People v. Sanders

Decision Date24 February 1956
Docket NumberCr. 5763
Citation294 P.2d 10,46 Cal.2d 247
CourtCalifornia Supreme Court
PartiesThe PEOPLE of the State of California, Plaintiff and Appellant, v. James W. SANDERS, Defendant and Respondent.

Edmund G. Brown, Atty. Gen., William E. James, Deputy Atty. Gen., S. Ernest Roll, Dist. Atty., Jere J. Sullivan and Lewis Watnick, Deputy Dist, Attys., Los Angeles, for appellant.

G. Vernon Brumbaugh, Los Angeles, for respondent.

A. L. Wirin and Fred Okrand, Los Angeles, amici curiae on behalf of respondent.

TRAYNOR, Justice.

By information defendant was charged with keeping and occupying a business building for the purpose of horse-race bookmaking in violation of Penal Code section 337a, subdivision 2. Defendant was arrested at his place of business, and evidence taken by the officers from defendant's person and the premises was introduced at the preliminary hearing. It consisted of keys to the premises that were in defendant's possession, betting markers, owe sheets, and scratch sheets. One of the officers testified that at the time of the arrest he answered the telephone, and a female voice said, 'This is Maude. Give me your answer on Devil's Sound in the 2d race at Hialeah.' Five or six other callers asked for Jimmy, and when the officer told them that Jimmy had stepped out, they hung up. The officers were not questioned at the preliminary hearing with respect to facts bearing on the legality of their search or the lawfulness of the arrest. When, however, defendant moved to set the information aside on the ground that the evidence was illegally obtained, the parties stipulated to the following additional facts: The officers went to defendant's place of business, a phonograph record shop, in the morning in search of another man they had arrested the day before at the record shop for bookmaking. They entered the front room of the shop, which was open to the public and used to display records. No one was in the front room, and the officers went to a door that separated it from a second room behind, which was not open to the public. There was a large hole cut in this door, and the officers looked through the hole and saw defendant, who was known to them personally as a bookmaker, in the second room standing with a pencil in his hand. On a table in front of him they observed some pads of paper that appeared to be 'the kind and character of pads of paper used in that area where the record shop was located by bookmakers who make book on horse races,' and they saw writing on the pads. They then entered the second room without permission by opening the door for the purpose of arresting defendant for bookmaking. They arrested defendant and then secured the evidence introduced at the preliminary hearing by searching the premises. The telephone that the officer answered was located in a third or back room, 'entry being made into that room from the center or second room through an opening in a partition which does not have a door.' Neither of the officers had a search warrant or a warrant for defendant's arrest.

The trial court held admissible the evidence of what the officers could see by looking through the hole in the door between the room open to the public and the second room that was not. It concluded, however, that what the officers could see from the door was not sufficient to justify their entry without a search warrant to make an arrest, and pointed out that the presence of pads with writing on them, even of the type ordinarily used by bookmakers in the vicinity, was consistent with the legitimate business of a record shop being conducted on the premises. Accordingly, it held that the evidence obtained after the officers entered the second room without a warrant or permission was incompetent, and since the remaining evidence was insufficient, it granted defendant's motion to set the information aside. The People appeal.

The Attorney General contends that when the officers looked through the door into the second room, they had reasonable cause to believe that defendant had committed a felony and that he was committing the offense of occupying premises for the purposes of bookmaking in their presence, and that therefore the arrest and search were lawful. See Pen.Code § 836(1, 3); People v. Martin, 45 Cal.2d 755, 290 P.2d 855. We cannot agree with this contention.

When the officers looked through the door they saw nothing that was incriminating. They merely saw defendant standing behind a desk with a pencil in his hand and two pads of paper in front of him. There was writing on the pads. Defendant was operating a record store open to the public, and just as in the case of any shopkeeper, businessman, or professional man, he might reasonably be expected to have pencils and pads of paper available for making notes and memoranda for use in the legitimate conduct of his business. Moreover, the fact that the pads of paper were of the kind used by bookmakers in the area is of no significance. They were ordinary small pads of paper of the sort that may be purchased in any stationery store and that are undoubtedly used by all sorts of persons for all sorts of purposes. Similar pads may be found in almost every office, and certainly, the fact that bookmakers also use them cannot constitute reasonable cause to believe that everyone using them is engaged in bookmaking.

The attorney general contends, however, that when what the officers saw is viewed in the light of the fact that another person had been arrested at the record shop for bookmaking the day before and the fact that defendant was known personally to them as a bookmaker, reasonable cause for the arrest appears. It is true that the stipulated fact that defendant was known personally to the officers as a bookmaker might be interpreted as of itself justifying an arrest. Thus the stipulation is consistent with the conclusion that before the officers saw defendant in the record shop they knew he had committed felonies for which he was subject to prosecution, and that therefore they were justified in arresting him for such past offenses whenever he was found. Defendant, however, was not arrested for or charged with any offenses other than the one discovered at the time of his arrest, and neither in the trial court nor on appeal has it been contended that the arrest may be justified as one for some past offense. Accordingly, we conclude that the stipulated fact that defendant was a known bookmaker...

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  • People v. Shelton
    • United States
    • California Supreme Court
    • 30 January 1964
    ...Court, 59 Cal.2d 65, 67-68, 27 Cal.Rptr. 889, 378 P.2d 113; People v. Kitchens, 46 Cal.2d 260, 263, 294 P.2d 17; People v. Sanders, 46 Cal.2d 247, 251, 294 P.2d 10, and cases cited; People v. Boyd, 173 Cal.App.2d 537, 539, 343 P.2d 283; People v. Green, 152 Cal.App.2d 886, 889, 313 P.2d 955......
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    ...274, 38 Cal.Rptr. 1, 391 P.2d 393; People v. Privett, supra, 55 Cal.2d 698, 702, 12 Cal.Rptr. 874, 361 P.2d 602; People v. Sanders (1956) 46 Cal.2d 247, 251, 294 P.2d 10.) Furthermore, when first confronted by defendant, Martin observed him become very pale and start to retreat to the main ......
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