Chapter 14: robbery, burg, etc

Robbery

Forcible stealing: theft by force or threat of force against a person. Force or threat is what separates robbery from simple theft.

MPC §222.1 robbery

In the course of committing a theft, the person (a) inflicts serious bodily harm; (b) threatens or purposely puts another in fear of immediate serious bodily injury; or (c) commits or threatens immediately to commit any first- or second-degree felony. Includes attempt and flight after the attempt or commission.

Robbery: usual elements

Taking and carrying away (slight movement) + property of another + intent to steal + from the person or presence of the victim + by force or threat of imminent force to compel the victim to acquiesce.

Simple robbery

Also called strong-arm robbery, mugging or yoking; distinguished from armed robbery, which has heavier penalties.

Armed (aggravated) robbery: ways states define it

Perpetrator armed with a dangerous or deadly weapon; intended to kill or wound if the victim resisted; or actually inflicted bodily injury.

Objective approach to armed robbery

Defendant must actually possess a deadly weapon (Montana: readily capable of producing death or serious bodily injury, In re L.S.). People v. Grant (N.Y.): "I have a gun. Fill the bag" with no gun = third-degree (simple) robbery, not first-degree.

Subjective approach to armed robbery

Defendant need only appear to have a deadly weapon (more common). Georgia covers a replica or device with the appearance of a weapon; Kirk v. State: some physical manifestation of a weapon plus the victim's reasonable apprehension. State v. Wren (Kan.): victim reasonably believed the robber had a firearm.

United States v. Seabourne (5th Cir. 2022)

Bank robber's note "I am armed" with no firearm. Issue: whether it was a "threat of death" for the +2 Federal Sentencing Guidelines enhancement (§2B3.1); discharged firearm +7, firearm used +6, threat of death +2.

Note robberies

Most common bank robbery method today (1,028 of 1,740 in 2022); weapon actually brandished in only 214. Perpetrators include amateurs; average take $5,000-$7,000; over half of robbers are caught (cameras, dye packs, GPS).

Common law robbery vs. larceny

Robbery needs (1) property taken from the victim or in the victim's presence and (2) force or threat of force in the taking.

Spencer v. State (Md.)

Defendant told a Jiffy Lube cashier "Don't say nothing" and she handed over the drawer. Not a threat of force at common law, or theft and robbery would merge; robbery reversed.

Michigan "course of conduct" robbery

Defendant entered a tobacco store with his hand in his pocket ("You know what this is, just give me what I want") and left with nothing. Armed robbery affirmed: statute covers force or threat during the course of committing a larceny; completed theft not required (23 states and the MPC).

Hobson v. Commonwealth (Ky.)

Robbery reversed where force was used only to escape; under the Kentucky statute force must be part of the taking.

Rockmore v. State (Fla. 2014)

Defendant showed a weapon to security officers chasing him after a store theft, though he dropped the goods. A continuous series of events, so the display was part of the robbery.

Transactional theory of robbery

Force at any part of the transaction counts, including force to retain the property or escape (MPC, many states; Commonwealth v. Rogers, Mass.).

Carjacking

Taking a motor vehicle from another's person or immediate presence by force or fear, with intent to permanently or temporarily deprive. Created because thieves often returned cars (90%+ returned). 18 U.S.C. 2119 (Anti-Car Theft Act of 1992).

Carjacking: possession and taking

Owner in possession even when outside or alighting (People v. Magallanes); taking occurs even if the owner stays in the car.

Corbin v. United States (D.C. 2015)

Defendant sat in the passenger seat and told the driver where to go; she complied willingly. Carjacking not proved: he never took possession of the car.

Carjacking movement requirement

California requires movement of the car, however slight (People v. Lopez, Cal. 2003); Florida does not (Price v. State).

Carjacking and kidnapping

Carjacker can also be convicted of kidnapping if the owner is purposely kept in the car and moved a substantial distance (People v. Ortiz, drug debt); movement merely incidental to the carjacking is not kidnapping (People v. Medina).

