People v. Steinberg

• Citation: 148 Cal.App.2d 855,307 P.2d 634
• Decision Date: 01 March 1957
• Docket Number: Cr. 5750
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Isadore STEINBERG, Defendant and Appellant.

Page 634

307 P.2d 634

148 Cal.App.2d 855

The PEOPLE of the State of California, Plaintiff and Respondent, v. Isadore STEINBERG, Defendant and Appellant.

Cr. 5750.

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

March 1, 1957.

Hearing Denied April 30, 1957.

Ernest L. Graves, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Victor Griffith, Deputy Atty. Gen., for respondent.

MOORE, Presiding Justice.

Convicted of having occupied a residence with books, papers, apparatus and paraphernalia for the purpose of selling and registering bets on horse races, Penal Code, § 337a, subd. 2, defendant appeals from the judgment and from the order denying his motion for a new trial on the grounds that (1) the court admitted evidence obtained as a result of illegal search of private premises and (2) that there was no reasonable cause for making the search, over the objections of appellant.

During a period of two weeks after January 21, 1956, Officer Norris, a member of the vice squad of the Hollywood Division of the Los Angeles Police Department, was advised by a private, confidential informant that appellant was currently engaged in bookmaking. The officer had in the past received information from the same informant on many occasions and in each instance it was found to be dependable. The information was not a member of any law-enforcing agency. But on the occasion in January he told Officer Norris that appellant daily, after leaving his residence about 9 a. m., visited a telephone spot at some point in the Wilshire Division area; that the number of the telephone had a Dunkirk prefix; that appellant took bets from his own bettors over the Dunkirk telephone, but that such bets did not exceed $20 across the board; that appellant had been alerted to the likelihood that the police were in pursuit of him and that he had provided against such pursuit. Officer Norris acquainted Officer Kubiak with such information and admonished Kubiak that appellant would attempt to destroy any evidence 'at the phone spot, like flushing it down the toilet as he had done in the past.'

Kubiak saw appellant leave his home February 7, but lost sight of him. On February 8 he trailed appellant but again lost view of him after the latter left his automobile at Ninth and Oxford. But on February 9, about 9:30 a. m., the officer observed his prey enter the rear of the building numbered 820 South Oxford in Los Angeles. It is a rooming house with entrances on a side and at the front and rear. Kubiak absented himself for a while and at 11:30 a. m. returned with Officer Smith to the situs of his earlier observations on a parking lot north of the rooming home. From that point he saw appellant in plain view sitting at a table four feet from the window, talking into a telephone. Kubiak then by telephone requested Officers Norris and Johnson with Sergeant Riley to come to the vacant lot. Then, aided by a pair of field glasses, Kubiak again clearly saw appellant talking on the telephone in his same upstairs room. He thereupon hastily ascended the rear stairs to the second floor and cried out: 'Police officers.' At that instant through the glass door he saw appellant rise from the desk by which he was sitting with some papers in his hand and move speedily away. On observing such movement, Kubiak forced entrance. When he reached the inside, appellant rapidly walked toward the restroom, dropped pieces of torn paper in the commode and flushed it. The papers were retrieved by the officer who placed appellant under arrest.

As an expert on bookmaking, Kubiak determined that he was in the lair of a bookmaker. It contained all the equipment and accoutrement commonly found in the rendezvous of the bookmaker: papers, pencils, scratch sheets, daily racing forms, pieces of paper on which bets can be recorded, and telephones. In the room where appellant had been seen engaged in his operations, the telephone was on his desk on which lay the National Daily Reporter and nearby were racing forms, pencils and ball point pens. Also, the officer found there papers containing names and numbers. In the opinion of Officer Kubiak, the slips of paper contained wagers on horses running that day at various tracks in the United States. One sheet of paper was an 'own sheet' on which was a record of the moneys owed by the bettors to the bookmaker, or the sum due from the latter to the bettors.

Appellant, in reply to questions by the officer stated that he had been in the '820' house for two days; that it was obvious to the officer why appellant tried to flush the betting markers down the toilet; that exhibit 5 ¹ was in his handwriting but its figures were just bets of his own; that 'there is nothing I can say. You've got me dead bang so why should I answer a lot of questions.' He stated that the key Kubiak had taken from him was the key to the front door. The officer took an exemplar of appellant's writing. Found, also, on the desk was a sheet (exhibit 6) with a record of wagers on horses at various tracks. Such record was in appellant's writing.

To make the proof complete, Kubiak answered incoming calls on the telephone. One unidentified man's voice announced that he was 'Jack' and inquired as to his account. Kubiak answered, 'You're out completely.' But the party with a persistent confidence in appellant moaned and replied, 'Give me two across on Marcliff in the fourth.' It was proved that such communication from 'Jack' was an attempt to place a bet of $2 to win, $2 to place, and $2 to show on Marcliff, a horse running in the fourth race at Santa Anita on February 9.

It is contended that the court erred in allowing evidence obtained as the result of an allegedly illegal search of private premises and seizure of such proofs. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. Respondent contends that the search and seizure were an incident to a lawful arrest and therefore legal. We thus have another appeal planted in the Cahan decision. But it is doomed to failure because when a police officer has reasonable cause to believe that a suspected person has committed a felony, the officer is authorized to make an arrest of the suspect and also make a search of the latter's premises and to seize such evidences of the alleged crime as may there be found. Penal Code, § 836, subds. 1, 3 and 4; People v. Simon, 45 Cal.2d 645, 648, 290 P.2d 531; People v. Soto, 144 Cal.App.2d ----, 301 P.2d 45; People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535; People v. Montes, 146 Cal.App.2d ----, 303 P.2d 1064; People v. Gonzales, 141 Cal.App.2d 604, 606, 297 P.2d 50. Appellant had the misfortune to commit his crime in the presence of the officer. While standing on the vacant lot adjoining appellant's premises, Officer Kubiak observed appellant through the latter's window performing acts commonly done by a bookmaker, which was the character given appellant by Kubiak's informant. When the officer proceeded to appellant's door, he again observed his activities through the glass door. Convinced of appellant's criminal activities, the officer entered the door forcibly. He witnessed appellant leave his desk and hasten to the bathroom where he cast the papers into the toilet bowl. Kubiak retrieved the torn papers and arrested appellant....