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

The PEOPLE of the State of California, Plaintiff and Respondent, v. James Harian ROBERTS, Defendant and Appellant.*

Civ. 3213.

Decided: July 09, 1956

William John Scammon, Burlingame, for appellant. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

Defendant appeals from a judgment of conviction entered on a jury verdict finding him guilty of the crime of burglary, second degree. An appeal is also taken from the order denying his motion for a new trial.

Robert Quinn, an officer of the Burlingame Police Department, observed appellant on the evening of August 5, 1955, at about 10 p. m. standing in front of the display window of the Wollmer Music Company in Burlingame. This officer saw appellant enter a Ford automobile and drive away. He noted the license number of the car driven by appellant.

On August 7, 1955, it was discovered that the Wollmer store had been burglarized. The display window had been broken open and merchandise on exhibition was taken. Among this merchandise was an RCA table model radio, serial No. 079149.

Upon investigation it was learned through the Department of Motor Vehicles that the Ford automobile seen in the vicinity of the Wollmer store on August 5, 1955, was registered to one Margaret Higgins, 771 Turk Street, San Francisco.

Two police officers from the Burlingame Police Department, Officers Quinn and Hinterman, with Inspector Edward C. Preston of the San Francisco Police Department went to 771 Turk Street in search of Mrs. Higgins. They were told that she had moved to 761 Turk Street so they next went to that address. Arriving at 761 Turk Street, an apartment house, they talked to the building manager, Mrs. Davis, and obtained the number of Mrs. Higgins' apartment from her. They went to apartment No. 44, that of Mrs. Higgins, and knocked on the door. There was no response. The officers testified that they then heard moans or groans coming from the apartment and thinking someone was in distress they decided to contact the manager.

Mrs. Davis, the manager, at the police officers' request came to apartment No. 44 and opened the door. The police officers went in and looked around. No one was present in the apartment. (When asked to express an opinion as to where the moans must have come from in view of the fact that the apartment was empty, one of the officers testified that the sound could have been the moan of pigeons.) A new radio was seen on a shelf in the kitchen. One of the officers picked it up and noted its serial number. He recognized it as one of the radios taken from Wollmer's store. The officers were in the apartment two or three minutes and then left.

A search warrant was obtained and the radio seen by the officers on their first trip to Mrs. Higgins' apartment was seized pursuant to this warrant. This was the RCA table model, serial No. 079149, that had been taken from Wollmer's store. Appellant was arrested at the apartment.

Appellant's sole contention on this appeal is that the trial court erred in ruling that the original entry into Mrs. Higgins' apartment by the police officers before obtaining a search warrant was lawful. It is his contention that the motivating purpose for this entry was to discover stolen goods and that the entry was thus illegal and the evidence obtained thereby inadmissible. The trial judge was of the view, when this contention was presented to him, that the evidence supported a finding that the officers entered because they felt compelled to aid someone in distress. He therefore ruled that the original entry was not illegal and that the evidence later obtained under the search warrant as a result of this entry was admissible.

It has been said that nowhere in the general law or local ordinances can all the duties of a police officer be found set forth in detail. These duties are so varied and indefinable that an exact and detailed outline of them cannot be expected. Noble v. City of Palo Alto, 89 Cal.App. 47, 264 P. 529. However, in general it is the duty of the police to watch over the safety of citizens and to guard their persons and property from assault, destruction and injury. 21 Cal.Jur. 400. Certainly it can be considered to be within the powers and duties of police officers to make some sort of an investigation when they have reason to believe that someone is in distress. Indeed they would probably be derelict in their duty if they did nothing to render assistance in such a situation.

The officers did not force the door but procured the manager to admit them with a key. See People v. Caritativo, 46 Cal.2d 68, 292 P.2d 513; People v. Gorg, 45 Cal.2d 776, 291 P.2d 469. Under the circumstances of believing that some person in the apartment was in distress and might be in need of assistance we agree with the trial court that the entry was a proper one for a lawful purpose. Once lawfully in the apartment the stolen radio was in plain view and seeing it there the officers were justified in looking for the serial number. The rule against unlawful searches and seizures should not be stretched to unreasonable lengths and the facts presented by each particular case must be reasonably interpreted, having in view the primary purpose of protecting the constitutional rights of the individuals involved against unlawful searches. Having observed the stolen property in the apartment while the officers were lawfully therein they had ample grounds for procuring the search warrant.

We cannot agree with appellant's contention that the officers' testimony was so inherently improbable that it cannot support the trial court's finding. People v. Huston, 21 Cal.2d 690, 693, 134 P.2d 758.

Judgment and order affirmed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.

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