CL -Ch 31. Burglary and B&E Flashcards
Burglary and B&E
Five key elements to consider:
- breaking
- entry
- Property (of another)
- intent
- time
The suspect commits a “break” by physically engaging in any act:
designed to enter.
- This includes moving anything that bars the way into a building or vehicle
Ex. forcing a door open, breaking a window, or even opening an unlocked window or door.
Is inserting a key into a lock a break?
Yes.
Entry through an opening not intended as an entrance is a:
break.
Going through an unobstructed entrance- such as a wide open door- is:
not a break.
The suspect also commits a break if an accomplice lets him in, or if he convinces an innocent person by (blank) or (blank) to allow him to enter.
trick or threat.
Ex defendant said he was “Gerry”, the victim’s brother, to get her to open the door to her apartment so his friends could commit a robbery; his lie was a break because it caused her to open the door.
The unlawful making of one’s way into a building or vehicle.
Entry.
Entry occurs if any part of the suspect’s (blank) physically enters the interior space of a building or vehicle.
Body (even a hand or foot)
Ex defendant placed his foot in the doorway of the victim’s apartment, preventing him from closing the door.
Entry also occurs an (blank), which is used to commit the intended felony, physically enters the interior of the building or vehicle.
Instrument.
Ex. defendant threw a bottle of gas into apartment. The sole evidence of entry was the bottle thrown through a broken window. Since the device was being used to commit the intended felony (in this case murder) the court found that an entry, along with the obvious breaking, had occurred.
Entry also occurs if an instrument, which is used to commit the intended felony, physically enters the interior of the building or vehicle.
However, if the instrument which crosses the threshold is only used to accomplish the break, there is no entry. Under these circumstances, what would the strongest charge be?
Attempted B&E.
B&E related
The break and entry typically happen simultaneously. However, they may be separated by:
a period of time.
Ex. suspect opens a door, hears someone, hides and waits for a half hour, and then walks in through the open door.
B&E related
Sometimes, officers catch the offender inside the building. However, most of the time, officers rely on (blank) to prove their case.
circumstantial evidence
Ex call for loud crashing noise. Officer saw footprints in snow circling the house. Followed footprints to nearby cab office. Got address of last drop off. Went to house and saw similar foot prints in the snow. Followed wet spots on carpet to an apartment. Officer saw clothing similar to what was described hanging up, soaking wet, and zipper was cold. Witness said suspects build and clothing were similar = sufficient for conviction
Fingerprints, footprints, or DNA may prove B&E:
Footprints: The government must prove:
the footprints were left at the time of the crime.
Fingerprints, footprints, or DNA may prove B&E:
Fingerprints: fingerprints on glass window in (blank) insufficient proof that the defendant broke in
public area.
Fingerprints, footprints, or DNA may prove B&E:
DNA was found on a hat, gloves, cigarette, and beer can at the scenes of 4 break- ins; given the personal nature of these items, it was most likely that
suspect left them there himself.
May GPS prove B&E?
Yes.
Ex victim returned form vacation to find her front door lock broken. Jewelry boxes and a pillow case missing. Police get a lead, they contact probation and get the suspects coordinates. GPS data reveals that he was in the victims home for 30 min. = no reason for him to be there
A dwelling is a place where:
people live.
An unoccupied apartment is a dwelling when tenants have:
the right to move in.
*even if they have not done so.
True or false:
A secure common hallway may be part of a dwelling.
True.
Ex defendant properly convicted of home invasion when he entered the hallway of a two family house. Even though he never made it to the second floor apartment of his friend- where he intended to seek revenge- the court felt that this hallway was private enough to be viewed as part of her overall home.
Even if it is not a dwelling, a hallway is still inside the:
building.
ex. Comm v Stallings: Defendant caught in the hallway of an apartment complex; it was irrelevant that he never entered the victim’s apartment because he was charged with breaking and entering into a building; the hallway was part of the building
Are “outhouses” such as barns considered part of the dwelling?
Yes.
Is an occupied motel room a “dwelling”?
Yes.
True of false:
Separate apartments within a multi-unit building count as separate dwellings.
True.
ex defendant convicted of two B&E’s when he broke into two separate apartments within the same multi-unit house.
Expanded right of self- defense in a dwelling: Because the right of privacy in the home is so highly regarded, 278 Sec 8A authorizes occupants to defend themselves in their homes against unlawful intruders- without having to:
retreat.
Castle Law
B&E related
Aside from dwellings, statutes protect (blank), (blank), and (blank).
buildings, vehicles, and vessels.
Note: Remember, it is an element of the offense to prove the particular structure, vehicle, or vessel entered.
B&E related
May a structure without a roof still be a building?
Yes.
Home depot example- the area shared a wall with the roofed-in portion and was enclosed by a fence. It was part of the building.
B&E related
Property must “blank”, the the owner’s identity need not be shown.
