People v. Prewitt, Cr. 6444

• Court: United States State Supreme Court (California)
• Writing for the Court: TRAYNOR; GIBSON
• Citation: 52 Cal.2d 330,341 P.2d 1
• Parties: PEOPLE of the State of California, Appellant, v. Henry Victor PREWITT, Respondent.
• Docket Number: Cr. 6444
• Decision Date: 19 June 1959

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341 P.2d 1 52 Cal.2d 330 PEOPLE of the State of California, Appellant,
v.
Henry Victor PREWITT, Respondent. Cr. 6444. Supreme Court of California, In Bank. June 19, 1959.

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[52 Cal.2d 333] Edmund G. Brown and Stanley Mosk, Attys. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Jere J. Sullivan, Lewis Watnick and Robert Lederman, Deputy Dist. Attys., Los Angeles, for appellant.

Albert Jack Chotiner and Russell E. Parsons, Beverly Hills, for respondent.

A. L. Wirin and Paul P. Selvin, Los Angeles, as amici curiae on behalf of respondent.

TRAYNOR, Justice.

The People appeal from an order granting defendant's motion to set aside an indictment charging defendant with bookmaking and with occupying an apartment for the purpose of recording bets. (Pen.Code, § 337a.) Defendant has moved to augment the record to present additional grounds for affirming the order.

The grand jury returned the indictment after hearing the following evidence: Officer Joseph Deiro testified that for the past three years he had been assigned to the Administrative Vice Division of the Los Angeles Police Department and during that time had made more than two hundred bookmaking arrests. He said that he was familiar with the various ways that bookmaking is carried on in Los Angeles.

A person wishing to make a small bet can place it with a 'hand book,' who is likely to be found in the vicinity of a bar or poolroom. One wishing to bet a larger sum can call an 'agent,' who will give him a telephone number to call. [52 Cal.2d 334] The bettor then telephones in his bets daily and settles his account with the agent about once a week.

No bookmaker can operate without a system of safely and permanently recording the bets, winnings, and losses. Therefore most bookmakers have one or more 'front offices' or 'relay spots.' At the front office a person answers the telephone and accepts bets placed by the 'hand books' and larger bettors. He records the bets on the top of a table, a slate, or on anything that can be written on and erased or destroyed easily, since front offices are often raided by the police.

The permanent records are kept in the 'back office.' Just before post time of each race the back office calls the front office and accepts all bets that have been received by the front office. The bets are then recorded on professional betting cards and the cards are placed in a rack. These cards contain, in code, the name of the bettor, the horse, the amount of the bet, and the result of the race.

Some time in late January or early February of 1958, Officer Deiro received a telephone call from a person who told him that a back office operation was being carried on at 248 South Western Avenue in Apartment 401. This person did not give his

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name, but Officer Deiro recognized his voice as that of a person who had twice previously given him information that had proved accurate and resulted in arrests. Although Officer Deiro did not know and never had known the name of this person, he considered his source of information reliable.

On February 20, 1958, acting upon the information received from the informer, Officer Deiro and two fellow officers went to the address on South Western Avenue. Officer Deiro obtained a key to Apartment 401 from the manager's office. The officers slowly unlocked the door to the apartment and opened it about two inches, at which point a night latch prevented further progress. Nothing but a bare wall could be observed through the opening. The officers then forced the latch and entered the apartment. Defendant was standing in the center of the room amid various bookmaking equipment. The officers arrested him and seized the bookmaking paraphernalia. They found a key to the apartment in defendant's pocket. Handwriting analysis indicated that defendant had prepared a number of betting cards found in a rack in the apartment.

The foregoing evidence before the grand jury was sufficient to support the indictment unless it was illegally obtained. [52 Cal.2d 335] 'If * * * illegally obtained evidence is the sole basis of an indictment or information, defendant is held without reasonable or probable cause; his motion to set aside the accusatory pleading should be granted by the court in which he is arraigned on such pleading; and if the motion is improperly denied an appellate court will grant prohibition to halt proceedings under the accusatory pleading.' People v. Valenti, 49 Cal.2d 199, 203, 316 P.2d 633, 635; see also Badillo v. Superior Court, 46 Cal.2d 269, 271, 294 P.2d 23; Priestly v. Superior Court, 50 Cal.2d 812, 815, 330 P.2d 39. In the Badillo case we pointed out that 'No problem is presented in applying this rule in cases involving searches and seizures in which the facts bearing on the legality of the search or seizure are undisputed and establish as a matter of law that the evidence is or is not admissible. In many cases, however, the evidence before the magistrate bearing on this issue may be in conflict or susceptible of conflicting inferences or consist only of the testimony of prosecution witnesses, and under these circumstances the court in ruling on a motion to set aside the information will frequently not be in a position to make a final determination as to the admissibility of the evidence. Accordingly, the information should not be set aside on the ground that essential evidence was illegally obtained if there is any substantial evidence or applicable presumption to support a contrary conclusion (citations), and in such cases the ultimate decision on admissibility can be made at the trial on the basis of all of the evidence bearing on the issue.' 46 Cal.2d at pages 271-272, 294 P.2d at page 24. The burden is on the defendant to raise the issue of illegally obtained evidence, and if the prosecution is by information, he must object to the introduction of the evidence before the magistrate if he seeks to have it excluded as a basis for holding him to answer. Robison v. Superior Court, 49 Cal.2d 186, 187, 316 P.2d 1. When the prosecution is by indictment, however, the defendant has no opportunity to object to the introduction of evidence before the grand jury, and accordingly, there can be no waiver of the right to challenge the legality of the evidence to support the indictment based on a failure to object to its introduction. Although he has no opportunity to...