THE PEOPLE, Respondent, v. JAMES FARRARA et al., Appellants.
Crim. No. 5822
In Bank. Supreme Court of California
Feb. 24, 1956
Respondent‘s petition for a rehearing was denied March 21, 1956.
46 Cal.2d 265
I dissent, however, from those portions of the decision which hold that the evidence was illegally obtained. I am of the opinion that the arrest was a lawful one and that the search made as an incident to such lawful arrest was a reasonable search rather than an unreasonable search. (See dissenting opinion in Badillo v. Superior Court, post, p. 269 [294 P.2d 23].)
I would affirm the judgment and order denying a new trial.
Respondent‘s petition for a rehearing was denied March 21, 1956. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.
G. Vernon Brumbaugh for Appellants.
Edmund G. Brown, Attorney General, and Joan D. Gross, Deputy Attorney General, for Respondent.
On October 28, 1954, Officer Sherrer of the Los Angeles Police Department observed James Farrara get into his car near the corner of 8th and Cochran in Los Angeles. Two other officers got into the car with James and the car was
Shortly thereafter at approximately 12.35 p. m. on October 28th, Officer Sherrer and two other officers gained entrance to an apartment about half a block away on South Cochran by the use of one of the keys taken from James. They found Helen Farrara in the bedroom with a scratch sheet for October 28th and several pieces of paper similar to those taken from James. These papers were identified as records of bets in Helen‘s handwriting for races run on the 28th, and Helen admitted taking bets over the telephone for two days. The apartment was regularly occupied by Maxine Shaman, a friend of the defendants, who was present when the officers arrived.*
Before the arrests, the officers had had the apartment and defendants under observation and had seen both of them go to the apartment on the 27th. James arrived before 10 a. m. and left shortly after 1 p. m. Helen left her home about 12:30 p. m., went to the apartment, and left there at about 5:25 p. m.
Neither defendant took the stand or presented any evidence other than by cross-examining prosecution witnesses.
The foregoing evidence is sufficient to support the conclusion of the trial court that each defendant was guilty of recording bets and that Helen was guilty of occupying the apartment “with papers . . . for the purpose of recording . . . bets.” (
Defendants contend that the officers did not have reasonable cause to believe that either of them had committed a felony and that the arrests and the searches and seizures incident
This case was tried before the decision in People v. Cahan, 44 Cal.2d 434 [282 P.2d 905], no objection was made to the introduction of the evidence in the trial court, and no evidence was presented for the purpose of showing whether or not the officers acted lawfully. Thus it does not appear whether or not the officers had warrants for defendants’ arrest or for the search of the premises or reasonable cause to believe that they had committed a felony. From the fact, however, that the officers had defendants and the apartment under observation, it may be inferred that they had some information indicating guilt, but the record is completely silent as to whether or not such information was sufficient to constitute reasonable cause to justify the arrests. Similarly, it may be inferred from the fact that the officers used the key taken from James to enter the apartment they did not enter with the consent of the occupants, but the record is also completely silent as to whether or not the entry was preceded by the demand and explanation required by
In People v. Kitchens, ante, p. 260 [294 P.2d 17], we held that the rule that the admissibility of evidence will not be reviewed on appeal in the absence of a proper objection in the trial court, is not applicable to appeals based on the admission of illegally obtained evidence in cases that were tried before the Cahan decision. We were careful to point out, however, that there was “sufficient evidence in the record to support the conclusion that the search and seizure at the time of defendant‘s arrest were unlawful.” In Badillo v. Superior Court, post, p. 269 [294 P.2d 23], we held in this respect that “the defendant makes a prima facie case when he establishes that an arrest was made without a warrant or that private premises were entered or a search made without a search warrant, and the burden then rests on the prosecution to show proper justification. [Citations.]”
In the present case, on the contrary, there is no such evidence, and to reverse the judgment it would be necessary to presume that the officers acted illegally and that the trial court erred in admitting the evidence so obtained. It is settled, however, that error will not be presumed on appeal
The orders are affirmed.
Gibson, C. J., Schauer, J., and McComb, J., concurred.
Shenk, J., and Spence, J., concurred in the judgment.
CARTER, J.-I dissent.
For the reasons stated in my dissenting opinion in People v. Martin, Crim. 5758, ante, p. 106 [293 P.2d 52], and People v. Beard, Crim. 5809, post, p. 278 [294 P.2d 29], I would reverse the judgment in the case at bar.