Articles Posted in Burglary

800px-Compact_bolt_cutters_215mm-300x134Crimes or accusations of inference and supposition ought to be relatively easy to defend because of the lack of clarity surrounding them. However, the reality is that the legislation has been written in such a way as to favor the prosecutor and the accusing officer. The basic tenets of the law under the provisions of statutory instrument number 720 ILCS 5/19-1 are that if you are caught with paraphernalia that could be used to commit a crime; then the authorities are well within their rights to accuse you of the intention to commit that crime.

That is not always the case in all crimes, but in the case of burglary the principle more or less operates as described above. That then leads the defense counsel to determine what exactly constitutes crime-related paraphernalia. In this, as in many other things, the law is still lacking in clarity. For example, something like a bolt cutter could be used for legitimate carpentry operations as part of a professional undertaking. At the same time, it remains one of the most common tools that home burglars use in order to gain access.

Developing the Rules Through Experience

file000340814082Home invasions have been the fodder for criminal defense attorneys in Illinois for ages. Recently there has been a growing conversation around the response of the homeowner and whether he or she is legally protected. States like Florida have a stand-your-ground provision which has sometimes led to tragic consequences. To make matters worse, some of these incidents are alleged to involve an element of racial animus. One need only look back at the circus surrounding the George Zimmerman case to realize that self-defense is never as simple as it looks on paper when the laws are first drafted.

Burglaries are going to continue and defense lawyers are going to continue to use every trick in the book to get an acquittal or generous sentence for their clients. This article highlights some of the important considerations for the law as it stands but also the implications for defendants and homeowners.

A Law that is a Series of Compromises and Interests

According to a report from the Oak Lawn Patch, four men were arrested in connection to an early morning robbery on July 10. At around 1:12 a.m. on July 10, police responded to a call that three people were robbed at gunpoint by two men. Both alleged gunmen reportedly fled in a Ford SUV. Police canvassed the area and found an SUV that matched the description. After following the vehicle briefly, it was stopped, and the police recovered the stolen property and a weapon from the SUV. The victims identified the men as the robbers.4251992459_ec92a8530b

Three of the men were charged with aggravated armed robbery. The fourth man was charged with one misdemeanor count of mob action. Bail was set at $100,000 for two of the men, $50,000 for the third, and $120 for the individual charged with mob action.

Robbery  and Accomplice Liability in Illinois

In general, robbery in Illinois involves taking the property of another by using force or by threatening to use imminent force. If, during the robbery, the defendant either carried a weapon, discharged a firearm, or discharged a firearm within proximity to the crime that caused great bodily harm or death to another person, it is considered armed robbery. Additionally, Illinois treats the robbery of a motor vehicle differently and considers it vehicular hijacking.

A robbery charge can become an aggravated robbery charge if  the defendant takes the property of another by force or threat of imminent force and either verbally indicates that he or she is armed with a weapon, or the defendant drugs the victim without consent using a controlled substance.

Here, the two alleged gunmen were charged with aggravated robbery, indicating that there may have been a verbal exchange where they stated they were armed with a weapon since there was no evidence of drugging. A third person was also charged with aggravated robbery, presumably because he was an accomplice as the driver of the vehicle.

These forms of robbery are all considered felonies in Illinois. Plain robbery is a Class 2 felony, which carries a sentence of three to seven years in prison and a maximum fine of $25,000, with a mandatory parole period upon release of two years. If the robbery occurred in a school, day care center, child care facility, or place of worship, it is a Class 1 felony with a possible sentence of four to fifteen years in prison and a maximum fine of $25,000. Similarly, it has a mandatory parole period upon release of two years.

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A prolific shoplifter, who was previously convicted of stealing $ 2 million in merchandise from Toys “R” Us stores in 2012, was arrested and charged with burglary for attempting to steal paintbrushes from a Hobby Lobby in Lombard, IL.  According to a report, the suspect, Ignatius Pollara of Tamarac, IL, served two years in jail for the Toys “R” Us thefts, which involved 139 store locations in 27 states.  He now faces charges in DuPage County.10882873714_a225ec87c4

Allegedly, Pollara took paintbrushes from a Hobby Lobby in Lombard, IL and hid them in his pants near the small of his back.  After doing so, Pollara tried to leave the store and was immediately apprehended.  Police in DuPage and Cook County were alerted beforehand that Pollara was planning a trip to the Chicago area from Florida. They tailed Pollara in the Chicago area, where he spent four nights in different motels, each near a major shopping center.  Additionally, police placed a tracking device on Pollara’s rental car, and a search of the vehicle revealed suspected stolen merchandise. He is charged with one count of felony burglary.

