Some Possible Defenses to Burglary in Georgia

This offense is a combination of a property and violent crime. Most other infractions are only one or the other. For that reason, burglary is one of the most serious felonies in Cobb County. In addition to the direct consequences, there are significant indirect consequences. When many people see “burglary,” they think of a masked man forcing his way into a house, taking what he wants, and seriously hurting anyone who gets in his way.

Because of their nature, these offenses have many moving parts. A Marietta criminal defense attorney can quickly evaluate your case and spot all possible defenses. Then, our professional team leverages those defenses in court in order to obtain a positive result. That result could be a complete dismissal of charges, a plea to a lesser included offense, or a not-guilty verdict.

Elements of the Offense

Pleas to lesser included offenses are especially common in burglary. As outlined below, there is a significant difference in punishment ranges between first and second-degree burglary. But the elements are basically the same. That similarity makes it easier to convince prosecutors to agree to a reduction.

• First Degree Burglary: If a person breaks into, enters into, and remains inside a building or vehicle, whether it is occupied or not, and intends to commit a theft or felony, that person could be charged with first degree burglary. The structure must be used as a dwelling. So, in some states, this infraction is burglary of a habitation. In Georgia, a first conviction could mean twenty years in prison.
• Second Degree Burglary: The lesser form of burglary is almost exactly the same. The only difference is that the structure need not be a dwelling. The range of punishment for a first offense is one to five years in prison. Second degree burglary often involves the violation of a no-contact restraining order.

That example brings up an interesting point about burglary. As mentioned, most people imagine masked strangers burglarizing houses. But typically, the victim knows the defendant. That dynamic increases the number of available defenses.

Possible Defenses

State prosecutors must establish guilt beyond a reasonable doubt, and all verdicts must be unanimous. So, if an attorney plants doubt in the mind of one juror, the defendant is not guilty as a matter of law.

Mistaken Identity

As mentioned, most alleged burglars have relationships with victims. But that’s not always the case. Statistically, those police sketches of suspects are, at best, 9 percent accurate. Live lineups are not much more accurate, especially if they are not double blind. If the investigating officer knows the suspect’s identity, the officer usually gives the witness subtle clues as to which person to pick.

No Complaining Witness

As mentioned, first degree burglary charges only hold up in court if the victim or owner testifies that the place was a dwelling. Most people relocate frequently. So, by the time the case goes to trial, the key complaining witness could be outside the court’s subpoena range.

Some quick thoughts here. First, as in an assault case, the complaining witness cannot “drop” charges. Only prosecutors can do that. Second, never “encourage” witnesses to not testify or change their stories. When these efforts come to light, and they almost inevitably will, a burglary charge will be the least of your worries.

Consent

Almost no one consents to theft or violence. But many people consent to entry. In terms of burglary cases, the classic examples include guests who steal things and dates who go too far. In these situations, the defendant might be guilty of something, but the defendant is not guilty of burglary.

Breaking and Entering

These points are extremely technical. Most states use the curtilage rule. If you break the curtilage, you are breaking and entering. Reaching into the open bed of a pickup truck is an example. But Georgia is different. Defendants must enter the structure in the ordinary sense of the word.

Assume Felix goes to his ex-wife’s house to confront her. He breaks a window and unlocks the door. But before he walks inside, he has second thoughts, and leaves. In many states, Felix would be guilty of burglary, because he broke the curtilage. But not in Georgia. In the Peachtree State, Felix is only guilty of attempted burglary.

On a related note, the degree of force used can be very minimal. Assume the door was unlocked, Felix went inside, and confronted his ex-wife. Felix still broke into the house. However, consent to enter might be a defense, as outlined above.

Voluntary Intoxication

In most cases, voluntary intoxication is not a defense. But burglary is a specific intent crime. The defendant must intend both the conduct (breaking into the house) and the result (committing a felony or theft). Legally, intoxicated individuals cannot formulate the necessary dual intent. Alcohol clouds their minds too badly. Once again, these defendants might be guilty of something, but they are not guilty of burglary.

Procedural Defenses

Burglary is usually an investigatory offense. By the time police arrive, the suspect is long gone. During their quest to get the bad guy, many officers take illegal shortcuts.

Failure to Mirandize is one of the most common procedural defenses. Before custodial interrogation begins, officers must inform defendants of their Miranda right (you have the right to remain silent, etc.) People are in custody the moment they do not feel free to leave. Additionally, many officers know how to interrogate suspects without asking direct questions. So, unless the Miranda warnings come very early, any evidence the police discover or confessions they obtain could be inadmissible.

Lack of a valid search warrant is another issue. A victim’s uncorroborated testimony probably does not amount to probable cause. Anyone can say anything about anyone else. Corroboration includes things like physical evidence at the scene, such as a hat, or a witness’ testimony. Without these things, the warrant might be invalid.

Procedural defenses torpedo cases. Investigators can always backtrack to collect more evidence. But no one can turn back the clock and fix a procedural mistake.

There are a number of possible defenses to serious burglary charges. For a free consultation with an experienced criminal defense attorney in Marietta, contact The Phillips Law Firm, LLC. After-hours, virtual, and jail visits are available.