People v. Delaney

FILES, P. J. Counts I and II of the information charge defendant with receiving stolen property (Pen. Code, § 496). Counts III and IV charge possession of checks with intent to defraud (Pen. Code, § 475a). The stolen property consists of checks and business machines (count I) and a eheckwriter (count II). The information also alleges that defendant has suffered four prior convictions. Defendant pleaded not guilty, denied the priors and waived a jury trial. The trial court found him guilty on all counts, found all priors to be true, and sentenced defendant to state prison. This appeal is from the judgment.

Facts

Prior to February 1, 1963, the police received information that a man known as Bob Carter was in possession of some stolen blank payroll checks. They watched Carter and saw that he associated with defendant. On January 31, 1963, two officers searched their informant, then gave him $15 and watched him enter defendant’s apartment. When the informant came out 15 minutes later he delivered three checks which he said he had purchased from defendant.

On February 1, 1963, at about 5:45 p.m. police officers went to the vicinity of defendant’s apartment and waited. Defendant arrived about 7:15 p.m., and as he stepped out of his automobile he was arrested. Defendant was then escorted into the building, and sometime thereafter (the evidence is in conflict as to the time) the officers searched the apartment. A eheckwriter and two forged checks were found as a result of that search.

At about 8:10 p.m. another officer arrived with a search warrant which authorized a search of defendant’s automobile. The warrant was displayed to defendant and his car was searched. In it were two parcels containing approximately 1,300 blank checks of M and J-Morrison-Knudson Joint Venture. They were identical in form with the two completed checks which were found in defendant’s apartment.

It was stipulated that other witnesses, if called, would testify that the eheckwriter and the checks were missing from the premises of the respective owners without permission and that the signatures on the two completed checks were unauthorized.

The Search of the Apartment

Assuming that the arrest was lawful, the search of the apartment cannot be justified as incidental to the arrest. [124]The trial court should have sustained the objection made by the public defender to the introduction of the cheeks and checkwriter found there on the ground that they had been obtained illegally. (People v. Cruz, 61 Cal.2d 861 [40 Cal.Rptr. 841, 395 P.2d 889].) This case was tried before the Cruz opinion had come down, and both the prosecutor and the trial judge proceeded upon the assumption that the arrest in the car justified a search of the apartment.