by Ransom Bergen
The defendant in a preliminary hearing on Tuesday faced two felony charges for entering multiple apartments. The only thing the defendant is known to have taken from the properties, however, is some water from a gallon jug that sat in the complaining witness’s refrigerator.
The arresting officer, Officer John Grey, responded to what he had been told was a burglary-in-progress. Officer Grey found the defendant inside the kitchen of one of the units drinking from the gallon jug. He then arrested the defendant on the assumption that he was in the process of burglarizing.
After a search, Officer Grey found a set of keys on the defendant’s person which he set aside, assuming them to belong to the complaining witness. Assistant District Attorney Lee asked Officer Grey if anything else of “significance” was found either in the defendant’s possession or around the properties. Officer Grey indicated that no, nothing else was found. Deputy Public Defender Eric Fleischaker asked Officer Grey if he or someone else had submitted the keys as evidence. Officer Grey stated that he could not recall. After reviewing the police report, he said that he assumed the keys had been given to the complaining witness.
Mr. Fleischaker argued that Officer Grey’s only reason for arresting the defendant was hearsay regarding burglary, and that the probable cause for conducting the search was lacking. Simply because the defendant was seen to be shirtless and covered in dirt did not mean he had broken in, nor did it imply that he intended to steal. ADA Lee countered that, as Officer Grey had been called to investigate a burglary-in-progress by the resident and owner of the unit, Officer Grey was justified in making the arrest. The judge called Officer Grey’s probable cause “thin,” but maintained Lee’s argument.
Mr. Fleischaker suggested that this was just one of many aspects of this case about which Lee and Officer Grey made too many speculations and assumptions. Fleischaker posed several questions to Officer Grey and another witness in order to point out that the defendant’s intent in entering the complaining witness’s property could not be deduced with any certainty.
No witness could remember with certainty if the defendant was wearing shoes. If he was not wearing shoes, that made the feasibility of burglary less likely, given the obstacles the defendant would have had to bypass to break in. The defendant was reportedly covered in dirt, but were there streaks on his arms that he might have received hoisting himself through a window? No witness could say. Officer Grey mentioned that he assumed the keys he found when searching the defendant belonged to the complaining witness, but no witness called on Tuesday afternoon actually knew if this were true, nor were they present at the time the keys were given to the complaining witness after the arrest. The keys might unlock a completely different building, yet it was assumed that they belonged to the complaining witness.
What’s more, since the defendant wore a pair of blue jeans but no shirt or jacket, and carried no bag at the time of his arrest, it seems unlikely he intended to steal much, if anything. He had nothing but his pockets to carry anything in. He is not known to have actually taken anything, other than the water he drank from the jug.
Another point of contention in this case is whether or not each of the complaining witness’s properties the defendant entered were residential. If so, that is a first-degree crime. If not, then it is a second-degree crime.
One unit was certainly residential. The complaining witness and a different witness both live in it. That witness (not the complaining witness) testified that the other units were at most only lived in on occasion. The complaining witness makes use of one as an office, and the other is for guests, but it was not occupied at the time of the alleged crime.
Lee argued that both these units, while not the actual dwelling of the complaining witness, are occupied often enough to warrant being defined as residences.
Fleischaker disagreed, saying that an office space might have a frequent occupant, but is not a residence, even if that occupant happens to sleep there on occasion. Moreover, as no guests were staying in the other unit at the time of the alleged burglary, it also cannot be called a residence.
Citing the testimony of all three witnesses, Fleischaker pointed out that the defendant did not engage with anyone in any hostile way. Before drinking from the gallon jug, he was reported to have said only one thing, which the witness did not understand and could not recall. The defendant did not threaten this witness or the complaining witness, approach them, or interact with them at all, instead moving straight to the refrigerator to procure the water. Later, he allowed himself to be arrested without any issues.This behavior is not consistent with a typical burglary, and the defendant’s intentions cannot be derived from them. Speculating that the defendant was trying to burglarize has no more foundation than speculating that he was in the midst of a mental breakdown or on drugs. He could have had a thousand different reasons for being in the complaining witness’s unit, drinking from that gallon of water. Burglary is not the only explanation.
After hearing Fleischaker’s argument, the judge determined that the defendant will be tried for only one felony burglary charge. The other felony and misdemeanor will be dropped. The defendant will remain in custody.
Moving forward from this preliminary hearing, many questions are yet unanswered. How and where did the defendant enter each unit? What was his object in doing so? Even after the testimonies of multiple witnesses, the facts of the case are still as mysterious as they are bizarre.