Retail Theft vs. Burglary

Here, Pollara was charged with burglary. A person commits burglary in Illinois if he or she enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, railroad car without authority; and does so with the intent to commit a felony or theft inside. Prosecutors have to prove beyond reasonable doubt that the charged individual entered (or remained) with the intent to commit theft or some other felony. Pollara was apprehended attempting to leave the Hobby Lobby with hidden items taken from the store. His pattern of staying in motels near retail stores, along with stolen merchandise found in his car, may be used as evidence to prove that he entered the hobby lobby with the intent to commit theft inside.

Illinois has stringent retail theft or shoplifting laws. In Illinois, a person is guilty of retail theft if he or she knowingly takes possession of, carries away, transfers, or causes to be carried away or transferred any merchandise displayed, held, stored, or offered for sale in a retail establishment with the intention of retaining such merchandise of depriving the merchant permanently of the possession, use, or benefit of such merchandise, without paying the full retail value.

If the value of the items was $300 or less, the retail theft is a Class A misdemeanor. If the value was greater, the defendant can be charged with a Class 4 felony. However, if the defendant has a prior conviction of retail theft, or any theft-related offense such as robbery, armed robbery, residential robbery, possession of burglary tools or home invasion, the offense is automatically a Class 4 felony.

Burglary Penalties

Burglary is considered a Class 2 felony in Illinois, which is punishable by three to seven years in prison.  However, if the suspect had not been convicted of a class 2 felony or greater within the previous ten years, up to four years of probation may be available. If the burglary involved someone’s home, it is considered residential burglary, which is much  more serious. It becomes a Class 1 felony, which is punishable from four to fifteen years in prison and probation is unavailable.

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Ronald E. Kelley Jr., originally from Carterville, IL, was convicted of burglary and attempted residential burglary on April 7 according to a news report.  On June 24, he was sentenced to fifteen years in prison for attempted residential burglary and eight years for burglary. He was also required to serve a three-year period of mandatory supervised release on each count.6283422937_acc69eafd1

Kelley was charged with burglarizing an automobile before trying to enter a home in Murphysboro, IL. A woman who lived at the home told dispatchers that she saw a man halfway through her bathroom window. He retreated from her window and fled when she confronted him. The woman later identified the man as Kelley.

According to the police, the woman and car burglary victim gave the same description at the time of the alleged incidents. Officers later found Kelley walking down a road near the homes and searched him. During the search, they found property on Kelley which they identified as having been stolen from a third victim.

Illinois Burglary Law

Under Illinois law, a person commits burglary if he or she enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, or railroad car without authority, and does so with the intent to commit a felony or theft inside. If convicted, burglary is considered a Class 2 felony in Illinois, which is punishable from three to seven years in prison.  Up to four years of probation may be available if there are no convictions of a class 2 felony or greater within the previous ten years. However, if the burglary involved someone’s home, it is considered residential burglary, which is much more serious and considered a class 1 felony. Residential burglary is punishable from four to fifteen years in prison and probation is unavailable.

Possible defenses to burglary may include negating the first element of the offense by proving that the individual had the consent of the owner or occupier of the property to enter.  In these cases, there would be no unauthorized entry.  Even if the defendant misunderstood the owner and erroneously believed he had permission, the belief in the consent, if reasonable, may be enough to defeat a charge of burglary.

Also, burglary requires that a person have the specific intent to commit theft or a felony once inside the property. If a person was intoxicated, it may be a valid defense to the degree that it kept the defendant from forming the specific intent.

The Reliability of Eyewitness Testimony

As in the case above, eyewitness testimony is often the lynchpin evidence used by prosecutors to achieve a burglary conviction.  However, according to the Innocence Project, eyewitness misidentification is the greatest contributing factor to wrongful convictions proven by DNA testing.  Eyewitness testimony plays a role in more than 70% of convictions overturned through DNA testing nationwide. In eyewitness identifications, witness memory is often impacted by a variety of factors that occur from the time of the crime onwards, and human memory is vulnerable and easily contaminated. Therefore, eyewitness testimony is often not as accurate as juries often believe it to be, and police eyewitness identification procedures can have a major effect on the accuracy of identifications.

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A Saint Xavier University football player and criminal justice major, Jonathan Gilbreth, was charged with one felony count of burglary on June 26, 2015, according to a news report. At around 3:10 a.m., police responded to a security alarm at an Oak Lawn tobacco store where they saw a man running from the area behind the store. After a brief foot chase, police caught Gilbreth at a nearby backyard and found him in possession of tobacco products from the store. A witness also saw Gilbreth hit the glass door to the tobacco store just before the security alarm went off.4041717501_067f15b234

Burglary laws in Illinois

According to Illinois statute, a person commits burglary if he or she:

  1. Enters or remains in a building, house trailer, watercraft, aircraft, motor vehicle, railroad car without authority; and
  2. Does so with the intent to commit a felony or theft inside.

