PEOPLE v. KANEVSKY

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

The PEOPLE, Plaintiff and Respondent, v. Vladimir KANEVSKY, et al., Defendants and Appellants.

D001718.

Decided: February 15, 1985

Edwin L. Miller, Jr., Dist. Atty., and Peter C. Lehman and Paul M. Morley, Deputy Dist. Attys., for plaintiff and appellant. Peter S. Doft, San Diego, under appointment by the Court of Appeal, for defendants and respondents.

RING'S RING AND THE CASE OF THE ELUSIVE NECKLACE

I

The People charged Vladimir Jacobson and Vladimir Kanevsky with attempted grand theft (Pen.Code, §§ 487.1 and 664) and burglary (Pen.Code, § 459).   Asserting they were arrested without probable cause, defendants asked the court under Penal Code section 1538.5 to suppress all evidence seized as a result of their arrest.   After an evidentiary hearing the court granted defendants' motion.   The court then dismissed the matter under Penal Code section 1385.   The People appeal (Pen.Code, § 1238, subd. (a)(7)), contending the court erred in finding the police arrested defendants without probable cause.

II

 We recite the evidence most favorably in support of the superior court's order to suppress (People v. Williams (1975) [BOURBON'S NOSE KNOWS, OR THE CASE OF BOURBON'S BUST] 51 Cal.App.3d 346, 348, 124 Cal.Rptr. 253).

III

On February 13, 1984, defendants entered a San Diego jewelry store offering to sell rings to the store's owner, Arthur Ring.   Jacobson said he was Czechoslovakian and a friend with diplomatic immunity had brought the rings into the United States.   Ring rejected the offer and similar offers on the next two days, saying he needed something more modern.   Ring, a reliable citizen with 33 years experience as a jeweler, contacted the FBI and San Diego police because he suspected something was not legitimate.   Ring had helped the police on several investigations in the past.

On February 16, 1984, Detective Sergott, an officer in the special investigations unit dealing with property crimes and surveillance, visited Ring's store.   Ring told Sergott he believed the defendants were going to pull some type of scam on him;  “something was coming down ․ it might be big.”   Sergott was assigned as case agent to supervise the investigation.

Later the same day, defendants returned to the store and told Ring he must show “good faith” by buying something if he wanted to see something “really nice.”   Ring bought a ring for cash.   Defendants gave Ring the ring in a sealed envelope with Jacobson's alias “Michael Laslo” signed across the seal.   Defendants told Ring not to open the envelope until their “boss” approved the sale.

When defendants returned to the store to tell Ring their “boss” had approved the sale, the police began surveilling the defendants.   The police followed defendants on a circuitous route to their car with New York license plates.   Defendants appeared to be looking over their shoulder for “a tail.”   A driver waited for the defendants in their car.   By radio the police checked local and national license plate records and found “no hits.”   The police followed defendants to a Balboa Park restaurant where they saw defendants “doing something with paper.”   The police then followed defendants to a nearby park bench and saw them “doing something” involving an envelope, glue and writing utensils.   Defendants threw something into a trash can.   When defendants left the park area, the police searched the trash and found the items defendants threw away, including a white envelope torn in half and three small ziplock bags marked with karats and prices.

Before the defendants returned to the jewelry store, Detective Sergott entered the store and arranged with Ring to hide behind a door about 8 to 10 feet from any customers and Ring.   Sergeant Barone, a plain-clothed police officer, was also inside the store posing as a customer.

The police followed defendants back to the jewelry store.   Jacobson and Kanevsky were let out in front of the store and the driver left with the car.   Defendants entered the store and Ring asked if they wanted to talk to him.   Defendants replied “after that gentleman leaves.”   Barone then left the store.   Jacobson removed a diamond necklace from his pocket and offered it to Ring.   Defendants asked $45,000 for the necklace Ring appraised at between $100,000 and $150,000.   Ring said for a “cut” he would arrange a meeting later that day with a partner to buy the necklace.   Defendants said only Ring and his partner could be present at the meeting;  there would be “no deal if any more people” were present.   Defendants and Ring agreed the sale terms would be cash with “no names, no questions, no receipts, no nothing.”   No pawn slips were to be turned in.   Detective Sergott, hiding in the store's backroom, overheard the conversation about the necklace.

