5.3 Burglary

Burglary is a serious property crime involving unlawful entry into a structure with criminal intent. It typically requires breaking and entering, a dwelling, nighttime, and intent to commit a felony. These elements vary by jurisdiction.

Modern statutes have expanded burglary's scope beyond common law. Many now include non-dwelling structures, daytime offenses, and intent for any crime. Defenses and grading depend on specific circumstances and applicable laws.

Elements of burglary

• Burglary is a serious property crime that involves the unlawful entry into a structure with the intent to commit a crime inside
• The specific elements required for burglary vary by jurisdiction, but generally include breaking and entering, into the dwelling of another, at night, with the intent to commit a felony

Breaking and entering

• Involves the use of force to gain entry into a structure, such as breaking a window or lock
• Can also include constructive breaking, where entry is gained through fraud or trickery (convincing the occupant to let the burglar inside under false pretenses)
• The amount of force required is minimal, and can be as slight as pushing open an unlocked door

Into a dwelling

• Burglary statutes typically require the unlawful entry to be into a dwelling, which is a place where people live and sleep
• Dwellings can include houses, apartments, hotel rooms, and in some jurisdictions, occupied vehicles like RVs
• Structures that are not dwellings, such as commercial buildings, may be covered under separate statutes

Of another

• The dwelling must belong to someone other than the burglar
• A person cannot burglarize their own home, even if they co-own it with another person
• Landlords generally cannot be charged with burglarizing their tenant's dwelling, as they have a legal right to enter

At night

• Common law burglary required the crime to occur at night, typically defined as the period between sunset and sunrise
• Many modern statutes have eliminated this requirement, making burglary a crime regardless of the time of day
• Some states distinguish between nighttime and daytime burglary, with harsher penalties for nighttime offenses

With intent to commit a felony

• The burglar must have the specific intent to commit a felony inside the dwelling at the time of the unlawful entry
• The intended felony is often theft, but can include other crimes such as assault, rape, or arson
• The prosecution must prove the burglar's state of mind, which can be inferred from the circumstances (burglar carrying tools or weapons)

Statutory variations

• While the common law definition of burglary was limited in scope, modern statutes have expanded the crime to cover a wider range of conduct
• Jurisdictions vary in terms of what structures are included, the time of day requirement, and the mental state necessary for conviction

Structures included

• In addition to dwellings, many states have expanded burglary to cover unlawful entry into other structures:
  • Commercial buildings (offices, stores, warehouses)
  • Educational facilities (schools, universities)
  • Places of worship (churches, mosques, synagogues)
  • Fenced enclosures and secured portions of open areas
• Some jurisdictions have separate offenses for burglary of a dwelling vs. non-dwelling structures, with harsher penalties for dwelling burglaries

Time of day

• Many states have eliminated the nighttime requirement altogether, making burglary a crime regardless of when it occurs
• Some states still distinguish between nighttime and daytime burglary, with more severe punishments for nighttime offenses
• A few states have different degrees of burglary based on the time of day (first-degree for nighttime, second-degree for daytime)

Intent requirements

• Statutes vary in the mental state required for burglary conviction:
  • Specific intent to commit a particular felony inside the structure
  • General intent to commit any crime once inside
  • Reckless disregard for whether a crime will occur as a result of the unlawful entry
• Some states have eliminated the felony requirement, making burglary a crime if the burglar intends to commit any offense, even a misdemeanor

Breaking requirement

• Breaking involves the use of force, however slight, to remove an obstacle to entry
• Actual breaking requires physical force to create an opening, while constructive breaking involves a non-forcible entry gained by fraud or threat
• The breaking must be unauthorized, so using a key with the occupant's consent would not qualify

Actual vs constructive breaking

• Actual breaking is the physical application of force to gain entry, such as:
  • Breaking a window or door
  • Picking a lock or using a credit card to open a latch
  • Cutting a screen or climbing over a fence
• Constructive breaking is a non-forcible entry gained by trickery, such as:
  • Posing as a repairman to be let inside
  • Threatening the occupant to open the door
  • Blackmailing someone for their keys