Entering without permission is not enough – prosecutors have to be able to prove that the individual entered (or remained) with the intent to commit theft or some other felony. Here, the police witnessed Gilbreth running from behind the store and found him in possession of products from the store. It is likely the police will have a strong case with circumstantial evidence where Gilbreth’s actions are only consistent with an intent to steal. Additionally, the intended crime does not have to occur – it is enough that an unauthorized entry occurred with a corresponding criminal intention.

Possible defenses to burglary may include negating the first element of the offense by proving that the individual had the consent of the owner or occupier of the property to enter. In these cases, there would be no unauthorized entry. Even if the defendant misunderstood the owner and erroneously believed he had permission, the belief in the consent, if reasonable, may be enough to defeat a charge of burglary.

Also, burglary requires that a person have the specific intent to commit theft or a felony once inside the property. If a person was intoxicated, it may be a valid defense to the degree that it kept the defendant from forming the specific intent.

Penalties for Burglary as a Felony

If proven, burglary is considered a Class 2 felony in Illinois, which is punishable from three to seven years in prison. However, if the individual had not been convicted of a class 2 felony or greater within the previous ten years, up to four years of probation may be available.

However, if the burglary involved someone’s home, it is considered residential burglary, which is much  more serious. It becomes a Class 1 felony, which is punishable from four to fifteen years in prison and probation is unavailable.

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Police investigating a Chicago home invasion have recovered firearms and clothing that may further link the suspects, who are already in custody, to the crime. But even if police can prove that the items belonged to the suspects, that fact alone doesn’t prove that the suspects committed the crime.8727687760_278633e893

Eyewitness Testimony

The suspects were arrested based on eyewitness descriptions of the clothing they were wearing during the crime. Police found some articles of clothing and firearms discarded in fields near the location of the home invasion.

But eyewitness identifications are often faulty. According to the Innocence Project, in cases where innocence was proven through subsequent DNA testing, 70% of faulty convictions were the direct result of eyewitness misidentification.

Here, the eyewitness descriptions were based almost entirely on the victim’s clothing. Using clothing as the primary means of identification is inherently unreliable. If the clothing was not distinctive, or if the suspects were wearing a style of clothing popular with young people, an arrest based solely on the clothing description creates a possibility that the police arrested the wrong person. Add to that the inherent untrustworthiness of eyewitness identification generally – eyewitness testimony can be influence by police conduct, statements of other witnesses, news stories on the crime or the passage of time – and it makes the arrests in this case open to casting reasonable doubt that the defendants were the ones who committed the crime.

Proof of Ownership vs. Proof of Use

Proving that the suspects owned the clothing and firearms is not, in and of itself, proof that they committed the crimes.

The police can prove ownership of the guns by tracing serial numbers or matching fingerprints found on the weapons to the suspect’s fingerprints. Proving that the clothing belongs to the suspects may be a bit harder, but forensic experts can likely find hair or skin samples that would link the clothing to the suspects. It may also be easy to find images on Facebook or other social media sites that show the suspects wearing the clothing.

To prove that the suspects committed the crime, the prosecution must obtain forensic evidence that shows the suspects used the items during the commission of the crime. A jury would expect that the owner’s fingerprints would be on the weapon, so that alone does not prove that the suspect was the one who fired the weapon during the home invasion. The weapon could have been stolen, or the suspect could have lent it to a friend or family member who then used it during the crime. The prosecution must have other proof, such as gunpowder residue found on the suspect, to prove that he fired the weapon.

The same is true of the clothing. Even if the prosecution can prove that the suspects owned the specific items of clothing police uncovered, they must prove that they were the ones who actually wore it during the crime, rather than it having been stolen or borrowed by somebody else.

So the defense strategy in this specific case would rely heavily on disputing the prosecution’s forensic evidence linking the items recovered to the suspect’s use and possession during the commission of the crime. An independent forensic expert would examine all of the prosecution’s evidence to determine if the firearms and clothing could have been used by anybody other than the suspects.

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An Evanston man was arrested and charged with burglary for allegedly breaking into three Elgin gas stations last month and stealing cash and Illinois state lottery tickets.

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Illinois Burglary Requires Intent to Steal

Under Illinois law a person commits the crime of burglary if:

  • He knowingly enters a building;
  • The entry is without permission, and;
  • His entry is with the intent to steal or commit a felony.

Burglary is a specific intent crime, which means the prosecution must prove that the defendant knowingly entered the premises without permission, and that he intended to steal once he was inside. This definition raises an interesting point about burglary that many people do not realize – it is possible to illegally enter a building without permission, steal something, and yet not be charged with burglary. How? It all depends on when the intent to steal was formed.

Here is an example. It’s freezing on the streets of Chicago, and a homeless man is looking for a warm place to spend the night. He breaks the window of a doctor’s office so he can sleep on the couches in reception. That is his only purpose in entering the office – to get a good night’s sleep in a warm place. At this point, he has fulfilled the first two elements of the burglary charge.

