PEOPLE v. BROWN

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District Court of Appeal, Second District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Appellant, v. Audrey Louise BROWN and Mollie Mae Thomas, Defendants and Respondents.

PEOPLE of the State of California, Plaintiff and Appellant, v. Lionel KEENER and Eula Keener, Defendants and Respondents.*

Cr. 7125, 7126.

Decided: November 23, 1960

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty. of Los Angeles County, Harry Wood, Robert J. Lord, and Harry B. Sondheim, Deputys Dist. Attys., Los Angeles, for appellant. Russell E. Parsons, Harry E. Weiss, and Daniel Busby, Los Angeles, for respondents.

The defendants in each of the two above entitled cases made a motion, under section 995 of the Penal Code, to set aside the information in each respective case. The substance of each motion was that the defendants had been committed without probable cause in that the search warrant, under which searches were made, was issued without probable cause, the searches were illegal, and the evidence was illegally obtained. The motions were granted. The People appeal from the orders setting aside the informations.

In three counts of an information (No. 222421) defendant Audrey Louise Brown was accused of violating section 337a, subdivisions 1, 2, and 4, of the Penal Code (bookmaking, occupying house with paraphernalia for purpose of bookmaking, and recording bets). In that information defendant Mollie Mae Thomas was accused of violating section 337a, subdivision 5, of the Penal Code in that on September 25, 1959, as owner of a house at 1118 West 47th Street, in Los Angeles, she permitted defendant Brown to occupy the house for purpose of recording bets on horse races. Also, it was alleged therein that defendant Brown had been convicted of violating section 337a of the Penal Code, a felony.

In another information (No. 222422) the defendants Lionel Keener and Eula Keener were accused, in count 1, of violating section 337a, subdivision 1, of the Penal Code (bookmaking). In count 2 of that information the defendant Lionel Keener was acccused of violating section 337a, subdivision 2, of the Penal Code in that on September 25, 1959, he occupied a house at 1131 West 47 th Street, in Los Angeles, for the purpose of recording bets. In count 3 the defendant Eula Keener was accused of violating section 337a, subdivision 4, of the Penal Code (recording bets). Also, it was alleged therein that Lionel Keener had been convicted of violating section 337a of the Penal Code, a felony.

On September 24, 1959, Honorable Arthur S. Guerin, Judge of the Municipal Court of Los Angeles Judicial District, issued a search warrant directed to any sheriff, marshal, or policeman in Los Angeles County, which stated in substance, as follows: Proof, by affidavit, having been made by R. E. Hatter that there is just, probable and reasonable cause for the issuance of the search warrant; the facts establishing reasonable and probable cause are set forth in the affidavit in support of search warrant attached thereto and made a part hereof; you are commanded to make immediate search of the premises at 1131 West 47th Street, 1118 West 47th Street, and 1748 West 43rd Street, in Los Angeles County (and to search Lionel Keener and two other designated persons [not defendants herein]), for the following property: (1) Bookmaking paraphernalia consisting in part of betting markers, scratch sheets, racing forms, business machines, and other memoranda relating to bookmaking activities; (2) Typewriters, business machines, and guns.

