CL -Ch 31. Burglary and B&E Flashcards
(118 cards)
1
Q
Burglary and B&E
Five key elements to consider:
A
- breaking
- entry
- Property (of another)
- intent
- time
2
Q
The suspect commits a “break” by physically engaging in any act:
A
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.
3
Q
Is inserting a key into a lock a break?
A
Yes.
4
Q
Entry through an opening not intended as an entrance is a:
A
break.
5
Q
Going through an unobstructed entrance- such as a wide open door- is:
A
not a break.
6
Q
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.
A
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.
7
Q
The unlawful making of one’s way into a building or vehicle.
A
Entry.
8
Q
Entry occurs if any part of the suspect’s (blank) physically enters the interior space of a building or vehicle.
A
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.
9
Q
Entry also occurs an (blank), which is used to commit the intended felony, physically enters the interior of the building or vehicle.
A
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.
10
Q
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?
A
Attempted B&E.
11
Q
B&E related
The break and entry typically happen simultaneously. However, they may be separated by:
A
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.
12
Q
B&E related
Sometimes, officers catch the offender inside the building. However, most of the time, officers rely on (blank) to prove their case.
A
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
13
Q
Fingerprints, footprints, or DNA may prove B&E:
Footprints: The government must prove:
A
the footprints were left at the time of the crime.
14
Q
Fingerprints, footprints, or DNA may prove B&E:
Fingerprints: fingerprints on glass window in (blank) insufficient proof that the defendant broke in
A
public area.
15
Q
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
A
suspect left them there himself.
16
Q
May GPS prove B&E?
A
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
17
Q
A dwelling is a place where:
A
people live.
18
Q
An unoccupied apartment is a dwelling when tenants have:
A
the right to move in.
*even if they have not done so.
19
Q
True or false:
A secure common hallway may be part of a dwelling.
A
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.
20
Q
Even if it is not a dwelling, a hallway is still inside the:
A
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
21
Q
Are “outhouses” such as barns considered part of the dwelling?
A
Yes.
22
Q
Is an occupied motel room a “dwelling”?
A
Yes.
23
Q
True of false:
Separate apartments within a multi-unit building count as separate dwellings.
A
True.
ex defendant convicted of two B&E’s when he broke into two separate apartments within the same multi-unit house.
24
Q
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:
A
retreat.
Castle Law
25
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.
26
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.
27
B&E related
Property must "blank", the the owner's identity need not be shown.
"belong to another"
28
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.
29
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"
30
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)
1. The marital status of the parties (pending divorce, separation)
2. The existence of any legal orders against the suspect (209A, etc)
3. Extended periods of separation
4. The names on the lease, rental agreement, or title
5. *The method to gain entry*; (can prove suspect knew he didn't have a "right of occupancy" ) ; and
6. Any acknowledgement by the suspect that he should not have entered.
31
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.
32
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
33
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.
34
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.
35
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
36
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.
37
Nighttime for B&E offenses:
1 hour after sunset to 1 hour before sunrise on the next day.
38
The suspect:
1. -Breaks and enters with intent to commit a felony; or
-Enters with intent to commit a felony and then breaks into:
2. A dwelling house;
3. In the nighttime;
4. 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
39
For Aggravated Burglary, must there be an occupant?
Yes.
40
For Aggravated Burglary, must the suspect be armed before entering?
No. Can arm himself outside or inside.
41
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.
42
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.
43
The suspect:
1. -Breaks and enters with intent to commit a felony; or
-Enter with intent to commit a felony and then breaks into;
2. A dwelling house
3. 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
44
Aggravated Burglary
ROA:
Felony.
45
Burglary
ROA:
Felony.
46
Comparison of burglary and aggravated burglary: They are the same, except aggravated burglary requires:
1. Occupied. An occupant inside the dwelling during the course of the burglary
2. Possession of weapon (May bring weapon or arm himself inside), or;
3. Assault of an occupant- simple assault will do
47
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).
48
Only one burglary per dwelling despite (blank) during the same episode.
despite multiple breaks during the same episode.
Ex. defendant entered a house through a rear door; when confronted by a male occupant, he hit him in the head; he the forced open the basement door and struck the female occupant; it was only one burglary despite two breaks and two assaults.
