 337a, Penal Code, i. e. bookmaking. She was sentenced to the county jail on each count, sentences to run concurrently, same suspended and probation granted. Appeal was taken from the judgment and an order denying her motion for new trial.

Appellant's counsel argues that the police searched her apartment without probable cause and without her consent; also that it was error to receive in evidence certain betting paraphernalia then seized.

The vital question is that of consent, which is an issue of fact where there is conflicting substantial evidence (People v Gorg, 45 Cal.2d 776, 782-783, 291 P.2d 469; People v. Smith, 141 Cal.App.2d 399, 402, 296 P.2d 913). We are confronted here with a conflict such as to convince us that the trial judge's findings of consent must be upheld.

The contention of the respondent is that appellant opened the door in response to the officers' ringing of the door bell and when they showed a police badge and said they would like to talk to her, she said 'Okay,' stepped back and opened the door wider in an implied invitation for them to enter; that they entered and Sergeant Walters looked through the dining room (which they first entered) into the kitchen and there saw familiar bookmaking paraphernalia. If this was the whole story there was no illegality in the seizure which was them made. People v. Roberts, 47 Cal.2d 374, 379-380, 303 P.2d 721.

Before arrival at the apartment building in which defendant lived the officers had only her telephone number and address; they had not staked out the premises not seen any suspicious activities around it; did not know defendant and had no probable cause for a search of her residence. Counsel stresses the fact that no one specificially said 'may I come in' or 'come in' or 'may I search.' These are but elements in the factual problem whether defendant consented to the entry of the police into her dining room, and the court was justified in drawing the inference that her stepping back and opening the door wider when the police said they wanted to talk to her was an invitation as well consent.

A more serious problem is presented by the argument that the police entered through a ruse, pretending they merely wanted to talk to defendant while entertaining the intention to search the apartment; that they engaged in no conversation but walked across the dining room to a spot from which they could see the kitchen table and the damning evidence upon it. This contention is based partly upon Sergeant Walters' cross-examination: 'Q. By Mr. Gordon: Now, when you went to this apartment and asked if you could talk to this lady, you actually wanted to search the apartment; didn't you? Now, Officer, I notice you are smiling. May the record indicate he is smiling, your Honor? The Court: I wasn't looking at him. Yes, I am looking now. He is smiling. The record may so show. * * * The Witness: It is the same as any other investigation.' Our Supreme Court said, in People v. Roberts, supra, 47 Cal.2d 374-378, 303 P.2d 721, 723, that 'an entry obtained by trickery, stealth or subterfuge renders a search and seizure invalid,' citing Gouled v. United States, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647 and Fraternal Order of Eagles, etc. v. United States, 3 Cir., 57 F.2d 93. To the same effect, see, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668, 678; United States v. Bush, D.C. Tenn., 172 F.Supp. 818, 821-825; United States v. Bush, D.C.Tenn., 136 F.Supp. 490, 492; United States v. Mitchneck, D.C.Pa., 2 F.Supp. 225, 226. Moreover, the recognized right fo police 'to seek interviews right of police 'to seek interviews them at their homes for such purposes' (People v. Michael, 45 Cal.2d 751, 754, 290 P.2d 852, 854; People v. Martin, 45 Cal.2d 755, 761, 290 P.2d 855) does not connote a privilege of making a search without developing adequate cause. Cf. People v. Simon, 45 Cal.2d 645, 650, 290 P.2d 531; People v. Roberts, supra, 47 Cal.2d 374, 378, 303 P.2d 721; People v. Harvey, 142 Cal.App.2d 728, 731, 299 P.2d 310; People v. Mills, 148 Cal.App.2d 392, 402, 306 P.2d 1005; People v. Schaumloffel, 53 Cal.2d 96, 346 P.2d 393.

In examining the applicability of these authorities at bar it is incumbent upon us to recognize another pertinent principle, that the trier of fact 'could have accepted portions of defendant's testimony and statements, disbelieved other portions.' People v. Matlock, 51 Cal.2d 682, 695, 336 P.2d 505, 511. It is true in criminal as well as civil cases that ...