People v. Roberts

Decision Date23 November 1956
Docket NumberCr. 5950
Citation47 Cal.2d 374,303 P.2d 721
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. James Harlan ROBERTS, Defendant and Appellant.

William John Scammon, Burlingame, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., and William M. Bennett, Deputy Atty. Gen., for respondent.

GIBSON, Chief Justice.

Defendant appeals from a judgment of conviction entered on a verdict of guilty of second degree burglary and from the order denying his motion for a new trial.

About 10 p. m. on August 5, 1955, a police officer observed defendant standing in front of the display window of the Wollmer Music Company in Burlingame. He saw defendant get in an automobile and drive away, and he noted the license number of the car. The next night the music company was burglarized, and merchandise including five table model radios was taken.

Burlingame officers learned that the car defendant had been seen driving was registered to Margaret Higgins, 771 Turk Street, San Francisco, and two of them went to that address in the morning of August 8th with a San Francisco police officer. They were informed that Margaret Higgins had moved to an apartment house, at 761 Turk Street, and they went there and interviewed the manager. She told them that Mrs. Higgins lived there, that a man, later identified as defendant, also lived in the same apartment and that he had not worked often and was sickly.

The officers went to the apartment and knocked on the door but received no response. They heard several moans or groans that sounded as if a person in the apartment were in distress, and the manager let them into the apartment at their request. They looked in the bedroom, bathroom and kitchen for the person they thought had made the sounds. No one was there. One of the officers, noticing a table model radio in the kitchen that 'stood right out as being a new radio,' picked it up, turned it over, and noted the serial number. The officers were not in the apartment more than two or three minutes. After leaving they ascertained that the serial number of the radio in the apartment was the same as that of one of the radios reported stolen. On the basis of this information a search warrant was obtained, and the officers returned later in the day, served the warrant on Mrs. Higgins and seized the radio. She testified that defendant had given her the radio the day after the burglary.

Defendant contends that the information upon which the search warrant was obtained was the product of an illegal search of the apartment and that the radio should therefore have been excluded from evidence. It is, of course, settled that if the conduct of the officers in entering or searching was unlawful, the search warrant subsequently obtained based on their observation in the apartment was invalid. See Silverthorne Lumber Co. v. U. S., 251 U.S. 385, 392, 40 S.Ct. 182, 64 L.Ed. 319 People v. Berger, 44 Cal.2d 459, 462, 282 P.2d 509.

The entry of the officers cannot be justified on the ground that they reasonably believed in good faith that the manager had authority to consent thereto. The situation here is entirely unlike that in People v. Gorg, 45 Cal.2d 776, 291 P.2d 469, and People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513. In both of those cases the premises searched were part of a private home, it was unclear whether the defendant was a guest, tenant or servant, and the officers had the consent of the owner who purported to have authority to authorize the search. In the present case Mrs. Higgins was a tenant of an apartment, and there is no evidence that the officers had reason to believe that the manager had authority to consent to their entry. The manager testified that she had neither authority nor permission from Mrs. Higgins to enter her apartment, and in admitting the officers she acted solely at their request on the assumption that they were entitled to enter. Moreover, although the burden is on the prosecution when it seeks to justify an entry on the ground that the officers reasonably believed in good faith that they had the consent of an authorized person, People v. Gorg, supra, 45 Cal.2d 776, 782, 291 P.2d 469, no attempt was made to establish such a belief, and it is clear from the record that the trial court did not base its decision on that ground.

The trial court found that the officers reasonably believed that some one inside the apartment was in distress and in need of assistance and that they entered for the purpose of giving aid. Necessity often justifies an action which would otherwise constitute a trespass, as where the act is prompted by the motive of preserving life or property and reasonably appears to the actor to be necessary for that purpose. Ploof v. Putnam, 81 Vt. 471, 71 A. 188, 189, 20 L.R.A.,N.S., 152; Metallic Compression Casting Company v. Fitchburg R. Co., 109 Mass. 277, 280-281; see Restatement, Torts, § 197; Prosser on Torts (2d ed.), 84, 97. The trial judge was fully aware that an entry obtained by trickery, stealth or subterfuge renders a search and seizure invalid. See Gouled v. U. S., 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647; Fraternal Order of Eagles v. U. S., 3 Cir., 57 F.2d 93. He stated, 'I recognize that this opens the way to subterfuge, and I think it rests with the trier of fact to see to it that * * * no subterfuge creeps in, but I don't think I am justified in making that finding here. * * * I think (the officers) were telling the truth and I so find * * *.'

Defendant contends that the evidence is insufficient to support a finding that the officers had reasonable cause to enter the apartment. The officers were informed that the man who was living in the apartment with Mrs. Higgins had not worked lately and that he was sickly. After they knocked on the door they heard moaning sounds as if a person inside the apartment was in distress. Unless the testimony of the officers is rejected, the evidence is clearly sufficient. Defendant argues, however, that their testimony is too improbable to be believed. He calls attention to the fact that no one was found in the room and points out that one of the...

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