49
Only one burglary per dwelling despite multiple breaks during the same episode. However, a defendant may be charged with multiple (blank) on the same dwelling.
attempts.
Ex. in a single night, defendant positioned a ladder, removed a screen, and smashed a glass sliding door to try to get inside the home, failing each time; each independent act was a separate charge of **attempted burglary**.
50
The suspect knowingly entered the dwelling place of another;
While:
-Knowing or having reason to know that one or more persons are inside; or
-Entering without that knowledge, but then remaining inside after learning or having reason to know that one or more persons are present;
While aremed with a dangerous weapon; and
The suspect:
-Used force or threatened the imminent use of force upon any person in the dwelling, regardless of whether injury occurred; or
-Intentionally cause any injury to any person in the dwelling.
Home Invasion.
51
Home Invasion:
Elements (simplified)
1. Enter
2. Aware of Occupants (or remaining)
3. Armed.
4. Threatened Occupants (imminent use of force, or force, or injured)
Notice for Home invasion:
- No break required
- No nighttime requirement
- No felonious intent required
-Must be armed before
-Victim does not need to be lawful occupant
-Charges based on number of occupants assaulted.
52
Aggravated Burglary:
Elements (simplified)
-Breaks
-Enters
-Nighttime
-Occupied
-Armed (inside or outside) or Assaults
53
Home Invasion:
ROA:
Felony.
54
Burglary:
Elements (simplified)
1. Breaks and enters
2. Dwelling
3. Nighttime
55
Unlike burglary, home invasion does not require: (3)
a break, night entry, or felonious intent.
The home invasion offender must be armed BEFORE entry.
56
May an innocent object be used as a weapon for Home Invasion?
Yes.
Ex. duct tape qualified as a dangerous weapon for home invasion because the defendant brought it into the victim's house and tried to seal the victim's mouth and nose with it.
57
Home Invasion:
No consent to entry if the occupant: (2)
1. was unaware that the defendant was armed; or
2. was aware he was armed, but unaware he intended to commit a crime.
ex. victim knew defendant was a "troubled" substance abuser when she let him enter her house, but she did not know he was carrying a knife, which he used to attack and rape her.
58
Home Invasion:
May the suspect claim self- defense when an occupant uses for to repel him?
No.
59
Home Invasion:
Must an accomplice know that the principal had a weapon to also be charged?
Yes.
60
The occupant during a Home Invasion:
Must be threatened, but does not have to be:
afraid.
Once suspect threatens force, the crime is complete- whether or not he actually intends to harm the occupant, and whether or not the occupant experiences fear.
61
The occupant during a Home Invasion:
Need not be:
Lawfully present.
ex. victim was likely a drug user who entered the apartment unlawfully before being followed inside and assaulted by the defendant.
62
The occupant during a Home Invasion:
May enter after:
the defendant.
Ex. defendant entered a home to assault the residents; a neighbor came over to investigate, and the defendant stabbed him; he was properly charged with home invasion against the residents and neighbor, even though the neighbor was not an occupant and not present initially.
63
Differences between Aggravated Burglary and Home Invasion: (6)
For Home Invasion:
1. No break required
2. No nighttime requirement
3. No felonious intent required
4. Must be armed before
5. Victim does not need to be lawful occupant
6. Charges based on number of occupants assaulted.
64
Home Invasion:
The number of charges is based on:
the number of occupants assaulted.
Ex. even though there was only one entry, the intruder committed two counts of home invasion because he assaulted two people inside- his ex girlfriend and her new boyfriend.
65
Burglary Ch. 266 Sec 15
Must the dwelling be occupied?
No.
66
1. The suspect entered a dwelling
2. While armed; and
3. Committed an assault on someone in the dwelling; and
4. Had the specific intent, accompanying the assault, to commit a SEPARATE felony.
Armed Assault in a Dwelling.
Note: This charge is improper unless the assault was designed to accomplish another, *factually distinct*, felony.
Ex. the victims ran into a bedroom and held the door shit as soon as they heard the defendant and another person smash open the front door with a baseball bat; the offenders forced their way into the bedroom and threatened occupants as they ransacked the room for pills.
67
Armed Assault in a Dwelling
Elements (simplified)
1. Entry
2. Armed
3. Assault (on someone in dwelling)
4. Intend (separate) felony.
68
Armed Assault in a Dwelling
ROA:
Felony.
