#TheodoreWafer trial: definition of burglary and breaking and entering

July 30, 2014

Wednesday, July 30, 2014

Good morning:

I write today to clear up some confusion regarding the legal definitions of burglary and curtilage. I will also comment about the police video that was played in court after the jury was excused for the day.

A residential burglary is defined by statute as a breaking and entering into a dwelling with intent to commit a crime. The breaking-and-entering requirement does not require proof that a defendant damaged property while entering a dwelling. The breaking-and-entering requirement can be satisfied by proof that a defendant entered or remained inside a dwelling without permission.

The breaking requirement refers to breaking the vertical plane that separates the inside from the outside of the dwelling. That plane is established by the exterior walls of the dwelling. The position of a closed door establishes the vertical plane in doorways. Therefore, evidence that a defendant stepped through an open doorway without the owner’s permission would satisfy the breaking-and-entering requirement.

Curtilage is a legal term that refers to the property between the boundaries of the property and the outside the dwelling. This area typically includes the yard and occasionally some outbuildings. Sidewalks, driveways and front porches are structures that define avenues of ingress and egress through the curtilage so that members of the public can reach the front door without trespassing.

Police officers do not need to obtain a search warrant in order to reach the front door. As is the case with any member of the public, police officers can walk from the street to the front door without trespassing so long as they remain on the driveway/sidewalk and porch.

Working in two-person teams, police will use a procedure called a knock-and-talk to initiate a conversation at a particular address. One officer does the talking while the other officer peers inside to see if any evidence of a crime is in plain view. For example, if he sees a plastic baggie containing green vegetable matter that looks like marijuana or if he smells marijuana,

Renisha McBride likely did not violate any law when she approached Wafer’s house from the street and knocked on the door. Officers have testified that, with the exception of the damage caused to the locked screen door by the shotgun blast, there was no damage to the doors or windows of his house. The absence of damage means there is no evidence that she attempted to enter the house. The Castle doctrine does not apply, unless she was attempting to enter the house. Mere knocking and yelling in an effort to get someone to answer the door is insufficient to justify the use of deadly force.

Finally the lawyers and a police witness discovered an inconsistency regarding the amount of money McBride had when Wafer shot snd killed her. One of the officers said she had a $100 bill, whereas a police report says she had $56.

Something ain’t right, so the judge is going to have to decide what to do about the discrepancy. Fortunately, the jury was not present in the courtroom when the discrepancy was discovered. I do not believe the discrepancy warrants a mistrial because it does not make it more or less likely that Wafer was justified in using deadly force.

See you on twitter.

Fred


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