Home invasion robbery (LO 3)

Unlawful entry of the dwelling of another with intent to commit a crime, persons present, and use or threat of force; armed with a dangerous weapon increases the penalty. Illinois: entry by a person who knows someone is present and is armed.

Home invasion: multiple convictions

Illinois may allow home invasion plus armed violence during residential burglary (Jaquez); Florida bars related crimes but allows a homicide too (Tuttle); Florida one count (Schulterbrandt) vs. Massachusetts two counts for two people (Antonmarch).

Purse snatching: majority rule

Not robbery unless force exceeds that needed to take the purse (State v. Sein, N.J.): robbery if a struggle ensues, the victim is injured, or property is attached to the person. Jones v. Commonwealth: jerking the victim around = robbery.

Purse snatching: minority rule

Snatching alone can support robbery (Commonwealth v. Jones, Mass., and Kentucky); it wrongly stresses the victim's chance to resist over the snatcher's willingness to use violence.

Sudden snatching statutes

Georgia robbery includes taking by sudden snatching; Florida robbery by sudden snatching (FSA 812.131) needs no extra force (victim must know, Walker v. State); Louisiana purse snatching 2-20 years (State v. Wall).

Theft from the person

Pickpocketing, purse snatching: punished more severely than ordinary theft; felony in most states regardless of value. LO 4: becomes robbery when force beyond that needed to take the property is used.

Extortion

Obtaining property by causing the victim to consent out of fear of a threatened future harm. From Latin torquere, to wrench or twist (same root as torture).

Extortion: common threats

Bodily injury or death; property damage; false criminal accusations; exposure of a secret subjecting the victim to contempt or ridicule; economic harm. New York lists nine kinds of threats.

Robbery vs. extortion (LO 5)

Robbery: immediate force, in the presence of the victim, comply now. Extortion: threat of future harm to the victim or a third party; can be done by phone or mail (also a federal violation).

Hobbs Act (18 U.S.C. 1951)

Federal robbery/extortion statute (1946). Extortion = obtaining property of another with consent induced by wrongful use of actual or threatened force, violence or fear (includes under color of official right). Used for labor racketeering, corruption, commercial disputes.

United States v. Markle

Union member threatened rival union members to keep them off a job site; Hobbs Act conviction upheld because the union-violence exception covers only legitimate labor objectives.

Sekhar v. United States (2013)

Anonymous emails threatening a retirement program's general counsel to coerce an investment recommendation. Not Hobbs Act extortion: property must be something of value that can be transferred from one person to another.

United States v. Dotson (6th Cir. 2022)

Detroit police officer sent abandoned vehicles to Somerset Collision for $500-$1,600 payments (six referrals, six payments). Hobbs Act extortion under color of official right affirmed; payment under an agreement to perform specific official acts (McDonnell).

State v. Gant (Iowa)

Offered to tell a garage owner where his stolen tools were only for $200; extortion by threatening to withhold information about another's legal claim.

State v. Pauling

Threatened to publish nude photos of an ex-girlfriend unless she repaid a debt; extortion, and publishing was not protected speech since its only purpose was to threaten.

People v. Hesslink

Fake police officer coerced sex from a prostitute who also gave him money hoping he would not arrest her. No extortion: he never demanded money under threat of arrest; no threat, no extortion.

State v. Hynes (N.H.)

Lawyer demanded $1,000 to avoid filing a groundless gender discrimination suit against a salon; extortion under the catch-all provision (no benefit to him, harm to the salon).

Rendelman v. State (Md.)

Threatening to sue unless a settlement was paid, even in bad faith, is not extortion: the threat must be wrongful and filing a lawsuit is not illegal. Same result under the Hobbs Act (Pendergraft, 11th Cir.).

Common law burglary (LO 6)

(1) Breaking and entering (2) of a dwelling house of another (3) at night (4) with intent to commit a felony. Once punished by death.