The affidavit in support of the search warrant was made by R. E. Hatter on September 24, 1959. The affidavit stated in substance, as follows: Affiant says he has and there is just, probable, and reasonable cause to believe and he does believe there is now in possession of Lionel Kenner (Keener), Fred D. Thomas, Jr., and Luther W. Price on premises at 1131 and 1118 West 47th Street, and 1738 West 43rd Street, the following personal property: (1) Bookmaking paraphernalia consisting in part of betting markers, scratch sheets, racing forms, business machines, and other memoranda relating to bookmaking activities; (2) Typewriters, business machines, and guns. Affiant is a Los Angeles police officer and is an expert in the manner in which bookmaking activities are commonly conducted in Los Angeles County. Said personal property described in the affidavit, to wit: bookmaking paraphernalia constitutes evidence which tends to show that a felony, bookmaking, a violation of section 337a of the Penal Code, has been committed, and that Lionel Kenner, Fred D. Thomas, Jr., and Luther W. Price committed it. Said personal property described in the affidavit, to wit: typewriters, business machines, and guns constitutes evidence which tends to show that a felony, receiving stolen property, a violation of section 496 of the Penal Code has been committed, and that said Kenner, Thomas, and Price committed it. Affiant has been advised by an informant on September 18, 1959, whose identity cannot be revealed without endangering the safety of said informant, that a dwelling located at 1131 West 47th Street is being used as a phone spot, and a dwelling at 1118 West 47th Street is being used as a back office. Said informant has advised affiant that both of these locations are operated under the direction of said Kenner, Thomas, and Price. The informant stated that Thomas has in his possession many stolen items, namely, typewriters, adding machines, and guns; and that some of those items have been transferred by Thomas from 1738 West 43rd Street, Los Angeles, to 1131 and 1118 West 47th Street. The informant has advised affiant that said three persons operate from 10 to 15 cash rooms in the Newton and University Division (of the police department), and that Thomas manages the operations at 1131 and 1118 West 47th Street; and that 1118 West 47th Street contains a secret passageway which will allow the escape of said persons in case of investigation. The informant has given information to officers in the past which has led to four arrests of persons charged with bookmaking, and in each arrest the persons were alleged to be in control of or operating a back office or phone spot, and the persons arrested were held to answer at preliminary hearings. As a result of the information the officers have conducted an investigation which has revealed that the telephone at 1131 West 47th Street, AXminster 4–6061, is registered to Eula Hall; the records of Southern California Gas Company indicate that said Eula Hall receives service in the name of Eula Kenner at said 1131 West 47th Street; that Eula Hall, also known as Eula Kenner, is the wife of Lionel Kenner. Affiant has ascertained from the Department of Motor Vehicles that license HGC 093 is a 1955 Oldsmobile registered to Audrey Brown and Molly Thomas. Molly Thomas is the mother of Fred D. Thomas, and that Audrey Brown is the sister of Fred Thomas. The records of Southern California Gas Company show that Molley Thomas receives services at 1118 West 47th Street. The records of the California Department of Justice show: that Fred D. Thomas has been arrested six times within the past nine years on charges relating to bookmaking; that Lionel Kenner has been arrested seven times within the past 11 years on charges relating to bookmaking; and that Luther W. Price has been arrested three times for bookmaking within the past 25 months. Affiant has determined that Fred D. Thomas was arrested for burglary on July 18, 1946. About August 22, 1959, one Ace Richmond told affiant that Fred D. Thomas had sold a stolen gun to Richmond several days previously. Said Luther Price was in possession of a stolen adding machine on September 12, 1958, when he was arrested. In affiant's opinion the following bookmaking activities are being conducted at 1118 West 47th Street: a ‘back-office operation’ is being conducted wherein a permanent recordation if made after contacting various relay spots or cash rooms at which places agents for the bookmaker are located, and said back-room does not receive telephone calls nor accept individual bets. That 1131 West 47th Street is the location for the following bookmaking activity: a phone spot is being conducted there wherein individual bettors place wagers through telephone calls; and these bets are temporarily recorded and then passed on to the back office. In the performance of the bookmaking activities, personal property of the type above described, to wit, bookmaking paraphernalia, is necessarily used in that activity, and that affiant believes that such persons operate the activity at 1131 and 1118 West 47th Street; and that said personal property is also present on the persons of Lionel Kenner, Fred D. Thomas, Jr., and Luther W. Price. Affiant believes that typewriters, business machines, and guns, which have been taken without permission, are present at 1738 West 43 rd Street. Affiant prays that a search warrant be issued with respect to the above locations for the seizure of said property.

A return to the search warrant, made by Police Officer McIntosh of the Los Angeles Police Department, states that, pursuant to said search warrant, he searched the premises at 1131 West 47th Street on September 25, 1959, about 4:30 p. m., and recovered 186 sheets of betting markers, 5 National Daily Reporters, 2 telephone bills, 1 gas bill, 2 parlay books, 18 tout sheets, 2 adding machines, and 4 telephones.

A return to the search warrant, made by Police Officer R. E. Hatter, states that, pursuant to said search warrant, he searched the premises at 1118 West 47th Street on September 25, 1958, about 4:30 p. m., and recovered 18 pads and 101 sheets of professional type (ABC) betting markers, 3 National Daily Reporters, 2 revolvers and ammunition therefor, 1 adding machine, 1 typewriter, 3 telephones, and 1 pair of handcuffs.

