People v. Newell

• Decision Date: 16 May 1979
• Docket Number: Cr. 17994,C
• Citation: 155 Cal.Rptr. 430,93 Cal.App.3d 29
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Donald James NEWELL et al., Defendants and Appellants. PEOPLE of the State of California, Plaintiff and Respondent, v. George Anthony HADZIMA, Jr., Defendant and Appellant. r. 18009.

Page 430

155 Cal.Rptr. 430

93 Cal.App.3d 29

PEOPLE of the State of California, Plaintiff and Respondent, v. Donald James NEWELL et al., Defendants and Appellants.

PEOPLE of the State of California, Plaintiff and Respondent, v. George Anthony HADZIMA, Jr., Defendant and Appellant.

Cr. 17994, Cr. 18009.

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

May 16, 1979.

Patrick H. Hetrick (court-appointed), San Rafael, for defendants and appellants Newell and Donohue.

Richard G. Sherman, Los Angeles, for defendant and appellant Hadzima.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Robert R. Granucci, Clifford K. Thompson, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

ELKINGTON, Associate Justice.

Defendants George Anthony Hadzima, Jr., Donald James Newell, and William Edward Donohue pleaded guilty to several counts of burglary following the superior court's denial of their Penal Code section 1538.5 motion to suppress evidence essential to their successful prosecution, and which led to their arrests and guilty pleas. Hadzima appeals from a judgment under which he was sentenced to state prison. Newell and Donohue, jointly represented by other counsel, appeal from orders granting probation conditioned upon six months of county jail confinement. We have consolidated the appeals for hearing and determination.

Our conclusion, for the reasons which now follow, is that the superior court did not err in denying the motion to suppress, and that the respective judgment and orders granting probation must be affirmed.

The relevant evidence is uncontroverted.

Defendant Hadzima was the proprietor of "Touch of Class," a clothing store in Thousand Oaks, Ventura County, California. In the early part of June 1977, he separately approached the proprietors of similar stores called "James Fine Men's Apparel," "Famous Fashions," and "Madd Hatter" of a Contra Costa County shopping center. He introduced himself under the fictitious name of Jim Toland, and expressed an interest in establishing a children's store in vacant premises available for leasing and situated between James Fine Men's Apparel and Madd Hatter. He was permitted to look through the several stores and, among other things, he inquired about the quality of the police security service. Soon thereafter, June 9, 1977, Hadzima leased the vacant store under the name of James Toland through a real estate broker. He paid a small deposit, $200, and was to take immediate possession of the premises after obtaining a key from the manager of James Fine Men's Apparel. Hadzima did not obtain the key.

Around 3 o'clock of the morning of Sunday, June 19, 1977, Hadzima, accompanied by defendants Newell and Donohue, drove a rented truck to the rear door of the vacant store. After backing the truck up to the door the men entered the premises. With tape and nails they fastened cloth and butcher paper across the premises so as to prevent observation of their activities from the outside. They then, with heavy tools, cut and sawed through the vacant store's partitions on either side, thus opening door-sized and -shaped holes into Famous Fashions, and Madd Hatter. They then cut a smaller hole in the wall between Madd Hatter and James Fine Men's Apparel. Merchandise valued at upwards of $75,000 was removed from the three stores.

The next morning Hadzima drove the rented truck to the back door of Touch of Class in Thousand Oaks. He explained to his employees "that a friend of his and wife were divorcing and that they were closing out a store and he had bought all of the merchandise from this couple." And he then instructed them to replace the tags on the clothing with Touch of Class tags.

During the afternoon of the day of Hadzima's criminal adventure the proprietress of Madd Hatter entered her closed store and observed the holes in its walls and its empty clothing racks. She called the police and an officer promptly arrived. He checked out the four then interconnected store areas for persons who might be hiding and found none. He then radioed the station "to try to find the owners of the men's store, the Famous Fashion, and also called for detectives . . . ."

A detective soon arrived and entered Madd Hatter, and Famous Fashions. He proceeded to the hole leading to the vacant store. Looking into those premises he could see much nearby debris, consisting of wallboard, plaster, and wood fragments as well as the material screening observation from the vacant store's frontage. Also, in plain view from Madd Hatter, he observed "three (paper) bags, empty rolls of duck (duct?) tape (and) nails" and nail cartons. In all other respects the vacant store was "empty."