Modern burglary (LO 7)

Unlawful entry, with or without breaking, of a residence or building, day or night, with intent to commit a crime inside; some states require a felony, others list crimes. UCR: unlawful entry of a structure to commit a felony or theft.

MPC §221.1 burglary

Third-degree felony to unlawfully enter any building with intent to commit a crime; second-degree felony if the entry is into the dwelling of another at night.

Breaking requirement today

Abolished in general burglary statutes; entry without consent into a building not open to the public is enough (Texas, Clark v. State). Some states keep breaking as an aggravated form; Indiana has residential entry (no intent required).

Entry in burglary

Any part of the body crossing the threshold (hand, foot: Martinez), or a tool as an extension of the body (screwdriver tip, cane). State v. Holt: fingertips between window screen and window.

United States v. Edwards

Post office break-in with a pry bar proved circumstantially: paint and wood fragments on the defendant's clothing matched the window.

State v. Tixier

Instrument penetrating the building is evidence of entry; burglary is complete at unauthorized entry with intent; no need to prove anything was stolen.

Burglary of premises open to the public

Champlin v. State: taking a TV and register from a lobby open 24 hours was not burglary. People v. Johnson (Ill. 2019): entering a Wal-Mart intending to steal can be burglary (entry "without authority" means normal shopping), but intent must exist before entering.

"Dwelling" and "inhabited"

A dwelling is where people live and sleep (hotel rooms, apartments), not a new building no one has moved into. Inhabited turns on the character of the use (People v. Lewis); "present or likely to be present" not met when the owner was away for weeks (State v. Jackson, Ohio).

Nighttime burglary

Common law: sunset to sunrise. Today all jurisdictions recognize daytime burglary (about half of burglaries); some states punish night more severely.

Intent in burglary

States require intent to steal or commit a felony, any crime, or specific crimes. State v. Chatelain (Or.): must prove which crime if the statute says "a crime"; State v. Robinson (N.J.): "purpose to commit an offense" can be inferred from the break-in.

Enters or remains unlawfully

State v. Henderson (Or. 2019): intent may be formed after an unlawful entry. Quarles v. United States (2019): for "remains unlawfully," intent may be formed at any time while unlawfully present (e.g., hiding in a storeroom after closing).

People v. Myles (Cal. App. 2023)

Homeless man broke a window, turned off the alarm, ate ice cream; 15 years. Reversed: jury instruction suggested consuming property proved burglary without proof he intended theft when he entered; his acts were equally consistent with trespass.

Burglary and double jeopardy

Burglary and the crime committed inside are separate offenses with separate elements, so both can be charged. Exception: State v. Begaye (N.M. 2023): breaking and entering and nonresidential burglary merged on the same conduct.

Trafficking in stolen goods

Receiving (single act), concealing and possessing (continuing acts), buying and transferring. State must prove property was stolen, defendant received/concealed/possessed it, and knew it was stolen. State v. Lawrence (Minn.): concealing or possessing is a continuing offense for the statute of limitations.

Fence

Middleperson who traffics in stolen property, pays the thief a small fraction of value, and resells at a profit; reduces the thief's risk and handles large quantities. Some run legitimate businesses; some narcotics dealers take stolen goods for drugs.

Possession of burglary tools: elements

(1) possessed a device or implement; (2) suitable for burglary; (3) intended to use it to break into a building with intent to steal. Hard element: intent; ordinary work tools are not enough (People v. Echols: tools in car, video of car used in burglary).

Trespass (LO 8)

Knowingly and unlawfully entering or remaining on another's land or building; can be a crime without intent to commit another crime. Washington 9A.52.070: knowingly enters or remains unlawfully in a building.

Defiant trespass

Entering or remaining after notice against trespass, given by (i) actual communication, (ii) reasonable posting, or (iii) fencing or enclosure designed to exclude intruders.

