Stewart

Defendants Thomas White Stewart and James Arthur Thomas appeal from the judgments (orders granting probation) following their respective pleas of nolo contendere and guilty to the crime of engaging in bookmaking (Pen. Code § 337a, subd. 1), as charged in count One of the indictment filed against them. The pleas were entered after denial of their motions to suppress evidence (Pen. Code, § 1538.5), which they now assert was error. The principal issue raised on appeal is whether information acquired by a warrantless search of an apartment house trash can used in common with other tenants could properly be used as the basis for the issuance of a search warrant. Stewart also claims the search of his person incidental to his arrest was unlawful.

Facts

Both Stewart and Thomas were known by San Diego police for their bookmaking activities long before the events which led to this prosecution. It was known that Thomas had conducted “phone spots” at various locations he rented under various assumed names. In early 1972, while he was under investigation for possible bookmaking in the Pacific Beach area of San Diego, Thomas was traced to a multi-unit apartment complex located at…