People v. Cook

Opinion

PUGLIA, P. J.

Defendant appeals from a judgment after a plea of guilty to burglary in the second degree. He challenges the trial court’s denial of his motion to suppress evidence.

In this appeal we are called upon to decide whether a residence burglar, whose crime is discovered in progress and interrupted by the police, may assert a violation of the right secured by Penal Code section 844 to the veiy victim whose property he is pillaging in order to suppress the evidence against him. The law is neither an ass nor an idiot.

1

To ask the question therefore is to answer it.

Mrs. Carol Smith lived in apartment 11 at 8037 North El Dorado, Stockton. Early one afternoon she answered a knock on her door. She was confronted by a barefoot, disheveled young woman who inquired “where Jeriy lived.” She advised that no one by the name of Jerry lived there and shut and locked her door. Shortly thereafter, Mrs. Smith observed the young woman with defendant Cook in front of apartment 13. Cook was tearing the screen off the front window of the apartment. As Mrs. Smith was about to call the police, her phone rang. She informed her caller what she had observed and he offered to call the police.

An anonymous telephone caller informed police that two people were committing a burglary at apartment 13, 8037 North El Dorado. Officer Estes of the Stockton Police Department responded to a radio call advising of a burglary in progress at that address. He arrived there some 15 to 20 minutes after Mrs. Smith had observed the forcible removal of the window screen. Officer Estes observed that the window screen had been removed and the window pried open; there were chips of wood

[689]

from the front door scattered on the ground and pry marks on the door in the area of both the locking mechanism and the deadbolt. Through the open window, Officer Estes could hear “the noise going on inside, ruffling of things going on inside;” he could also see movement.

Officer Estes entered the apartment through the unlocked front door. Defendant was seated on the sofa and the unkempt young woman, Mary Elizabeth Marchand, was in the back bedroom. A bedspread was laid out on the living room floor. On it were numerous items of clothing and a camera. A stereo set had been removed from its shelf. In the living room were two suitcases that had been packed with clothing and other personal property. In the bedroom, the drawers in a chest had been pulled open. Numerous items including jeweliy cases, a shotgun and shells and items of clothing had been thrown upon the bed. Officer Estes arrested defendant and Marchand for burglary. Marchand had a screwdriver on her person and defendant had four watches and other items of jewelry in his pockets. The information received on the radio by Officer Estes and his observations outside apartment 13 amply support a reasonable belief that a burglary was in progress within. Furthermore there was probable cause for the arrests.