People v. Superior Court

• Decision Date: 25 June 1970
• Citation: 9 Cal.App.3d 203,88 Cal.Rptr. 21
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF SAN BERNARDINO, Respondent; Noah J. THOMAS, Real Party in Interest. Civ. 10097.

Page 21

88 Cal.Rptr. 21

9 Cal.App.3d 203

The PEOPLE of the State of California, Petitioner, v. SUPERIOR COURT OF SAN BERNARDINO, Respondent Noah J. THOMAS, Real Party in Interest.

Civ. 10097.

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

June 25, 1970.

[9 Cal.App.3d 206] Lowell E. Lathrop, Dist. Atty., by Kenneth W. Nydam, Deputy Dist. Atty., for petitioner.

No appearance for respondent.

Carl T. Rimbaugh, San Bernardino, for real party in interest.

OPINION

TAMURA, Acting Presiding Justice.

The People seek a writ of mandate commanding respondent court to vacate an order made pursuant to section 1538.5 of the Penal Code suppressing certain evidence seized from the home of real party in interest (defendant).

An information has been filed charging defendant with three counts of receiving stolen property, count I with receiving a Magnavox color television set belonging to Mrs. Esther Hull, count II with receiving a Magnavox color television set belonging to Mr. Fritz Kupher, and count III with receiving certain power tools belonging to Enoch Wood. The items described in the information, along with numerous other articles, were seized from defendant's house when he was arrested for the offense charged in count I. Following defendant's motion under section 1538.5 and an extended hearing thereon, respondent court denied the motion with respect to the color television set described in count I but granted it as to all other items seized.

The evidence adduced at the motion to suppress may be summarized as follows:

Detective Mayfield of the San Bernardino County Sheriff's Office testified as follows: In the course of a burglary investigation he learned from one of the suspects, Danny Ballejos, that the latter sold defendant a Magnavox color television set which he and others had stolen from the Hull residence. The officer testified that Ballejos related that he and his companion took the television set to defendant because the latter was reputed to be a fence dealing in television sets and typewriters. At about 8:00 p.m. on April 11, 1969, Mayfield accompanied by three other officers went to defendant's residence to investigate the alleged sale of the stolen television set to defendant. The officers had no search or arrest warrant. Mayfield knocked on the door and defendant answered. Mayfield identified himself, stated the purpose of his visit and asked defendant if he owned a color television set and whether the officers could check it. Defendant stated he owned such a set and invited Mayfield to enter the house. Upon entering Mayfield observed a Magnavox color television set near the door, checked the serial number, and found that it matched the number of the stolen set. When asked how he acquired the set defendant stated he purchased it from a man who was separating from his wife. Mayfield arrested defendant and advised him of his rights. By this time the other officers had entered the house. They thereafter conducted a search of the house and seized numerous articles which they suspected had been stolen, including two additional color television sets, power tools, appliances, miscellaneous tools, musical instruments, a .22 revolver and a rifle.

As to each item seized Mayfield gave reasons for his belief that it was stolen. As to the two additional color television sets, he testified that they both appeared to be new; one had not been connected for use; and defendant failed to give a satisfactory explanation as to how he had acquired them. He based his suspicion that the other items seized had been stolen on the fact that some still had price tags on them; certain articles which defendant said he obtained from 'surplus,' bore no marks indicating prior government ownership; as to some items defendant gave no satisfactory explanation for their possession and failed to produce receipts for their purchase; and as to some articles on the ground that they were of the type usually stolen by narcotics addicts because of their ready convertibility to cash. Other than the one color television set, the officers had no actual knowledge that the items had been stolen. ¹

Defendant and his wife testified that the officers entered the house without consent and conducted the search over their objections. Defendant testified that after he was arrested and handcuffed, he was harrassed by the officers, was not permitted to offer explanations for his possession of the articles seized, and denied that officers asked for an explanation with respect to the two additional color television sets. Defendant also testified that he was in the business of selling used merchandise.

The trial court determined that defendant consented to the officer's entry into the house, that probable cause to arrest existed, and that the subsequent search of the home was justified as an incident to the arrest. However, except as to the one color television set, the court found that the officers acted unreasonably in seizing the articles sought to be suppressed.

The information furnished by Ballejos was corroborated by Mrs. Hull and by defendant's possession of the stolen television set. Accordingly, the arrest was valid and the officers were entitled to conduct a search incident thereto. As the trial court properly determined, the permissible scope of the search was governed by Pre-Chimel standards (Chimel v. California, 395 U.S. 752 (June 23, 1969) 89 S.Ct. 2034, 23 L.Ed.2d 685; People v. Edwards, 71 A.C. 1141, 1152, 80 Cal.Rptr. 633, 458 P.2d 713.) Under Pre-Chimel standards the subsequent search of the house for other stolen articles was justified. (See Skelton v. Superior Court, 1 Cal.3d 144, 155--156, 81 Cal.Rptr. 613, 460 P.2d 485.) The only question, therefore, is whether the officers acted reasonably in seizing the items which were suppressed.

Both the Fourth Amendment and article I, section 19, of the California Constitution, protect one against an unreasonable seizure as well as an unreasonable search. 'Probable cause' for Fourth Amendment purposes means substantially the same as 'probable cause' for purposes of arrest without a warrant. (Skelton v. Superior Court, Supra, 1 Cal.3d 144, 149--150, 81 Cal.Rptr. 613, 460 P.2d 485; Williams v. Justice Court, 230 Cal.App.2d 87, 94, 40 Cal.Rptr. 724.) 'Probable cause' for the issuance of a search warrant has been held to be 'approximately the same as that applicable to an arrest without a warrant, a commitment by a magistrate or an indictment by a grand jury (citations), namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.' (Skelton v. Superior Court, Supra, at p. 150, 81 Cal.Rptr. at p. 616, 460 P.2d at p. 488.) 'Probable cause has also been defined as having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt.' (People v. Ingle, 53 Cal.2d 407, 413, 2 Cal.Rptr. 14, 17, 348 P.2d 577, 580; People v. Nagle, 25 Cal.2d 216, 222, 153 P.2d 344; see People v. Hall, 62 Cal.2d 104, 107, 41 Cal.Rptr. 284, 396 P.2d 700, fn. 3.)

The reasonableness of the officers' actions in seizing the items in question should be tested by the foregoing standards. If the facts known to the officers, including the nature of the articles and the circumstances under which they were found, were sufficient to indicate to a reasonable man that they were stolen, the seizure was valid. (People v. Superior Court, 274 A.C.A. 7, 12, 78 Cal.Rptr. 757; People v. Baker, 267 Cal.App.2d 916, 73 Cal.Rptr. 455; People v. Ransome, 180 Cal.App.2d 140, 146, 4 Cal.Rptr. 347; People v. Wright, 153 Cal.App.2d 35, 39--40, 313 P.2d 868.)

The question whether the officers had reasonable cause to suspect that the items seized were stolen was a matter to be determined by the trial court on the evidence presented at the ...