People v. Arketa

SULLIVAN, J.

After a trial by jury, the defendant was convicted of burglary in the second degree. He appeals from the judgment. His sole contention before us is that the court committed reversible error in admitting against him evidence obtained by illegal search and seizure.

At some time between 3:45 a. m. and 6 a. m. on August 11, 1961, Chris’ Coffee Shop in Santa Kosa was broken into and money totalling approximately $387 taken from a jukebox and two cash drawers in the upstairs office. When the owner opened the restaurant at 6 a. m. he discovered that the money had been taken and notified the police.

The report of the burglary was brought to the attention of Chief of Police Flohr of the Santa Kosa Police Department when he came on duty at 7 -.45 a. m. There had been other burglaries in Santa Kosa during the preceding three weeks, some of them in the vicinity of the above coffee shop. Chief Flohr had been acquainted with the defendant for about 10 years, knew that the defendant had committed burglaries and thefts in the past and knew that he was on parole. In addition, information came to Flohr at the time of the report that the defendant had been seen in the coffee shop at 1 a.m. that morning. Flohr accordingly decided to go to defendant's residence and question him.

The chief, accompanied by two of his officers, arrived at the defendant’s apartment about 8 a.m. All were in uniform. They did not have a search warrant. During a hearing on objections to the admission of the evidence here involved,

[196]

before the court but outside of the presence of the jury, Flohr testified that he knocked at the door and the defendant opened it. Since the other two officers were 60 to 70 feet away, he whistled to them to come over. The defendant was in shorts and a T-shirt or undershirt. Flohr said: “Amos, we have

got

problems in Santa Rosa. ... We come out to look the place over.” According to Flohr, the defendant thereupon replied: “ ‘ Come on in and go ahead. ’ ” Officer Winkler, who had been summoned by Flohr and was about 10 feet away from the door when this conversation took place, testified that “the exact conversation I’m not certain of, however, I know the Chief said: ‘Amos, we’ve got problems, is it all right if we come in and look around’ [and that the defendant said] ‘Go Ahead.’ ” The defendant testified in the course of the proceedings outside the presence of the jury that he answered the door and said “Good morning” to Chief Flohr; that the latter “made no remarks” but turned and “whistled and hollered” to the two other officers; that he did not at any time give permission to the officers to search his apartment; that “then I attempted to close the door and was unable to do so because it was obstructed by . . . Flohr’s body so then I just turned around and I proceeded down to the end of the hall and through kitchen and into my living room.”