“belong to another”
The basis for a B&E crime is not that the property belonged to a particular person, but rather that it:
did not belong to the suspect.
Officers must simply show that the suspect had no right to be on the premises or in the vehicle.
Suspect must have no “blank” at time of entry. The issue usually arises in cases lodged against a former spouse or partner. Remember, “a marital relationship does not preclude a conviction for burglary.
“right of occupancy”
Suspect must have no “right of occupancy” at time of entry. The issue usually arises in cases lodged against a former spouse or partner. Remember, “a marital relationship does not preclude a conviction for burglary. Consider the following factors in determining whether the suspect had a right to enter: (6)
- The marital status of the parties (pending divorce, separation)
- The existence of any legal orders against the suspect (209A, etc)
- Extended periods of separation
- The names on the lease, rental agreement, or title
- The method to gain entry; (can prove suspect knew he didn’t have a “right of occupancy” ) ; and
- Any acknowledgement by the suspect that he should not have entered.
Overnight counselors at a facility for the intellectually disabled received regular visits from the defendant. A supervisor became concerned that the defendant’s visits violated agency policy. When told to leave, the defendant became enraged and stabbed a staff member. While the assault was a separate crime, should the defendant be charged with B&E?
No. A past relationship may result in the suspect’s reasonable belief that he had the right to enter.
Here, the defendant’s prior history entitled him to believe that he had permission to enter the facility that night.
B&E related
Consensual entry does not occur when the offender hides:
a weapon.
ex. defendant hid a machete and convinced his girlfriend to let him into her home; he then assaulted her- fulfilled requirements for a break and entry
B&E related
Just as the type of place affects the seriousness of the offense (ex.dwelling vs a warehouse), so too does the suspect’s:
purpose at the time of unlawful entry.
Proof of intent to commit a felony inside a home or building: Clearly, an offender’s felonious intent is shown when he actually:
commits a felony inside.
Unless there is contrary evidence, when a person enters a home or building- at ANY time of the day or night- the law presumes that he intends to:
steal.
Since larceny from any building is always a felony, a suspect automatically intends to commit a felony id he plans to steal anything (value irrelevant) inside a structure.
audiobook ex. If i intend to steal a stick of gum off your desk= felony, larceny from a building
Unless there is contrary evidence, when a person enters a home or building- at ANY time of the day or night- the law presumes that he intends to steal.
Comm V Burton: Although nothing removed, the fact that defendant entered when owner was not home demonstrated:
his intent to steal.
Nighttime for B&E offenses:
1 hour after sunset to 1 hour before sunrise on the next day.
The suspect:
1. -Breaks and enters with intent to commit a felony; or
-Enters with intent to commit a felony and then breaks into:
- A dwelling house;
- In the nighttime;
- While someone is inside; and
The suspect:
5. -Arms himself with a dangerous weapon before going into OR while inside the dwelling; or
-Assaults a lawful occupant inside
Aggravated Burglary
ROA: Felony
For Aggravated Burglary, must there be an occupant?
Yes.
For Aggravated Burglary, must the suspect be armed before entering?
No. Can arm himself outside or inside.
Suspect break and enters into your Cape house because he thinks you and your family aren;t going to be there. All of a sudden, he sees your wife come down the stairs in her nightgown and she says “What are you doing in my house?” Suspect points at her and say “ Don’t come any closer, you’ll get hurt. I’m leaving”. Suspect then runs out the back door. What is the proper charge?
Aggravated Burglary.
Suspect breaks, enters, dwelling, nighttime, occupied, and “assaults” a LAWFUL occupant, wife- threatened battery, menacing conduct.
Suspect breaks and enters into your cape house at 2am. Suspect does not expect anyone to be home, that is why he chose this night and at this time. But, the suspect hears movement upstairs, and somebody upstairs, never comes down, but says, “Is somebody in the house?” Suspect picks up a knife on the kitchen table, and turns. Suspect puts the knife back down, and runs out the back door. What is the proper charge?
Aggravated burglary.
Break, enter, dwelling, nighttime, occupied, armed himself inside.
The suspect:
1. -Breaks and enters with intent to commit a felony; or
-Enter with intent to commit a felony and then breaks into;
- A dwelling house
- In the nighttime; and
The suspect:
- Is NOT armed with a dangerous weapon while in the house; and
-Does NOT assault a lawful occupant.
Burglary.
ROA: Felony
Aggravated Burglary
ROA:
Felony.
Burglary
ROA:
Felony.
Comparison of burglary and aggravated burglary: They are the same, except aggravated burglary requires:
- Occupied. An occupant inside the dwelling during the course of the burglary
- Possession of weapon (May bring weapon or arm himself inside), or;
- Assault of an occupant- simple assault will do
Aggravated Burglary:
Is suspects assaults 4 occupants inside the home, how many counts of aggravated burglary?
One.
There can only be one conviction for aggravated burglary, regardless of how many people the perpetrator assaults inside the dwelling (because only one B&E).