On December 3, 1959, the defendants Brown and Thomas filed a notice of motion to quash and set aside the search warrant on the grounds (1) that the basis for the probable cause for the warrant as indicated in the affidavit (attached to the warrant) is hearsay information ‘from an undisclosed confidential’; (2) the place to be searched and the property to be found were described in uncertain terms; and (3) there was no qualification of the Officer Hatter (affiant) as an expert in the field of bookmaking other than his own statements. It does not appear that defendants Keener filed a notice of motion to quash and set aside the search warrant, or that they made an oral motion to quash and set it aside. It does appear that their counsel participated in the oral proceeding for an order quashing the search warrant, and it appears that the judge who presided therein (Judge William H. Rosenthal) considered that the motion was made by all the defendants. At the beginning of the proceeding the judge said that the two cases ‘are here, apparently, on a motion made by Defense Counsel to quash a search warrant which was heretofore issued by Judge Arthur Guerin.’ The motion was heard on December 3, 1959. The witness at that hearing was Officer Hatter who made the affidavit in support of the search warrant. He was called as a witness by counsel for defendants, and he was asked to state the name of the informant referred to in the affidavit. The deputy district attorney, upon voir dire examination of the witness, asked whether the informant ‘was present or did he participate in any part of the arrest or the recovery of things from the search?’ He replied, ‘No.’ The deputy objected to further questions as to the name of the informant. Counsel for defendants requested that the officer be ordered to reveal the name of the informant. The request was denied. The motion to quash and set aside the search warrant was denied ‘in both cases.’ Thereafter, on the same day, Judge Rosenthal held a separate preliminary examination in each case. The first preliminary examination was in the case of People v. Brown and Thomas. Prior to calling a witness therein, counsel for defendants made a motion ‘that the transcript of the motion heretofore heard on the motion to quash the search warrant be marked as Defendant's A in this case and received.’ The deputy district attorney, in opposing the motion, argued that the motion to quash and the preliminary examination were separate proceedings and that the ‘motion to quash has nothing to do with this Preliminary Hearing.’ The motion was granted. At the preliminary examination, Officer Hatter was called as a witness by the People. It was stipulated that he was an expert in the manner in which bookmaking was conducted in Los Angeles County. He testified to the effect that, on September 25, 1959, at 4:30 p. m., pursuant to the search warrant, he entered the house at 1118 West 47th Street, Los Angeles, and he found therein and he took therefrom the things described in his return to the search warrant; defendants Brown and Thomas were in the house; those things, except the revolvers, ammunition, and handcuffs, were paraphernalia that could be used in registering and recording bets on horse races; after finding those things and after examining the premises, he formed an opinion, based on such investigation and evidence, that the house was being used as a back office where calls are made to bookmakers throughout the city and where wagers, which those bookmakers have taken from bettors, are received; he had a conversation with defendant Audrey Brown who said that certain things (Exhibit 4 for indentification—ten betting markers) which were found therein were her bets on horses, that she had written the markers, that the house was her mother's house (defendant Thomas' house), that she (Brown) did not live there; he had a conversation with defendant Mollie Thomas who said that place was her home, that her daughter Audrey Brown ‘did not come to her house very often to do this,’ and that she (Thomas) knew that bets were taken. Neither defendant testified, and no one was called as a witness on behalf of either defendant. When the exhibits which had been marked for identification were offered in evidence, the defendants objected thereto on the ‘grounds of illegal search and seizure’ and ‘illegal entry based on a defective search warrant.’ The objection was overruled and the evidence was received. Thereupon an order was made holding the defendants Brown and Thomas to answer to the counts as alleged against each one, respectively, in the complaint.

Immediately thereafter, the preliminary examination in the case of People v. Keener and Keener was held. Prior to calling a witness therein, counsel made a motion that the transcript and the record on the motion to quash the search warrant ‘be marked Defendants' A and received as part of the evidence in this particular case as Defendants' A.’ The motion was granted. At that preliminary examination, Officer McIntosh was called as a witness by the People. It was stipulated that he was an expert in the manner in which bookmaking was conducted in Los Angeles County. He testified to the effect that, on September 25, 1959, pursuant to the search warrant, he entered the house at 1131 West 47th Street, Los Angeles, and he found therein and he took therefrom the things described in his return to the search warrant; the defendants Lionel and Eula Keener were in the house; the things so referred to, except the telephone and gas bills, were paraphernalia that could be used in registering and recording bets on horse races; after examining the various things which he found in the house, he formed an opinion that the house was being used as a back office were wagers are received from bookmakers and where records and audits are made for bookmakers. Neither defendant testified, and no one was called as a witness on behalf of either of them. When the exhibits which had been marked for identification were offered in evidence, the defendants objected thereto on the grounds that they were obtained as a result of an illegal arrest and a defective search warrant. The objection was overruled. The court ruled to the effect that the evidence was insufficient as to Lionel Keener on count 3 (recording bets), and that count was dismissed. An order was made holding the defendants Keener to answer the other counts as alleged against each one, respectively, in the complaint.