69
Armed Assault in a Dwelling:
True or False:
This crime can be completed in the hallway of a multi-unit apartment building that is normally accessible only to residents and building staff.
True.
70
Armed Assault in a Dwelling:
This charge is improper unless:
the assault was designed to accomplish another felony.
Ex. the victims ran into a bedroom and held the door shit as soon as they heard the defendant and another person smash open the front door with a baseball bat; the offenders forced their way into the bedroom and threatened occupants as they ransacked the room for pills.
71
Armed Assault in a Dwelling:
Having a weapon during consensual entry does not become armed assault in a dwelling, unless:
the suspect entered with the intent to attack someone.
Ex. defendant entered to visit friends and, when told to get out, spontaneously stabbed one with a knife; this was **NOT** armed assault in a dwelling.
72
True or false:
Self-defense is available to perpetrator of armed assault in a dwelling.
False. It is not.
73
B&E with Intent to Commit Felony or Breaking Depository Ch. 266 Sec 16:
Type 1:
Elements:
The suspect:
1. Breaks and enters
2. A building, ship, vessel, or vehicle
3. In the nighttime;
4. With intent to commit felony
74
The suspect:
1. Breaks and enters
2. A building, ship, vessel, or vehicle
3. In the nighttime;
4. With intent to commit felony
B&E with Intent to Commit Felony or Breaking Depository Ch. 266 Sec 16:
Type 1: B&E *Nighttime* with intent to commit felony
75
B&E with Intent to Commit Felony or Breaking Depository Ch. 266 Sec 16:
Type 2: Breaking Depository:
Elements:
The suspect:
1. attempts, or succeeds in, breaking, burning, blowing up, or otherwise injuring;
2. A depository of money or other valuables;
3. With the intent to commit a larceny or felony.
76
The suspect:
1. attempts, or succeeds in, breaking, burning, blowing up, or otherwise injuring;
2. A depository of money or other valuables;
3. With the intent to commit a larceny or felony.
B&E with Intent to Commit Felony or Breaking Depository Ch. 266 Sec 16:
Type 2: Breaking Depository
77
B&E with Intent to Commit Felony or Breaking Depository Ch. 266 Sec 16:
ROA:
Felony.
78
Burglary may be charged under B&E With Intent to Commit Felony because a home is:
obviously a building.
Prosecutors often do this because Burglary must be charged in superior court, while B&E nighttime can be pursued in district court.
79
B&E and Larceny from Building may be charged if:
theft occurred.
They do not duplicate each other.
The B&E count punishes the illegal entry, while the larceny count punishes the completed theft inside.
80
What is the "preferred charge" for attempted or actual vehicle break?
Breaking Depository Ch. 266 Sec 16 (Type 2)
Its benefits are:
1. imposes the same penalty
2. requires only an attempted break
3. during the night OR day
4. with intent to commit ANY larceny
81
Is a vehicle considered a "depository"?
Yes.
" a locked passenger automobile reasonably can be inferred to be a depository, for it ordinarily contains a radio, a glove compartment or shelf with some contents, and a trunk usually holding atleast a spare tire or tools. "
82
B&E with Intent to Commit Felony must be committed:
at night.
83
B&E With Intent to Commit Misdemeanor:
Elements:
The suspect:
1.Breaks and enters;
2. At any time of the day or night;
3. A building, vessel, ship, or vehicle;
4. With the intent to commit a misdemeanor
84
The suspect:
1.Breaks and enters;
2. At any time of the day or night;
3. A building, vessel, ship, or vehicle;
4. With the intent to commit a misdemeanor
B&E with Intent to Commit Misdemeanor
Note: the crime of trespass qualifies as the intended misdemeanor
85
B&E with Intent to Commit Misdemeanor:
ROA:
Arrest for breach of peace in presence. Otherwise, complaint.
Note: the crime of trespass qualifies as the intended misdemeanor
86
B&E of Railroad Car, Truck, Tractor, Trailer, or Freight Container:
ROA:
Felony.