Commonwealth v. Powonder (Pa. 2023)

Smoke shop manager told him not to enter and to leave on return during business hours; he was convicted of criminal trespass even though the shop was open to the public, because he knew his presence was not permitted.

Ring example: theft crimes ladder

Ring taken from a sink = theft (value-based); from a pocket or purse = theft from person (felony regardless of value); threatened in an alley = simple robbery; held at gunpoint = armed robbery (higher felony).

Robbery vs. theft: the two added elements (lecture)

Take from the victim's person or immediate presence (close enough they could have stopped you if not afraid) AND by physical force or intimidation. Every robbery includes a theft; not every theft is a robbery.

Takeaway formulas: robbery, extortion, burglary, trespass

Theft + force/fear from a person = robbery. Theft + coerced consent via wrongful threat of future harm = extortion. Trespass + intent to commit a crime inside upon entry = burglary. Unlawful entry alone = trespass.

"Swallowing" rule

The worst version of a crime swallows the lesser versions (you cannot commit the bigger crime without the smaller ones); this is why double jeopardy bars both.

911 caller whose TV is missing

Burglarized and stolen from, not robbed: robbery needs a person plus force or fear.

State v. Wall (Ariz. 2006)

Theft is a lesser included offense of robbery. Lookout accomplice who did not know his partner would use force was entitled to a lesser-offense instruction (attempted theft).

Spencer v. State (Md. 2011): lecture

"Don't say nothing" while grabbing the cash drawer. Force or intimidation must be objectively sufficient to put an ordinary reasonable person in fear of bodily harm. Robbery reduced to theft.

Hobson v. Commonwealth (Ky. 2010): lecture facts

Tried to use a stolen credit card at Walmart, was caught, left merchandise on the counter, ran out empty-handed, fought an officer in the parking lot (broke his ankle). Not robbery: theft already abandoned; force only to escape is not robbery.

Robbery timing rule of thumb

Keep the goods = robbery. Discard the goods before leaving the store's threshold = still theft, not robbery.

MPC 222.1 timing

Narrows robbery to serious bodily injury (or threat of immediate serious bodily injury) but widens timing to force used during an attempt or in flight after the theft.

Armed robbery vs. aggravated robbery (outline)

Armed: possesses, displays or uses a deadly weapon or dangerous instrument. Aggravated: weapon use, accomplices, or serious bodily injury (MPC first-degree robbery). Aggravated contains armed (nesting doll).

Large amount and aggravated robbery

In some states a large enough amount is always a felony and can reach aggravated robbery even without threats or a weapon.

Kirk v. State (Ga. App.): lecture

Gun pointed at the victim's head for van keys and coins = armed robbery; the separate assault charge merged into it.

McLaughlin v. United States (1986)

An unloaded gun is still a dangerous weapon: it instills fear, victims cannot know it is unloaded, it can provoke deadly responses, and it can be used as a bludgeon (pistol whip).

People v. Grant (N.Y. 2011) and State v. Muldrow (S.C. 2002)

Words or a note alone ("I have a gun" / "Give me the cash or I'll shoot") do not prove the robber was armed; reduced to simple robbery in strict-possession jurisdictions.

In re L.S. (lecture)

Juvenile claiming a weapon in his pocket: enough fear for basic robbery, not enough to prove first-degree armed robbery.

BB gun or fake weapon (class discussion)

If the victim reasonably believed it was real (even with an orange tip) that can be enough; still assess how the person is using it.

Home invasion robbery elements (lecture)

(1) Entering a dwelling without permission; (2) knowing or having reason to know someone is home; (3) using force, intimidation or a weapon to rob or assault the person inside.

Commonwealth v. Antonmarchi (Mass.)

Home invasion protects people, not just the building: assaulting two people in one apartment can support two counts.

People v. Jaquez: sentencing

Working with accomplices in a home triggers severe enhancements (lecture example: 5-10, 10-20, 20-30 years).

