People v. Nagel

California Court of Appeal Feb 17, 1970 No. Crim. 3726Published

Before: Brown (Gerald)

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Holding. The court held that the search of the defendants' apartment was illegal because the arrest was used as a pretext to conduct an exploratory search, and the scope of the search exceeded constitutional standards applicable at the time.

Issues

Whether an arrest warrant was used as a pretext to conduct an illegal search of the defendants' residence.
Whether the scope and intensity of the search conducted incident to the arrest violated constitutional standards.

Disposition. reversed

Quotations verified verbatim against the opinion

“It would be difficult to envisage a clearer case of an arrest being used as a pretext to search than is presented here.”

“Moreover, the search here was of an intensity and scope which violated pre-Chimel constitutional standards”

Opinion

BROWN (Gerald), P. J.

Gale Nagel appeals a judgment, after jury trial, convicting her on three counts of grand theft (Pen. Code, § § 484-487). She does not challenge the sufficiency of the evidence supporting her conviction. She contends the court erroneously admitted evidence which the police seized during an illegal search.

Mrs. Nagel worked as a medical receptionist. The crimes for which she was convicted involved thefts from three of her doctor employers. She accomplished her thefts by setting up bank accounts, each in the name of an employer and a fictitious name jointly. She would divert checks received from patients into these accounts, then withdraw the funds using the fictitious name which she would assume for that purpose.

The activities of Mrs. Nagel and her husband (a codefendant below on one of the grand theft counts) became the subject of investigations both by local law enforcement and federal postal authorities. Two of the investigators, Detective Leonard E. Marshall of the City of Orange police

[460]

and Arthur John Teply, an investigator for the Orange County District Attorney’s office, discussed the possibility of getting a search warrant to search the Nagels’ apartment. They talked with a Mr. Briggs, who apparently is an administrative officer of the district attorney’s office or City of Orange Police Department, through whom search warrant applications must clear before they were to be presented to a magistrate. Briggs inquired where Teply and Marshall wanted to search and what particular items they were seeking. Teply and Marshall explained they did not know the exact location of any records. Briggs refused to “give” them a search warrant to go on a fishing expedition.

Detective Marshall described on cross-examination what transpired after Briggs said they could not have a search warrant.

“By Mr. Chula: Q. Was there any alternative suggested to getting a search warrant?

“A. Issue the warrant of arrest and make an arrest.

“Q. Was this discussed with Mr. Briggs at that time?

“A. No. It is the only alternative we had.

People v. Nagel

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