87
The suspect:
1.- Enters a dwelling without breaking in the nighttime;or
-Breaks and Enters in the daytime;
2. A building, Vessel, Vehicle, Ship
3. With the intent to commit a felony; and
4. No person lawfully inside is "put in fear"
Ch. 266 Sec 18-
Enter Dwelling Without Break at Night; B&E Daytime
ROA: Felony
88
The suspect:
1. -Enters without breaking in the nighttime, or
-Breaks and Enters in the daytime;
2. A building, ship, vessel, or vehicle;
3. With the intent to commit a felony; and
4. The owner or any other person lawfully inside is "put in fear"
Ch. 266 Sec 17-
Enter Building/MV Without Break at Night; Aggravated B&E Daytime
ROA: Felony
89
Ch. 266 Sec 17-
Enter Building/MV Without Break at Night; Aggravated B&E Daytime
It is a separate element that a lawful occupant experience must be afraid as a result of the perpetrator's illegal entry. Therefore, this offense would not be appropriate if:
a suspect broke in during the day but no one was present.
Also, 266 Sec 17 requires that an occupant experience fear, but the offender does not have to INTEND that.
90
1. Entering a dwelling (breaking is not necessary)
2. in the daytime
3. by a false pretense
4. with the intent to commit a felony, or with the actual result of a larceny inside
Ch. 266 Sec 18A
Daytime Entry by a False Pretense
ROA: Felony
*This law was enacted to combat the serious problem of con artists who pretend to be home repair contractors, municipal inspectors, even disabled motorists, in order to enter homes owned predominantly by elders. Once inside, these criminals steal money and property.
91
Ch. 266 Sec 18A
Daytime Entry by a False Pretense
ROA:
Felony.
92
Gap in Law: There is no offense for:
Simple daytime entry.
Ex. the offender who just walks through an open door of somebody's house during the day- perhaps to look around and decide whether to steal something? This entry is not addressed by our statutes. The best available option is: Trepass
93
Ex. the offender who just walks through an open door of somebody's house during the day- perhaps to look around and decide whether to steal something? This entry is not addressed by our statutes.
The best available option is:
Trespass.
No Massachusetts crime applies to the offender who simply enters during the daytime with either an intent to commit a felony or misdmeanor. (closest exception is if the entry is accomplished by false pretense- then it is a felony)
94
Attempted Burglary, Home Invasion, or B&E: Ch. 274 Sec. 6
Elements:(3)
The suspect (1)had a specific intent to commit a burglary, home invasion, or any other B&E offense; and (2) took some overt act; and (3) did not complete the crime because his effort failed or was interrupted.
95
Attempted Burglary, Home Invasion, or B&E: Ch. 274 Sec. 6
Elements: (simplified)
1. Specific Intent
2. Overt Act
3. Failure
96
Attempted Burglary, Home Invasion, or B&E: Ch. 274 Sec. 6
ROA-
The right of arrest depends upon:
the penalty to for underlying offense.
97
Attempted Burglary, Home Invasion, or B&E: Ch. 274 Sec. 6
ROA: (2)
1. If attempt involves a felony which is punishable by atleast *5 year* in SP= Felony
2. If attempt involves felony punishable by less than *5 years* , or any misdemeanor= COMPLAINT
98
Apprehended after a house alarm, the K-9 tracked the suspect to houses that showed damage or opened doors. This proved:
attempted burglaries.
GPS unit installed on suspects car, pursuant to a Search Warrant. Suspect arrested after leaving a home. K-9 tracked to 7 houses he had been at; suspect was convicted of attempted burglary for three of them. His intent was revealed by the wooden dowels he had when he was arrested. The same typ of dowels were found on the ground next to a house he entered. The K-9 tracked to 3 houses: (!) a screen door was forced opena nd sliding door was partially open (2) a window screen lay on the ground with clises in it (3) the house was freshly damaged.
99
Can one attempt and complete the same crime?
No.
since the attempt merges into the completed crime.
100
Possession of Burglarious Tool:
The essence of this offense is the possession of a tool for the specific purpose of breaking into a depository to steal or to commit some other crime.
ROA:
Felony.
101
Possession of Burglarious Tool:
Elements: (4)
The suspect:
(1) made, mended, or knowingly possessed;
(2) a tool, machine, or motor vehicle master key;
(3)Designed to cut through or break open a building, room, vault, motor vehicle, or other depository; and
(4) Which the suspect possessed with the intent to break into a depository for the purpose of stealing or committing *any other crime*.