The informations hereinabove referred to were filed on December 10, 1959. Defendants were arraigned in Department 100 of the Superior Court on December 17, 1959, and the cases were continued to December 23 for pleas. The minutes of December 23 recite: ‘Each defendant makes motion under 995 Penal Code,’ and the hearing on the motion (of each defendant) is continued to December 28. On December 28 the matter of hearing the motions was transferred to Department 112. The judge of that department said that the cases were there for hearing under section 995 of the Penal Code. When the case of defendants Brown and Thomas was called counsel for those defendants made a motion to dismiss the information on the grounds that there was no probable cause for the search, the search was illegal, the evidence was illegally obtained, and the evidence was insufficient ‘to hold’ the defendants to answer. Counsel for defendants did not make an argument with respect to the motion. The deputy district attorney argued to the effect that the officers acted upon reliable information, and upon a valid search warrant; that the issuance of the search warrant was a judicial act; that the officers were entitled to rely upon that judicial act and to make the arrest; that the motion to quash the search warrant had been heard and denied in the magistrate's court; and that the motion in the superior court under section 995 of the Penal Code should be denied. The trial judge, in making his ruling, said that the motion ‘to set aside’ the information would be granted. (It is to be noted that the judge referred to the motion in proper language of the code section as a motion ‘to set aside’ the information, and that he did not refer to it as a motion ‘to dismiss' as stated in the motion of defendants' counsel.) The minute order states that ‘Defendant's motion to dismiss under Section 995 Penal Code is argued and granted.’ Since section 995 does not provide for a dismissal, and since the judge used the words ‘to set aside,’ it is apparent that the clerk inadvertently used the word ‘dismiss' and that the minute order should be construed as meaning the motion ‘to set aside’ the information is granted. It appears that the basis for the ruling of the court, setting aside the information under section 995 of the Penal Code, was that the name of the informant was not stated.

In the case of defendants Lionel and Eula Keener similar proceedings were had upon the motion under said section 995, and a similar ruling was made therein.

 It is to be noted that in the preliminary examinations, excluding reference to the transcript regarding the motion to quash the search warrant, no request was made that the name of the informant be stated. It does appear that the transcript of the proceedings on the motion to quash the search warrant was received as an exhibit in the preliminary examinations. In the Keener case is was received as a part of the evidence. That transcript shows that defendants, upon the motion to quash, requested that the name of the informant be disclosed, and that the request was refused. Defendants did not make a motion upon the hearing of the motion to quash, or upon the preliminary examinations, to strike the testimony of the officers on the ground that the name of the informant was not stated. Nothing was said expressly upon the preliminary examination regarding the informant. There was no argument or statement upon the preliminary examinations to the effect that defendants were relying on the refusal of the prosecution to identify the informant, upon the motion to quash, as a basis for claiming illegality of the arrest and search. When the seized articles were offered in evidence, at the preliminary examinations, the objections thereto by the defendants were general in form, without any express reference to an informant or to a refusal to name an informant,—the objections in th Brown-Thomas case were ‘illegal search and seizure’ and ‘illegal entry based on a defective search warrant’; and the objections in the Keener case were ‘illegal arrest’ and ‘a defective search warrant.’ Upon the preliminary examinations there was no motion to set aside or review the prior order denying the motion to quash the search warrant. At the preliminary examinations the defendants did not require the prosecution to elect between disclosure (of the name of the informant) and having the prosecution testimony stricken. The prosecution may have had evidence other than the information furnished by the informant and it might have produced such other evidence, and not have relied on the search warrant, if it had been required to make such election; or the prosecution might have been willing, at the preliminary examination, if such election had been required, to waive the privilege of nondisclosure. In Coy v. Superior Court, 51 Cal.2d 471, at page 473, 334 P.2d 569, at page 570, it was said: ‘In the present case no motion to strike the officer's testimony was made after the identity of the informer was refused, and neither in his objection to the introduction of the narcotics in evidence nor by argument elsewhere in the record did defendant indicate that he was relying on the refusal to identify the informer to establish the illegality of the arrest and search. The magistrate did not err in sustaining the objection to the question asking the identity of the informer, for the prosecution was entitled to elect between disclosure and having the officer's testimony struck. It was incumbent on defendant to compel this election, however, by moving to strike or otherwise making his position clear. The prosecution may have had evidence other than the information of the informer to justify the search or it may have been willing to waive the privilege of nondisclosure if its case would otherwise fail, and it was entitled to an opportunity to produce such evidence or waive nondisclosure. It was not called upon to do so, however, while evidence of reasonable cause stood unchallenged in the record. To hold that the magistrate or trial court must strike the evidence on its own motion when the objection to its has not been called to its attention would open the door to needless repetitions of preliminary hearings.’ The issuance of a search warrant is a judicial act. People v. Thornton, 161 Cal.App.2d 718, 327 P.2d 161. Under the circumstances here it appears that there was probable cause for holding the defendants to answer.

The orders are reversed.

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.