The Open Garage Door
At 1845, dispatch sends Deputy Ortiz to a residential burglary in progress. The homeowner says she came home and saw a man in a gray hoodie run out of her open garage door and ride away on a BMX bike. Ortiz arrives six minutes later. The garage door is still open. The homeowner says nothing is missing, but a toolbox has been moved. A neighbor says she saw a man matching the description ride toward the park three blocks away. Eight minutes later, Ortiz finds a man in a gray hoodie, sweating, with a BMX bike, about two blocks from the home. The homeowner is available for an identification.
1. May Deputy Ortiz enter and search the home or garage? What legal authority applies, and what are the limits?
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Ortiz may enter if he has consent or exigent circumstances. The homeowner is present and can consent to a search of her home and garage. If she does not consent, Ortiz may conduct a protective sweep only if he reasonably believes a person is inside who poses a danger; a protective sweep is limited to places where a person could hide and does not authorize a full evidentiary search. The report of a burglary in progress, an open garage door, and a moved toolbox can support a reasonable belief that someone may still be inside, but the facts must be articulated.
Ortiz should first clear the garage and any immediately adjacent spaces, then ask the homeowner for consent to search further. He should not open drawers or search containers unless consent or a warrant covers them. If evidence is in plain view during a lawful entry, he may seize it.
2. Is a show-up identification with the homeowner permissible? What safeguards are required?
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A show-up near the scene and shortly after the crime is generally permissible if it is not unduly suggestive and is reliable under the totality of circumstances. The suspect was found eight minutes later, two blocks from the home, wearing clothing matching the description and with the described bicycle. That is good corroboration. But Ortiz must avoid suggesting the answer. He should tell the homeowner that a person has been detained, that she should not assume the person is the suspect, and that she should state whether she recognizes him and how certain she is.
Ortiz should document the exact words used, the lighting, the distance, the duration, and whether the suspect was handcuffed or in a patrol car. If the homeowner cannot identify him, Ortiz should not pressure her. A suggestive procedure can later undermine the identification in court.
3. What evidence and documentation should Ortiz develop for the burglary investigation?
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Ortiz should photograph and document the garage door, the moved toolbox, the point of entry, and any latent prints or DNA surfaces. He should interview the homeowner and neighbor separately, record their descriptions in their own words, and preserve body-camera footage. The bicycle, clothing, and any tools or property on the suspect should be photographed and collected with a chain of custody. If the suspect is arrested, Ortiz should note his statements and any spontaneous statements.
Ortiz should also determine whether the garage is attached to the habitation, because that affects whether the offense is burglary of a habitation or burglary of a building. He should not charge based on guesswork; the charging decision should match the entry and intent facts developed in the investigation.