102
Possession of Burglarious Tool:
Elements(4): (simplified)
1. Knowingly possess
2. Tool
3. Designed to break depository
4. Intent to break and commit crime.
ROA: Felony
103
Possession of Burglarious Tool:
The essence of this offense is the possession og a tool for the specific purpose of:
breaking into a depository to steal or commit some other crime.
ROA: Felony
104
Possession of Burglarious Tool:
Like other offenses, possession may be: (2)
1. Direct or
2. Constructive
Ex. passenger in stolen car had constructive possession of syringes, a map of the area, disguises, and several tools- including a dent puller- because they were near him on the front seat.
105
Possession of Burglarious Tool:
More than one offender may possess:
the same tool.
Ex. joint flight from burglary supported an inference that defendants jointly possessed a tire iron, even though only one of them actually carried it.
106
Possession of Burglarious Tool:
May more than one offender possess the same tool?
Yes.
Ex. joint flight from burglary supported an inference that defendants jointly possessed a tire iron, even though only one of them actually carried it.
107
Possession of Burglarious Tool:
May an ordinary tool qualify?
Yes.
It is not necessary that the tool be designed exclusively for the crime. Every day items such as chisels, screwdrivers, or kitchen knives may be bulgarious if possessed for an unlawful purpose.
108
Can gloves be burglarious tools?
NO.
Gloves are NOT burglarious tools, even if worn during the crime.
109
Can rocks be burglarious tools?
No.
The tool must be man-made.
Natural items, such as rocks, are not "tools" under Sec 49.(ex. defendant used a big rock to bash the back door of a home- not a burglarious tool.
110
May a tool in need of repair qualify as a burglarious tool?
Yes.
Ex. dent puller, even though missing a screw, was burglarious tool
111
Possession of Burglarious Tool:
Element 3: Tool must be capable of breaking into a depository. The term "depository" is not limited to vaults and safes; it extends to any container commonly used to safeguard:
money or other property. (ex. vehicle trunk, ATM machine)
112
Possession of Burglarious Tool:
Element 4: Tool must be possessed for the purpose of breaking into a depository and committing a crime insides:
Remember, this crime is complete when:
a tool is possessed for this purpose.
Which makes it great for offenders who are intercepted before their B&E.
113
Proof of burglarious intent may be direct. If the suspect (blank) the tool, then establishing burglarious intent is less challenging.
actually uses
114
Proof of burglarious intent may be direct. If the suspect actually uses the tool, then establishing burglarious intent is less challenging.
However, officers cannot assumed that any tool possessed during a B&E is automatically burglarious. There must be proof that the suspect had the item to:
accomplish the break.
Ex. if suspect commits a B&E by walking through an unlocked door with a knife in his pocket, the knife is not a burglarious tool unless officers have proof that the suspect initially brought the knife with him to help commit the B&E, OR that he employed it during the crime.
115
Proof of burglarious intent may be direct. If the suspect actually uses the tool, then establishing burglarious intent is less challenging.
Proof of burglarious intent may also be:
circumstantial.
ex. police looked in a truck parked near a boat ramp and saw a police duty belt, a radio, a badge, and a flashlight. Officers began to search for the occupants. Having seen the cruiser lights, defendant and his partner returned to the truck and drove away. Minutes later they were stopped. Police saw several items that had not been in the truck originally- including two screwdrivers, two sets of black gloves, and a ski mask. The men could not give a sensible reason for possessing these items.
116
Proof of burglarious intent may be based on:
expert testimony.
Ex. officer allowed to testify that the recovered gas mask, power drill, punches, and a pry bar were "a pretty complete set of safecracker's tools"
117
Possession of a Tool to Disable a Theft Detection Device:
ROA:
Felony.
This law is designed to deter shiplifters.
118
Possession of Burglarious Tool:
True or false:
Object of break may be any crime.
True.
While the typical goal of the offender is to steal the contents of the depository, it is sufficient if his purpose is to commit any crime
ex. MIT student intended to break into principals locked office (depository) using a battering ram, but was intercepted. He did not intend to steal and was only planning to stage a protest. Since his tool was possessed to facilitate a crime (trespass) within a depository the SJC upheld the conviction.
