People v. Szabo

• Decision Date: 25 June 1980
• Docket Number: Cr. 36279
• Citation: 107 Cal.App.3d 419,165 Cal.Rptr. 719
• Parties: The PEOPLE, Plaintiff and Respondent, v. Erzebet SZABO, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 719

165 Cal.Rptr. 719

107 Cal.App.3d 419

The PEOPLE, Plaintiff and Respondent, v. Erzebet SZABO, Defendant and Appellant.

Cr. 36279.

Court of Appeal, Second District, Division 1, California.

June 25, 1980.

Timothy S. Murakami, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Shunji Asari and Roy C. Preminger, Deputy Attys. Gen., for plaintiff and respondent.

RADIN, Associate Justice. ^*

Erzebet Szabo, appellant, and two co-defendants Joseph Csemer and Helen Csemer were charged with three counts of burglary (Pen. Code, § 459), three counts of grand theft (Pen. Code, § 487.1), three counts of receiving stolen property (Pen. Code, § 496), and one count of conspiracy to commit burglary and theft (Pen. Code, §§ 182.1, 459, 487.1).

Appellant's motion to suppress evidence under Penal Code section 1538.5 was denied, and appellant pleaded guilty to two counts of receiving stolen property. The People dismissed the remaining eight counts.

The appeal is from the judgment of conviction after denial of the 1538.5 motion.

Proceedings were suspended; appellant was granted probation on condition that she spend the first year in county jail. She was given credit for 170 days of presentence custody. A stay of execution was granted to September 26, 1980.

STATEMENT OF FACTS

On April 11, 1979, at approximately 2:30 a. m. Sergeant Jack Douglas went to the Greenberg home to investigate a reported burglary/robbery. The reporting party was the "live-in-maid," whom he discovered to be bound hand and foot when he arrived. She told him she was awakened about 2 a. m. at gunpoint by three dark-skinned males who wore masks and gloves, tied her up and ransacked the house. She described the missing items as stereo equipment, television sets, silverware, clothing, suitcases and linens.

Earlier that evening another police officer had observed an orange van with a single front license plate parked in front of the Greenberg home and had taken the license number. After the burglary/robbery, it was learned the suspicious van had been reported stolen at one time by a Joseph L. Csemer of 1550 Hobart in Los Angeles. Police officers went to that address and located the van in the subterranean garage. They observed through the front windshield a reel-to-reel tape recorder, a T.V. set and other items covered with sheets.

Sergeant Douglas arrived at the Hobart location between 4 and 4:30 a. m. From the street, he could see the garage and the rear portion of an orange van without rear license plates parked inside the garage. He drove into the garage, parked next to the van, and walked to the front of it which was parked head first against the wall. He found the front license plate to bear the same number as the one on the van parked in front of the burglarized home earlier. Using a flashlight, he illuminated the interior of the van and saw a reel-to-reel tape recorder, a large tape deck, a portion of a T.V. set and sheets, all items which matched the description of property taken from the Greenberg home. He also saw what appeared to be pillow cases full of property.

He drove out of the garage, parked his car and walked toward the apartment building to check the names on the mail boxes to determine if Joseph Csemer lived there. As he approached the building, he saw a male (Joseph Csemer) walk from the garage to the sidewalk in front of the building, look in both directions and stop when he saw Officer Douglas. The officer walked up to him, said "Good morning," and asked him if he lived in the building. He nodded.

The officer asked him if he was the manager; he said "No." He asked him if he lived there. Csemer gave a vague reply indicating he did.

The officer then asked him if he knew who owned the orange van. He indicated he did not.

The officer asked him his name two times, but each time the answer was incomprehensible except the first name started with the letter J. The officer asked him for identification; he said he had forgotten his wallet in his apartment.

The officer observed Mr. Csemer becoming agitated and nervous, and becoming concerned for his safety, he performed a pat-down search. Detecting a wallet and keyring in Mr. Csemer's pockets, he asked for identification again. The individual then produced a selective service card with the name "Joseph Csemer."

Sergeant Douglas recognized the name as the one on the stolen report, and advised Joseph Csemer he was being detained on suspicion of burglary and robbery.

