Metter police are looking for a naked man who has burgled several houses in the area in recent weeks. That’s something you don’t see every day.
“He’s found things that allowed him access to the house. He’s looking for windows, looking for keys, looking for open doors,” Police Chief Robert Shore remarked. “It’s hard to know if you’re dealing with mental illness, are you dealing with some kind of substance abuse,” he added. He also urged people across the city to lock their doors at night and keep any spare keys inside.
According to police, the thief takes very little from the homes, if anything.
Burglary in Georgia
These offenses rarely involve masked rapscallions who steal valuables. In most cases, they’re unmasked rapscallions who have no intention of taking anything. Most burglary cases involve domestic disputes and the violation of a protective order.
Protective orders routinely include keep-away orders that forbid the defendant from entering the alleged victim’s residence. Violation of a protective order is normally a felony. So, this breaking and entering satisfies the key elements of a § 16-7-1 offense, which are:
- Entering or remaining in an occupied, unoccupied, or vacant building, watercraft, structure, railroad car, or aircraft,
- Without permission, and
- With the intent to commit theft or any felony.
First-degree burglary of a habitation is punishable by up to twenty years in prison. Second-degree burglary of a non-habitation is punishable by up to five years behind bars.
Significantly, the “entering” requirement doesn’t mean forcibly entering. It could include opening an unlocked door or using a key to open a locked door. That latter instance is especially common, and burglary charges may hod up in court in these situations.
Assume Alice obtains a protective order against Ralph, which requires him to vacate their shared residence. However, Ralph still has a key to the house. He uses his key to visit the house while Alice is at work, starts Alice’s dishwasher, does a load of laundry, and leaves.
In the eyes of most people, Ralph hasn’t done anything wrong. But in the eyes of the law, he has committed first-degree burglary. Entering Alice’s house, or even pulling onto her driveway for that matter, was a felony. It doesn’t matter what he did inside her house. Furthermore, although he had a key, the protective order revoked his permission to enter her house.
This 2014 ruling is consistent with previous rulings that broadly interpret the burglary statute. For example, in 2005, an appeals court upheld the burglary conviction of a man who stole tools out of open garages. He didn’t use any force to enter these garages, but he didn’t have permission to enter them either.
Attacking the Evidence
Since prosecutors don’t need much evidence to prove burglary, a Marietta criminal defense lawyer often cannot successfully challenge the sufficiency of the evidence. However, prosecutors cannot introduce illegally obtained evidence. So, a procedural defense often almost guarantees a successful result.
The revocation-of-permission case might have involved a Fifth Amendment defense. When Alice came home and called the police, they probably immediately focused on Ralph. Disgruntled exes are usually the primary suspects in such situations.
Investigators must read defendants their Fifth Amendment rights before they ask any questions, even if the questions are unrelated to the alleged offense. Police officers hate this requirement, because once they read suspects their rights, the suspects often get defensive and lawyer up.
If they don’t properly Mirandize defendants, any evidence officers obtain is inadmissible in court. However, the Supreme Court recently added a new wrinkle. Under current law, if suspects don’t affirmatively invoke their Fifth Amendment rights (e.g. “I’m not saying anything because I have a Constitutional right to remain silent”), the defendant waived his/her rights, making the evidence admissible.
In the open garages case, investigators seized evidence from local pawn shops. Normally, physical evidence, including pawn tickets, is inadmissible unless officers have valid search warrants. Owner consent is one of the biggest exceptions to this requirement.
Stay with us here, because this argument gets technical. Who legally “owns” merchandise in a pawn shop that’s subject to redemption? It could be the pawn shop owner, as s/he has a superior right to possession until the owner redeems the property. The owner could also be the person who pawned the property, because s/he hasn’t legally assigned ownership to anyone. Therefore, the pawn shop owner may or may not have the right to consent.
All bets are off in this situation if the person sold the item to the pawn shop instead of pawning it. Furthermore, the true tool owner was probably the burglary victim, who may or may not have given proper consent to a search at a pawn shop.
Resolving the Case
Most burglary cases, and most other criminal cases, settle out of court. Frequently, this settlement involves a reduction to a misdemeanor, like trespassing. If a Marietta criminal defense lawyer convinces prosecutors to reduce charges, perhaps because a procedural defense could apply, prosecutors are usually willing to make deals instead of risk trials.
A bird in the hand is worth two in the bush. Most prosecutors would rather convict a defendant of something than risk letting the defendant go free at trial.
These options usually include pretrial diversion and deferred disposition. As the name implies, pretrial diversion is a pretrial procedure. If the defendant stays out of trouble with the law, completes some self-improvement classes, and completes other program requirements, prosecutors dismiss the case. Deferred disposition is a lot like probation. If the defendant successfully completes the probation term, the judge dismisses the case.
In each situation, the defendant still has an arrest record. However, most people don’t care about arrest records. Additionally, record sealing or expunction may be available in these cases.
Burglary is a serious offense that’s relatively easy to prove. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.
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