The opinion
SPENCE, J.
I dissent.
The evidence admitted at the preliminary hearing clearly showed that defendant had committed, and was committing, a felony at the time of his arrest. The offense with which he was charged is in the nature of a continuing offense, as it covers any person who “keeps or occupies, for any period of time whatsoever, any . . . place . . . with a book or books, paper or papers ... or paraphernalia, for the purpose of *252 recording or registering any bet or bets, ...” (Pen. Code, § 337a, subd. 2.)
In my opinion, the evidence introduced as the result of the arrest and search was admissible on either of two grounds. First, the search was made as an incident of a lawful arrest under subdivision 2 of section 836 of the Penal Code, and was therefore a reasonable search rather than one violating the constitutional guarantee against “unreasonable searches and seizures.” (U.S. Const., 4th Amend., Cal. Const., art. I, § 19.) Second, the search was made as the incident of a lawful arrest and the arresting officers had “reasonable cause” before the arrest and search to believe that defendant had committed, and was committing, a felony. (People v. Martin, 45 Cal.2d 755 [ 290 P.2d 855 ]; People v. Boyles, 45 Cal.2d 652 [ 290 P.2d 535 ].)
In reaching the conclusion here that the challenged evidence was admissible, I deem it unnecessary to discuss the first ground above mentioned. That question was raised in People v. Brown, 45 Cal.2d 640 [ 290 P.2d 528 ], and People v. Simon, 45 Cal.2d 645 [ 290 P.2d 531 ]; and I voted for a rehearing in those cases because of doubt concerning the soundness of those opinions. The question is also presented in Badillo v. Superior Court (S. F. No. 19346), post, p. 269 [ 294 P.2d 23 ] and it will suffice to discuss it in that case. In the present case, my conclusion may be rested solely upon the second ground above mentioned.
As above stated, the evidence shows that defendant had kept and occupied, and was keeping and occupying, a place with the specified paraphernalia for the specified purpose; and the stipulation shows as a matter of law that the officers had “reasonable cause” to believe that defendant had so done and was so doing. Said stipulation, which was made by the parties for the purpose of the motion to dismiss the information shows that “Officers Nelson and Gough also knew the defendant in this case, James W. Sanders, in person, and that he was known to them as a bookmaker on horse races”; that another person had been arrested on the same premises for bookmaking on the previous day; and that the officers, immediately prior to the entry and arrest, saw defendant standing by a table with a pencil in hand and saw on the table “the kind and character of pads of paper used in that area where the record shop was located by bookmakers who make book on horse races.” If such knowledge on the part of the officers does not show as a matter of law that the officers *253 had “reasonable cause” for believing that defendant had committed, and was committing the offense charged, it is difficult to ascribe any rational meaning to the term “reasonable cause.”
To summarize, I am of the opinion that the arrest in the present case was not only a lawful arrest but also one made by the officers upon “reasonable cause”; that the search made as an incident to that arrest was therefore reasonable; and that the evidence obtained as a result of the search was therefore admissible.
I would reverse the order dismissing the information.
Shenk, J., concurred.
Appellant’s petition for a rehearing was denied March 21, 1956. Shenk, J., and Spence, J., were of the opinion that the petition should be granted.