People v. Cahan

California Court of Appeal

People v. Cahan

310 P.2d 661, 150 Cal. App. 2d 786, 1957 Cal. App. LEXIS 2241

CourtCalifornia Court of Appeal

DecidedMay 13, 1957

DocketCrim. 5758

StatusPublished

Cited by7 cases

This text of 310 P.2d 661 (People v. Cahan) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Cahan, 310 P.2d 661, 150 Cal. App. 2d 786, 1957 Cal. App. LEXIS 2241 (Cal. Ct. App. 1957).

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Opinions

DORAN. J.

As recited in appellant's brief, "Mrs. Springer, of 3861 Brunswick Avenue, telephoned the police on November 3, 1955, to come to her home. The defendant Marsh was her son; she had raised the defendant Cahan. Neither lived with her at that address. She resided there with her husband. On arriving, the police were admitted into her home. Neither of the defendants was present at that time. There were quite a few officers. After some conversation two of the officers stayed in the bedroom at the said address, and Mrs. Springer left. Defendant Marsh arrived and was to be engaged in bookmaking by the two police officers from their vantage point in the bedroom. He was arrested and taken from the house. Subsequently, Mr. Cahan arrived and was observed by the two officers from their vantage point in the bedroom to be engaged in bookmaking, and he was arrested.

“Both arrests were made without a warrant for either

“Issue

“The sole issue is whether or not consent to the officers was voluntarily given to enter, to remain, to search, and to hide; or whether or not there was a submission on the part of Mrs. Springer to an express or implied assertion of authority by the police officers.

“Dependant’s Contention

“It is defendant’s contention that Mrs. Springer submitted to the implied assertion of authority of the police officers and did not voluntarily consent to the police officers hiding in her house or searching the premises.” It is further argued by appellant, “It is defendant’s contention that consent to enter is not consent to search or remain or hide on the premises; that consent to remain is not consent to hide. Defendant further contends that Mrs. Springer consented freely only to the officers entering to see if the defendants were on the premises, that thereafter her consent to the officers remaining and hiding was not voluntarily given, if given at all.”

Respondent, on the contrary, points out that, “When the officers arrived “Her reason for phoning the police department and inviting the officers into her home was because she was afraid. She had the ‘fear of having that phone taken out and [788]*788having that phone disrupted. ’ Something was going on at her house which she didn’t like and that something involved people using her telephone.” . . . “Appellant’s only contention is that Mrs. Springer did not voluntarily consent to the officers remaining and hiding in her home. He doesn’t argue that there wasn’t probable cause for an arrest without a warrant. It is undisputed that the officers observed appellant Cahan carrying on bookmaking activities, a felony, in their presence, and since the officers were properly in the house at the time the arrest was proper. (Pen. Code, § 836, subd. 1.)

“What was a lawful entry does not become trespassory merely because the officers heard damaging declarations and observed incriminating activity.

“A careful examination of the evidence introduced against appellant Cahan shows clearly that it was not obtained by unlawful search and seizure. ’ ’

Although the judgment may be regarded by some, as rather severe, in the circumstances, nevertheless that issue is not open to discussion on appeal. Inasmuch as no prejudicial errors appear in the record the judgment is affirmed.

White, P. J., concurred.

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DORAN. J.

As recited in appellant's brief, "Mrs. Springer, of 3861 Brunswick Avenue, telephoned the police on November 3, 1955, to come to her home. The defendant Marsh was her son; she had raised the defendant Cahan. Neither lived with her at that address. She resided there with her husband. On arriving, the police were admitted into her home. Neither of the defendants was present at that time. There were quite a few officers. After some conversation two of the officers stayed in the bedroom at the said address, and Mrs. Springer left. Defendant Marsh arrived and was to be engaged in bookmaking by the two police officers from their vantage point in the bedroom. He was arrested and taken from the house. Subsequently, Mr. Cahan arrived and was observed by the two officers from their vantage point in the bedroom to be engaged in bookmaking, and he was arrested.

“Both arrests were made without a warrant for either

“Issue

“The sole issue is whether or not consent to the officers was voluntarily given to enter, to remain, to search, and to hide; or whether or not there was a submission on the part of Mrs. Springer to an express or implied assertion of authority by the police officers.

“Dependant’s Contention

“It is defendant’s contention that Mrs. Springer submitted to the implied assertion of authority of the police officers and did not voluntarily consent to the police officers hiding in her house or searching the premises.” It is further argued by appellant, “It is defendant’s contention that consent to enter is not consent to search or remain or hide on the premises; that consent to remain is not consent to hide. Defendant further contends that Mrs. Springer consented freely only to the officers entering to see if the defendants were on the premises, that thereafter her consent to the officers remaining and hiding was not voluntarily given, if given at all.”

Respondent, on the contrary, points out that, “When the officers arrived “Her reason for phoning the police department and inviting the officers into her home was because she was afraid. She had the ‘fear of having that phone taken out and [788]*788having that phone disrupted. ’ Something was going on at her house which she didn’t like and that something involved people using her telephone.” . . . “Appellant’s only contention is that Mrs. Springer did not voluntarily consent to the officers remaining and hiding in her home. He doesn’t argue that there wasn’t probable cause for an arrest without a warrant. It is undisputed that the officers observed appellant Cahan carrying on bookmaking activities, a felony, in their presence, and since the officers were properly in the house at the time the arrest was proper. (Pen. Code, § 836, subd. 1.)

“What was a lawful entry does not become trespassory merely because the officers heard damaging declarations and observed incriminating activity.

“A careful examination of the evidence introduced against appellant Cahan shows clearly that it was not obtained by unlawful search and seizure. ’ ’

Although the judgment may be regarded by some, as rather severe, in the circumstances, nevertheless that issue is not open to discussion on appeal. Inasmuch as no prejudicial errors appear in the record the judgment is affirmed.

White, P. J., concurred.

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310 P.2d 661, 150 Cal. App. 2d 786, 1957 Cal. App. LEXIS 2241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cahan-calctapp-1957.

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