When he awakes in the morning, he notices an open drawer. Upon further inspection, he sees an envelope containing petty cash. He decides to take it, along with some drugs that were unlocked in a cabinet. Although he intended to steal from the doctor’s office when he took the money and the drugs, the man did not commit burglary. That is because his intent to steal was not present the moment he illegally entered the office, but was formed later. The intent to steal must be present when the person illegally enters a building.

Now this does not mean the man cannot be charged with a crime. He could be charged with trespass and theft, but not burglary. The distinction is significant, because burglary is a felony, whereas depending on the value of the items stolen, the theft may only be a misdemeanor, which means a much shorter prison sentence, if convicted.

Chicago Burglary Defense

In any case of burglary, the first line of defense would be to argue that it was not the defendant who broke into the gas stations. The article states that police linked him to the crimes through stolen lottery tickets. Assuming that they do not have images of him on video surveillance, then the only evidence linking him to the crime is the stolen lottery tickets. Possession of the lottery tickets in and of itself is not proof that he was the one who illegally entered the gas stations and stole the tickets. He may have received them from a friend after the fact, or he could have found them all discarded in a dumpster after the real thief tried to dump them. Regardless, even if he knew, or should have known, they were stolen, this does not make him guilty of burglary.

The second line of defense, as discussed above, would be to prove that the defendant did not have the intent to steal when he entered the premises. If it can be proven that he entered for any non-criminal purpose, and decided to steal only later, as discussed above he could not be charged with burglary.

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A DuPage County couple was arrested and charged in early December with two counts each of burglary, and additional counts of retail theft, for allegedly stealing and selling more than $4,000 worth of merchandise from a string of DuPage County Walmart stores. The charges are Class 2 and Class 3 felonies, respectively. Police allege the couple stole and later sold the items to feed their drug addiction.

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DuPage County Commercial Burglary Charge

In Illinois, burglary is committed when a person knowingly and without authority enters, or knowingly and without authority remains, within a building with the intent to commit theft or another felony within the building. Although most people consider burglary to be entering a residence with the intent to steal, a person can be charged with burglary if he enters a building with the intent to kill, rape, or commit any other felony.

An unidentified person allegedly stole jewelry from inside a home during a Skokie estate sale last week. The case is interesting because it raises a number of different issues that the prosecution will need to overcome if an arrest is made and charges filed, as well as many possible defense strategies to explore.

Proving Skokie Theft CaseDSCF4929

At the outset, the prosecution faces an uphill battle in obtaining a positive identification of the alleged thief. In reference to the estate sale, individuals were no doubt going in and out of the home. Any forensic evidence found at the scene – such as fingerprints, clothing fibers, or other DNA evidence – cannot provide a smoking gun. Here, the suspect was “invited” into the home for purposes of the sale. Absent any forensic evidence tying the suspect to the scene, an eyewitness identification is strongly in doubt. With the family talking to dozens of people while trying to make sales, without any distinguishing characteristics on the suspect’s part, it will be difficult for eyewitnesses to testify with certainty that the suspect was present in the home.

Even if caught – for example, if a local pawn shop reports purchasing the stolen jewelry – it is difficult to prove beyond a reasonable doubt that the suspect was the person who stole the jewelry. Without a positive identification or any forensic evidence tying him to the scene, there are any number of possible reasons the suspect could have come into possession of the jewelry. He could have purchased it from a different pawn shop, received it as a gift, or even found it discarded in a trash can or on the side of the road.

Skokie Defense of Theft

From the defense side, there are several issues to explore regarding the estate sale itself that could help cast doubt on the suspect’s guilt:

  • Was there a “free” table at the sale? If there was, it raises the possibility that another attendee, or even a family member, mistakenly laid the jewelry on that table, leading the suspect to believe it was free for the taking;
  • How many people were in charge of handling transactions? If there was more than one person handling sales, it is possible that the suspect actually paid for the item. Lack of communication between salespeople could cause the sale to not be properly recorded, thus leading to a misunderstanding that the item was stolen;
  • Do any of the people running the estate sale carry a criminal history of theft or similar crimes themselves? It is possible one of the salespeople simply pocketed the money from the sale and reported it as stolen to cover his tracks;
  • Is there animosity among the family members set to inherit the estate? Proceeds from the estate sale are deposited into the estate and used to pay estate bills before they are ultimately distributed to the heirs. If there was a disagreement amongst family members as to who should receive the allegedly stolen piece of jewelry, a decision of the majority of the heirs would win. A disgruntled family member who wanted the jewelry may have pocketed it and concocted the theft story to deflect blame.

Each of these scenarios would cast serious doubt on the defendant’s guilt, and are all avenues that David L. Freidberg would explore in working to get the charges dropped or the case dismissed.  Continue reading