People v. Neal

ASHBURN, J.

Defendant was convicted of two counts of violation of section 337a, Penal Code, i.e., bookmaking. She was sentenced to the county jail on each count, sentences to run concurrently, same suspended and probation granted.

[306]

Appeal was taken from the judgment and an order denying her motion for new trial.

Appellant’s counsel argues that the police searched her apartment without probable cause and without her consent; also that it was error to receive in evidence certain betting paraphernalia then seized.

The vital question is that of consent, which is an issue of fact where there is conflicting substantial evidence

(People

v.

Gorg,

45 Cal.2d 776, 782-783 [291 P.2d 469];

People

v.

Smith,

141 Cal.App.2d 399, 402 [296 P.2d 913]). We are confronted here with a conflict such as to convince us that the trial judge’s finding of consent must be upheld.

The contention of the respondent is that appellant opened the door in response to the officers’ ringing of the door bell and when they showed a police badge and said they would like to talk to her, she said "Okay, ’ ’ stepped back and opened the door wider in an implied invitation for them to enter; that they entered and Sergeant Walters looked through the dining room (which they first entered) into the kitchen and there saw familiar bookmaking paraphernalia. If this was the whole story there was no illegality in the seizure which was then made.

(People

v.

Roberts,

47 Cal.2d 374, 379-380 [303 P.2d 721].)

Before arrival at the apartment building in which defendant lived the officers had only her telephone number and address; they had not staked out the premises nor seen any suspicious activities around it; did not know defendant and had no probable cause for a search of her residence. Counsel stresses the fact that no one specifically said “may I come in” or “come in” or “may I search.” These are but elements in the factual problem whether defendant consented to the entry of the police into her dining room, and the court was justified in drawing the inference that her stepping back and opening the door wider when the police said they wanted to talk to her was an invitation as well as consent.