People v. Shafer, Cr. 6844

• Decision Date: 25 July 1960
• Docket Number: Cr. 6844
• Citation: 6 Cal.Rptr. 594,183 Cal.App.2d 127
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Milton Theodore SHAFER, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 594

6 Cal.Rptr. 594

183 Cal.App.2d 127

PEOPLE of the State of California, Plaintiff and Respondent, v. Milton Theodore SHAFER, Defendant and Appellant.

Cr. 6844.

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

July 25, 1960.

A. Brigham Rose, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Ernest E. Sanchez, Deputy Atty. Gen., for respondent.

FOX, Presiding Justice.

Defendant was convicted of violating section 12020, Penal Code (possession of a blackjack). He has appealed from the judgment and sentence (order granting probation) and from the order denying his motion for a new trial.

The police obtained a search warrant authorizing them to search defendant's premises, at 210 North Belmont Avenue in Los Angeles, for narcotics. Upon proceeding to that location they observed defendant coming out of the house. He was arrested and shown the search warrant. The premises were searched and the blackjack was found in a box in a kitchen cupboard. On the blackjack was a note which read, 'This was brought from the east by Margo, my deceased wife, M. Shafer.' Defendant stated that the blackjack belonged to his wife; that it had been given to her by a police officer from New Jersey for self-protection; that it had been in the cupboard with her personal effects, and that his wife had passed away four or five years ago. The box in which the blackjack was found was very dusty. No narcotics were found in the defendant's possession.

Defendant did not testify in his own defense. He contends that the search of his premises and his arrest were contrary to law.

Defendant's premises were searched pursuant to the warrant therefor. Defendant has furnished neither evidence, authority, nor argument to challenge the validity of the warrant. He did not seek review of the issuance of such warrant under Penal Code sections 1539 and 1540. See Arata v. Superior Court, 153 Cal.App.2d 767, 769-770, 315 P.2d 473; People v. Dosier, 180 Cal.App.2d 436, 4 Cal.Rptr. 309. It therefore follows that the evidence produced at the trial was admissible against defendant for, while it is true that the warrant was issued to authorize the search of defendant's premises for narcotics and that the object actually found was a blackjack, this fact does not render it inadmissible in evidence because police officers, acting properly in the course of their duty, are not required 'to blind themselves to what was in plain sight simply because it was disconnected with the purpose for which they entered.' People v. Roberts, 47 Cal.2d 374, 379, 303 P.2d 721, 722; People v. Ortiz, 147 Cal.App.2d 248, 251-252, 305 P.2d 145; People v. Littlejohn, 148 Cal.App.2d 786, 791, 307 P.2d 425.

People v. Ortiz, supra, is here particularly apposite. It was there argued (147 Cal.App.2d at page 251, 305 P.2d at page 146) that the marijuana found in defendant's car 'was illegally seized and therefore inadmissible in evidence because it 'was not related to the crime for which the defendant had been placed in custody. * * *'' This court pointed out that '[a]n effective answer to this contention is found in Harris v. United States, 331 U.S. 145 [67 S.Ct. 1098, 91 L.Ed. 1399]. In that case federal officers, armed with an arrest warrant, arrested the defendant for one crime and while searching his apartment found evidence which implicated him in a wholly different and distinct offense. Upon conviction of the second charge, defendant appealed on the ground, among others, that the evidence thus procured was improperly admitted as it was not within the purview of the charge for which he was arrested. In rejecting defendant's contention, the court stated (331 U.S. at pages 154-155, 67 S.Ct. at page 1103): 'Here during the course of a valid search the agents came upon property of the United States in the illegal custody of the petitioner. * * * A crime was thus being committed in the very presence of the agents conducting the search. Nothing in the decisions of this Court gives support to the suggestion that under such circumstances the law-enforcement officials must impotently stand aside and refrain from seizing such contraband material. If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime,...