Willson v. Superior Court In and For San Diego County

Decision Date24 February 1956
Citation294 P.2d 36,46 Cal.2d 291
CourtCalifornia Supreme Court
PartiesMona Floy WILLSON, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SAN DIEGO, Respondent. L. A. 23924.

Edgar B. Hervey and James Edgar Hervey, San Diego, for appellant.

James Don Keller, Dist. Atty., and Luther L. Leeger, Deputy Dist. Atty., San Diego, for respondent.

TRAYNOR, Justice.

By information petitioner Mona Willson was charged with one court of occupying premises for the purpose of horse-race bookmaking and one count of recording a bet on a horse race. Penal Code § 337a (2, 4). Her motion to set aside the information on the ground that there is no reasonable or probable cause to believe she committed the offenses charged was denied, see Penal Code § 995, and she now seeks prohibition to prevent further proceedings against her. See Penal Code § 999a.

Petitioner contends that her commitment was based entirely on incompetent evidence and that the peremptory writ should therefore issue. See Rogers v. Superior Court, 46 Cal.2d 3, 291 P.2d 929.

At the preliminary hearing, San Diego Chief of Police Adam Jansen testified that on May 25 or 26, 1955, a man stopped him in the hallway of the police station. The man appeared to know Chief Jansen, but Chief Jansen did not know him and did not find out who he was or where he lived. The man told him that 'there was a considerably large book making operation in progress in the Monte Carlo bar. * * * He said he had been in the place; that he had observed it, and he described what the operation was.' Part of the information given concerned a waitress named Mona. The man said that she would generally be found near the telephone, that she occasionally answered it, and that she took bets from customers in the place. 'He said that the girl Mona used food checks, restaurant checks. I gathered it was the customary tab that the waitress would make out when you were served food from the way he described it. She wrote the wagers on these slips, and that she had two pockets in her he didn't say uniform, he said she had two pockets, one, I don't know which one, one contained money and the other one contained betting slips. * * *' Chief Jansen also testified that he later secured other information indicating that bookmaking activities were going on at the Monte Carlo bar, but the record does not indicate what the source of this information was.

The substance of the information stated above was communicated to other police officers including Officer Marilyn Sunday, who, in the company of three other officers, went to the Monte Carlo bar during the afternoon of June 10th. The purpose of the visit was to secure evidence of bookmaking, and if such evidence was found, to make arrests. On entering the bar, Officer Sunday observed petitioner standing at the far end of the bar. She was wearing a belt with a metal plate that had the name 'Mona' written on it. Officer Sunday testified that 'She was standing facing the bar, and I approached her at that point. When I came up to (petitioner), I observed on the bar a telephone, a small scratch pad and a pencil. I stated to her I noticed first that she had something in her hand, appeared to be papers. I asked her if I amy see what was in her hand. And as I said that, these papers that were in her hand, she attempted to crumple them, and extended her hand to the back and to the side of her.' Officer Sunday took the papers from her hand and then searched petitioner's pockets. Three slips of paper were taken from petitioner's hand and another from her left pocket, and approximately $270 in cash was found in her other pocket. Officer Sunday then asked petitioner to come with her, and she and another officer took petitioner to the police station. The officers were not in uniform and did not identify themselves as such or inform petitioner expressly that she was being arrested, and they did not have a search warrant or a warrant for petitioner's arrest. There was evidence that the slips were registered bets on horses running in races on the day that they were seized.

Section 835 of the Penal Code provides that 'An arrest is made by an actual restraint of the person of the defendant, or by his submission to the custody of an officer. The defendant must not be subjected to any more restraint than is necessary for his arrest and detention.' Section 841 provides that 'The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or is pursued immediately after its commission, or after an escape.' Since petitioner was taken into custody while apparently engaged in the commission of an offense, there is evidence that the requirements of these sections were met. Moreover, since petitioner was arrested in a public bar, but made no outcry or objection, it may be inferred that she realized that Officer Sunday was a police officer and that her purpose was to make an arrest. Under these circumstances it is immaterial that petitioner was not expressly informed of Officer Sunday's authority and purpose. See, People v. Martin, 45 Cal.2d 755, 290 P.2d 855, and cases cited. Furthermore, if before the search and seizure, Officer Sunday was justified in making an arrest, it is also immaterial that the search and seizure preceded rather than followed the arrest. People v. Simon, 45 Cal.2d 645, 290 P.2d 531.

Defendant contends, however, that before the search and the arrest, Officer Sunday had no reasonable cause to believe she had committed or was committing a felony, Penal Code § 836(3), and that the search and seizure were therefore unlawful. See, People v. Brown, 45 Cal.2d 640, 290 P.2d 528; People v. Simon, supra, 45 Cal.2d 645, 290 P.2d 531; People v. Boyles, 45 Cal.2d 652, 290 P.2d 535.

In People v. Boyles, 45 Cal.2d 652, 656, 290 P.2d 535, 537, we held that 'reasonable cause to justify an arrest may consist of information obtined from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.' Accordingly, the question presented is whether the information given by the unidentified man to the Chief of Police and passed on to Officer Sunday was sufficient in the light of the other evidence to constitute reasonable cause to believe that defendant was guilty of a felony. Although information provided by an anonymous informer is relevant on the issue of reasonable cause, in the absence of some pressing emergency, see People v. Kilvington, 104 Cal. 86, 92-93, 37 P. 799, an arrest may not be based solely on such information, United States v. Kind, 2 Cir., 87 F.2d 315, 316; ...

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