Burglary

July 7, 2015

Saint Xavier Football Player Charged with Burglary

by Law Offices of David L. Freidberg, P.C.

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.

Burglary laws in Illinois

According to Illinois statute, a person commits burglary 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.

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.

June 26, 2015

Firearms, Clothing Provide Possible Link to Chicago Home Invasion

by Law Offices of David L. Freidberg, P.C.

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.

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.

March 18, 2015

Chicago Burglary Suspect Nabbed Due to Stolen Lottery Tickets

by Law Offices of David L. Freidberg, P.C.

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.

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.

December 19, 2014

DuPage County Burglary and Retail Theft Raise Possibility of Avoiding Prison

by Law Offices of David L. Freidberg, P.C.

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.

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.

October 1, 2014

Skokie Jewelry Home Theft

by Law Offices of David L. Freidberg, P.C.

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 Case

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