State v. Tuttle (Fla. 2015) and Schulterbrandt v. State (Fla. 2d DCA 2008)

Cannot be convicted of both home invasion robbery and armed burglary for a single break-in: armed burglary's elements are swallowed by home invasion robbery (double jeopardy).

Home invasion vs. armed burglary

Home invasion: someone is home (occupant need not even be aware). Armed burglary: weapon carried but no one home.

Threshold test: home invasion vs. burglary

If you and the occupant were ever both inside at the same time = home invasion/robbery. If you left before the occupant crossed the threshold = burglary.

Walker v. State (Fla. 3d DCA 2006)

Stealth pickpocketing (victim does not notice during the taking) is larceny, not robbery.

Purse snatching: majority vs. minority (lecture)

Majority and MPC: sudden snatch is theft unless the victim fights back (tug of war, shove). Minority (Commonwealth v. Jones, Mass. 1972): any snatching the victim is aware of is robbery.

Extortion vs. robbery (lecture)

Robbery: gun in your face, taken against your will, now. Extortion: victim consents under pressure to avoid a future harm (e.g., pay $5,000 by Friday or I burn your shop).

Extortion: transferable property and color of official right

Victim hands over transferable property in response to wrongful threats of future harm or under color of official right.

Sekhar v. United States (2013): lecture

Threatening a government lawyer to force an investment recommendation is not Hobbs Act extortion: must obtain transferable property like cash or goods, not advice.

State v. Pauling (Wash. 2003): lecture

Threat to mail explicit photos of an ex to her family unless she paid $5,000. Extortion punishes only wrongful threats with no legitimate connection to money actually owed (First Amendment).

Owed money and extortion

A debt does not make the threat legal; it makes it a different, usually lesser, crime. MPC claim of right: honest claim to money stolen from you is a defense.

United States v. Pendergraft (11th Cir. 2002)

Threatening to file a civil lawsuit, even a baseless one, is not federal extortion; the courtroom weeds out fake suits.

Why carjacking is separate from robbery

Robbery needs intent to permanently keep; many carjackers take a car for a joyride or getaway. Carjacking covers permanent or temporary taking.

People v. Lopez (Cal. 2003): lecture

Ordered driver out of a van at gunpoint, sat in the driver's seat, ran before moving it: only attempted carjacking; California requires slight movement (asportation).

Fencing and MPC presumption

Knowingly receiving, buying, possessing or concealing stolen goods (MPC 223.6). Knowledge presumed for a dealer possessing goods from multiple thefts or buying far below market value.

State v. Lawrence (Minn. 1981): two rules

Cannot be convicted of both stealing and receiving the same item; hiding stolen property is a continuing offense so the limitations period does not start while it stays hidden.

BEDANF mnemonic

Breaking, Entering, Dwelling, of ANother, in the Night, with intent to commit a Felony inside (common law burglary).

Modern burglary: changes (lecture)

No breaking, no night requirement, any building/store/office/locked car, and intent to commit a felony or any theft (even misdemeanor shoplifting) at the moment of entry. Cases: Clark, Martinez, Edwards, Lewis.

State v. Tixier (N.M. App. 1976): lecture

Broke a glass pane on an auto shop door and reached half an inch inside, tripping a light beam alarm: entry complete.

Champlin vs. Johnson

Champlin (Wis. 1978) and MPC: entering a place open to the public is with consent, so stealing is theft. Johnson (Ill. 2019): entering Walmart intending to steal is commercial burglary because stores invite only honest shoppers.

People v. Myles (Cal. App. 2023): lecture version

Homeless man with delusions broke in, ate ice cream, stayed on the couch believing it was his home: a genuine belief of ownership negates intent to steal, so burglary reversed (textbook: jury instruction error).

State v. Begaye (N.M. 2023): lecture

Smashing one store window to steal cannot be punished as both burglary and breaking and entering (double jeopardy).

Trespass vs. burglary

Trespass is unlawful entry without intent to commit a crime inside; it is a lesser included offense of burglary.