Thursday, October 28, 2010

GA Residential Burglary Statute Is Within Curtilage of Generic Burglary of a Dwelling

United States v. Garcia, No. 09-20587 (5th Cir. Oct. 27, 2010) (Barksdale, Stewart, Southwick)

Another day, another COV case.  The opinion doesn't contain anything new on the categorical approach or any meta-COV issues; it's just one more to add to your list.

The context: Illegal reentry case, the 16-level COV enhancement under guideline §2L1.2 (which includes burglary of a dwelling as an enumerated COV).

The prior offense at issue: Georgia burglary of a dwelling.

The defense argument: Generic burglary of a dwelling doesn't include entries into structures within a home's curtilage, only entries into the actual dwelling house.  Georgia burglary of a dwelling historically encompassed entries into outbuildings.  Although the current version of the burglary statute no longer explicitly mentions curtilage, a Georgia court of appeals decision post-dating the statutory change cited an older pre-change curtilage case when defining the term "dwelling house" as used in the burglary statute.  Therefore, Q.E.D.

The court's holding: You're right about the exclusion of curtilage from the the generic definition of "burglary of a dwelling."  But you're wrong about the Q.E.D. part.
We conclude that none of the Georgia opinions interpreting the current version of the Georgia burglary statute has held that a “dwelling house” includes structures within the curtilage. The current statute has other provisions that allow for conviction if entry is into certain other buildings, but those structures are not “dwelling houses.” The term “dwelling” within the Georgia burglary statute comports with the ordinary, contemporary definition of that term.

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Blogger Officer Prindle said...

I am currently reviewing the determinations and opinions of the Georgia Court of Appeals. I am trying to come up with a definitive definition of “Dwelling House” as referred to in 2012 GA Statute 16-7-1 Burglary.

In the determination of Mash V Sate in 1954 it was determined that the “curtilage” and all structures there in constituted the dwelling house. Since the revisions to the law adopted new verbiage that left out the “curtilage” wording, it has been determined, such as in Sanders V State in 2008 that the curtilage was not considered to be part of the “dwelling house”.

The question then becomes, to what extent do we consider the dwelling house while enforcing the statute?

In the case of US v Garcia No. 09-20587 filed October 27, 2010, the term “dwelling” within the Georgia burglary statute comports with the
ordinary, contemporary definition of that term.

The ordinary, contemporary definition of dwelling as provided by Webster’s New World Dictionary is “the place where a person lives”. To extend this definition and also sourced through Webster’s New World Dictionary is that to live is to perform the day to day maintenance of life.

Would it not be the day-to-day maintenance of life to drive a vehicle in and out of the curtilage of the dwelling? Or carport area? What of a porch or deck? What of areas within a store specifically designation as not authorizing public entrance. Would it be burglary if an unauthorized person entered the area with the intent to commit a felony or theft as stated in the statute?

A further clarification or official Judicial opinion would be greatly appreciated. If there is an official channel or form for this to be submitted, please advise?

10/08/2012 06:39:00 PM  

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