A short time later co-defendant Helen Csemer exited the building and approached them. She identified herself as Joseph Csemer's wife. The officers asked her if anyone else was in the apartment. She replied no and would take Officer Douglas inside the apartment and show him.

The door to the apartment building was locked. Mrs. Csemer said she had forgotten her keys. The officer said he believed her husband had keys in his pocket and asked if she wanted him to get them. She responded, in effect, that will be fine. When Mr. Csemer's keys did not open the door, Officer Douglas entered the apartment house through the garage, opened the front door from inside for Mrs. Csemer and his partner.

As they approached the Csemer apartment, Douglas told his partner that he did not want to enter alone; Mrs. Csemer threw her hands in the air and said, "There's no men in there with guns; come on, I'll show you." Douglas told her it was not necessary, and she again responded impatiently, "Come on, I'll show you." She entered first, followed by the two officers.

Sergeant Douglas observed that the apartment was "crammed" with different items, including television sets, flatware, tea sets, expensive linens, suitcases and musical equipment. In a jewelry box that was propped open, he saw a master charge credit card in the name of Lillian Greenberg.

At this point, Mrs. Csemer was placed under arrest for receiving stolen property.

About 8 or 9 a. m., Detective Lemke arrived at the apartment. On a table he saw a photograph of appellant whom he recognized because he had interviewed her as the reporting party of a burglary at a residence belonging to a Mr. and Mrs. Alex Coleman about six months earlier. Mrs. Csemer identified the woman in the photograph as a friend, "We're from Hungary." His attention was called to a large manila envelope with the name Alex Coleman on it. While in the apartment, Detective Lemke observed two checks dated April 9 and April 11 made out to appellant, one written by Mrs. Greenberg. When asked when she saw the appellant last, Mrs. Csemer said two or three weeks before. (This was April 11.)

After returning to police headquarters and obtaining a copy of the Greenberg burglary/robbery report, Detective Lemke noted that appellant was the reporting party. He and two other officers then went to the Greenberg home, arrested appellant, took her to the Beverly Hills jail, and booked her. Among her property was a business card for a storage company with a locker number and a telephone number.

Advised of her constitutional rights, appellant responded that she did not understand. The officer then asked her if she had rented a storage locker in the Silverlake area. She replied she had. He asked her if he could look inside the locker. She replied he could. He asked her where the key was; she said in her property that had been booked. He found it, showed it to her, and asked if it was the key to the storage locker. She replied it was. When asked her if she would consent to a search of the locker, appellant consented.

In the locker Officer Lee found various items of property, including items which had been stolen from the Coleman house when appellant worked for the Colemans.

CONTENTIONS

Appellant contends that all evidence obtained as a result of each of the following errors should be suppressed:

1. The officers' observations of the contents of the van constituted an unreasonable search.

2. The detention of Mr. Csemer was unlawful.

3. The pat-down search of Mr. Csemer was unlawful.

4. Co-defendant Helen Csemer did not voluntarily consent to the entry of her apartment.

5. Even if the entry was lawful, the search exceeded the scope of the consent.

6. The arrest of appellant was unlawful.

7. Appellant's consent to search the storage locker was the product of an illegal interrogation.

DISCUSSION

A proceeding under Penal Code section 1538.5 to suppress evidence is a full hearing on the issues before the superior court sitting as finder of fact. (People v. Superior Court (Peck), 10 Cal.3d 645, 659, 111 Cal.Rptr. 565, 517 P.2d 829.)

The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court. On appeal all presumptions favor proper exercise of that power, and the trial court's findings whether express or implied must be upheld if supported by substantial evidence. (People v. Gale, 9 Cal.3d 788, 792, 108 Cal.Rptr. 852, 511 P.2d 1204; People v. Lawler, 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.)

The first issue in the chain of events leading to the appellant's arrest involved the police officer's entry into the garage of the building where co-defendants Joseph and Helen Csemer lived and their observations of the van's interior with a flashlight.

It is incontrovertible that the touchstone of the Fourth Amendment is reasonable expectation of privacy (Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576.) The appellant argues that the owner of the orange van had a reasonable expectation of privacy as to the property contained in the load portion of the van. It was parked in a private garage head first against a wall. Further, most of the property in the van was covered with sheets or pillowcases. However, police officers in the performance of their duties may, without...