Defendants left the store and drove away in their car.   Detective Sergott and Officer Belitnikoff, who had seen defendants activities in the park, believed a confidence scam was taking place.   Detective Sergott, fearing defendants might be lost in surveillance with their New York license plates, ordered the arrest.   The police stopped defendants' car, drew their guns, ordered defendants outside and arrested them.   The police searched Kanevsky and found a white sealed envelope.   There was a mistake in writing on it and it contained a necklace with cubic zirconiums but was otherwise identical to the necklace defendants offered Ring.   An envelope identical to the one found on Kanevsky, with an identical mistake in writing, was in plain view in the car.   Under the car's front seat the police found a coin purse containing the necklace with real diamonds.

IV

 In ruling on a motion to suppress evidence, the superior court must “find the facts” relating to the challenged search and seizure;  the court must determine what the police officers actually perceived, knew or believed, and what action they took in response.   The court must then determine on the facts found whether the search was with probable cause.   The superior court's factual findings will be upheld on appeal if they are supported by substantial evidence (People v. Leyba (1981) 29 Cal.3d 591, 597–598, 174 Cal.Rptr. 867, 629 P.2d 961).

 The ultimate responsibility of the appellate court is to measure the facts, as found by the superior court, against the constitutional standard of reasonableness.   The appellate court exercises its own independent judgment as to whether on such facts probable cause existed (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621).

 Probable cause means a state of facts “as would lead a man of ordinary care and prudence to believe, and conscientiously to entertain, an honest and strong suspicion” that a person is guilty of a crime (People v. Campa (1984) 36 Cal.3d 870, 880, 206 Cal.Rptr. 114, 686 P.2d 634).   Probable cause exists where at the time the officers make an arrest or conduct a search “the facts and circumstances within their knowledge and of which they had reasonable trustworthy information [are] sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense.”   (Beck v. State of Ohio (1964) 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142.)   Probable cause also means “having more evidence for than against” and “evidence which inclines the mind to believe, but leaves some room for doubt.”  (People v. Ingle (1960) 53 Cal.2d 407, 412–413, 2 Cal.Rptr. 14, 348 P.2d 577.)   It is not limited to evidence admissible at the trial on the issue of guilt.  (Id.)

V

The People contend the police had probable cause to arrest defendants without a warrant because the officers had reasonable cause to believe defendants had committed a felony (Pen.Code, § 836, subd. (3)).  Specifically, the People contend there was probable cause to believe defendants were engaged in smuggling (18 U.S.C., § 545) and a bait-and-switch scheme constituting attempted grand theft (Pen.Code, § 487).   On this record the police properly arrested defendants with probable cause to believe they had committed the felony of attempted grand theft.

VI

 When arresting defendants, among other things the officers knew:  the defendants told Ring they were from Czechoslovakia and a friend with diplomatic immunity brought the rings into the United States;  the defendants told Ring they had no car, but in fact they had a car with New York license plates;  while returning to their car from Ring's store, defendants took a circuitous route and looked over their shoulders “for a tail”;  defendants linked up with a driver waiting in the car;  defendants did things with paper, envelopes and glue in a restaurant and on a park bench;  defendants walked around with expensive jewelry in their pockets and conducted business in a secretive manner, including not dealing with Ring when anyone else was present.   The deal involved no names, no questions, no receipts, no nothing, no pawn slips turned in to the police.   Based upon such knowledge, the police believed defendants were appealing to Ring's greed to gain his confidence as part of a bait-and-switch scheme.

Based upon such information the superior court improperly found the officers could only speculate defendants were going to commit a felony.   The record shows officers entertained an “honest and strong suspicion” a switch was imminent.   The facts construed most favorably to the defendants supports this suspicion and provide probable cause to arrest defendants for attempted grand theft.

VII

The superior court should have denied defendants' motion to suppress evidence, based upon their arrest with probable cause.

Disposition

The order is reversed.

GERALD BROWN, Presiding Justice.

STANIFORTH and LEWIS, JJ., concur.

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