The detective entered the vacant premises and proceeded to collect such items as appeared to him to have probable evidentiary or investigative value. Among the things he picked up were the three paper bags. He later testified: "I looked in them. I didn't see anything. Or, I didn't feel any weight. They appeared to be empty." He "felt that the perpetrators had either brought some tools (and tape and nails) in or had brought the bags into the vacant store." He thought the bags should "be processed for latent fingerprints," and he picked them up for that "purpose." Throughout this time the victimized tenants of the adjoining stores, and others, were in and out of the vacant premises. The day was Father's Day and the store owners and interested people who had gathered "were irritated" and "most of them wanted to go home to their families. (They) requested we come back the next day to complete it." The detective obliged them. He secured the premises, including the vacant store's back door. He might have heard that the empty space "was in possession of somebody" when he entered it, "but . . . probably didn't think of it at that time." As requested by the nearby tenants the detective returned to complete the on-site investigation the next day, Monday.

The detective had delivered the three bags to a police fingerprint processor. No usable prints were observed by him, but inside one of the otherwise empty bags was found a "K-Mart" sales receipt which was marked "MC," indicating a "Master Charge" purchase. Further investigation disclosed that defendant Newell had made the purchase, and that he, Hadzima, and Donohue were the perpetrators of the burglaries. And thereafter it was learned that Hadzima, at least, had been engaged in a similar criminal enterprise in Stanislaus County.

Defendants contend that the police committed three successive Fourth Amendment violations. The first, they say, was the entry upon the vacant premises in violation of the security and privacy rights of the shopping center's lessor, the lessee Hadzima, and vicariously (see Kaplan v. Superior Court (1971) 6 Cal.3d 150, 161, 98 Cal.Rptr. 649, 491 P.2d 1), the similar rights of Newell and Donohue. The second and third violations of such of their rights consisted of the seizure of the paper bags, and the subsequent "looking into them" while processing for fingerprints. There follows, they argue, a constitutional imperative that evidence of the bags and their fruits, the K-Mart sales slip and consequent discovery of their culpability, be suppressed.

We consider initially, defendants' claim of a "constitutional right" to have the incriminating fruits of the evidence seized by the detective suppressed. Such a Constitutional right does not exist. The rule requiring suppression of evidence in a proper case "is a Judicially created remedy designed to safeguard Fourth Amendment rights generally . . . . (P) . . . (it) has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons." (United States v. Calandra (1974) 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561 fn. omitted, emphasis added; and see United States v. Acosta (1974)501 F.2d 1330, 1336 (cert. den., 423 U.S. 891, 96 S.Ct. 188, 46 L.Ed.2d 122).) Nor is there such an absolute statutory right. Penal Code section 1538.5 is directed only toward implementation of such Fourth Amendment rights of an accused as he may have. (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 128, 74 Cal.Rptr. 294, 449 P.2d 230; and see People v. Manning (1973)33 Cal.App.3d 586, 599, 109 Cal.Rptr. 531; Kirby v. Superior Court (1970)8 Cal.App.3d 591, 597, 87 Cal.Rptr. 577.)

"(T)he constitutionality of a particular search is a question of reasonableness and depends on 'A balance between the public interest, and the individual's right to personal security free from arbitrary interference by law officers.' " (Mincey v. Arizona (1978) 437 U.S. 385, 406, 98 S.Ct. 2408, 2421, 57 L.Ed.2d 290, 309, conc. and dis. opn., emphasis added; United States v. Brignoni-Ponce (1975) 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607.)

The protection of the Fourth Amendment against unreasonable searches and seizures extends, of course, to business premises. (Go-Bart Co. v. United States (1931) 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374.) But nevertheless "business premises may . . . reasonably be inspected in many more situations than private homes, . . ." (See v. City of Seattle (1967) 387 U.S. 541, 545-546, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943.) Stricter requirements of reasonableness may apply where a dwelling is being searched. (See Davis v. United States (1946) 328 U.S. 582, 592-593, 66 S.Ct. 1256, 90 L.Ed. 1453.) "(P)rivate dwellings (are) ordinarily afforded the most stringent Fourth Amendment protection." (United States v. Martinez-Fuerte (1976) 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116.) "What may be unreasonable in a search of a man's house, may be entirely reasonable in a search of his place of business." (Giacona v. United States (1958) 257 F.2d 450, 456, fn. omitted (cert. den., 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104).) And it logically follows that a search of vacant...