People v. Magana

THOMPSON, J.

A burglary occurred at the home of John Michael Burgio in Whittier on September 11, 1967. On September 21, 1967, appellant was stopped on the street in Monterey Park by Officer James Young. Young escorted appellant to a spot opposite appellant’s automobile and arrested him under circumstances which, for the purposes of this appeal, are conceded by respondent to be unlawful.

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Young handcuffed appellant and advised him of his rights according to

Miranda.

Appellant acknowledged his understanding. At about that time, Officer Ritterhoff arrived at the scene and three or four minutes later asked appellant why he was nervous. Appellant replied, 11 Because of the gun in the car.” The officers then searched appellant’s automobile and found a .22-caliber pistol which was later discovered to be part of the loot in the burglary of the Burgio residence. Appellant was transported to jail and charged with burglaries committed in Monterey Park. He was still in custody on September 28. At that time he was questioned by officers of the Whittier Police Department. After a

Miranda

warning appellant confessed to the Burgio burglary when confronted with the .22-caliber pistol.

Preliminary hearing was held October 11, 1967. Evidence of the corpus delicti of the burglary and of appellant’s confession was introduced, and appellant was bound over for trial. Subsequently, appellant’s motion in the superior court to suppress evidence of the pistol and his confession was denied. The matter was then submitted on the transcript of the preliminary hearing, and appellant was found guilty. This appeal followed.

Appellant contends that his confession was illegally

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obtained on two grounds: (1) the confession was the fruit of an illegal search in that the confession was induced by police possession of a pistol that was unlawfully obtained; and (2) he was improperly questioned after having claimed the right to remain silent. We reject those contentions.