Opening closed vs further opening

• Any force used to create an opening is sufficient for breaking, even if the structure was partially open to begin with
• Examples of opening closed:
  • Opening an unlocked door or window
  • Pushing open a door that is ajar
  • Sliding open an unlocked screen door
• Examples of further opening:
  • Enlarging a hole that is too small to enter
  • Kicking open a door that is chained shut
  • Cutting through a screen on an open window

Gaining entry by trick or fraud

• Constructive breaking includes entries gained by fraud, trick, or threat, even without physical force
• Examples of entry by trick:
  • Pretending to be a utility worker to be let inside
  • Posing as a stranded motorist to gain entry to use a phone
• Examples of entry by threat:
  • Telling the occupant you have a weapon to force them to open the door
  • Threatening to hurt a family member if not allowed inside
• Once lawfully inside, subsequent unlawful acts can qualify as burglary (shoplifting after being allowed in store)

Entering requirement

• In addition to breaking, burglary requires an entry into the structure
• Entry is established by evidence that any part of the burglar's body, or an instrument under their control, penetrated the structure's outer boundary
• The entry can be minimal, and need not involve the whole body

Physical entry of any part of body

• Entry is usually proven by evidence that some part of the burglar's body crossed the threshold of the structure
• Examples of body parts establishing entry:
  • Reaching an arm inside a broken window
  • Sticking a foot through an opened doorway
  • Leaning head inside to look around
• Physical entry of an accomplice can also establish entry for all burglars involved in the crime

Instrument for felonious purpose

• Entry can also be established by an instrument inserted into the structure for a felonious purpose
• The instrument must be under the burglar's physical control and intended to be used to commit a crime inside
• Examples of entry by instrument:
  • Using a hook and pole to steal an item just inside a window
  • Inserting a crowbar to pry open a cash register
  • Placing a gun inside to shoot the occupant
• Inserting an instrument without felonious purpose is not sufficient (placing a coat hanger inside car to unlock door)

Dwelling requirement

• Common law burglary was limited to unlawful entries into dwellings, which are structures where people regularly sleep at night
• The dwelling requirement was based on the heightened danger and violation of privacy when a home is burglarized
• Modern statutes vary in whether they limit burglary to dwellings or expand it to other structures

Structures included vs excluded

• Dwellings typically include any enclosed space used for overnight accommodation:
  • Houses and apartments
  • Hotel and motel rooms
  • Dormitories and barracks
  • Mobile homes and recreational vehicles
• Structures generally not considered dwellings:
  • Commercial buildings (offices, stores)
  • Abandoned or uninhabitable buildings
  • Unenclosed areas around a dwelling (yard, porch)
  • Vehicles not equipped for overnight accommodation

Attached vs unattached outbuildings

• Outbuildings are smaller structures located on the same property as a dwelling
• Attached outbuildings with direct access to the dwelling are usually considered part of the dwelling (attached garage, enclosed porch)
• Unattached outbuildings are generally not considered part of the dwelling unless used for overnight accommodation (detached guesthouse)
• Examples of unattached outbuildings not covered:
  • Storage sheds and barns
  • Detached garages and carports
  • Greenhouses and pool houses

Occupied vs unoccupied

• Some jurisdictions require the dwelling to be occupied at the time of the burglary
• Occupation does not require the dweller to be physically present, only that it is their current place of lodging (house is occupied while owners are at work)
• Dwellings are considered unoccupied if the residents have moved out or are away for an extended period (summer vacation home during winter)
• Burglary of unoccupied dwellings may be covered by separate statutes with lesser penalties

Nighttime requirement

• Common law burglary was limited to unlawful entries that occurred at night
• The nighttime requirement was based on the increased danger and difficulty in detecting burglars in the dark
• Many modern burglary statutes have eliminated this requirement, making the offense the same regardless of time of day

Definitions of night

• Night was traditionally defined as the period between sunset and sunrise when there is not enough natural light to discern a person's face
• Some jurisdictions set specific times to define night for burglary (e.g. 30 minutes after sunset until 30 minutes before sunrise)
• Burglaries that begin during the day but continue into the night are considered nighttime burglaries
• Burglaries that begin at night but are not discovered until day are also considered nighttime burglaries

Burglary vs housebreaking

• Some jurisdictions distinguish between burglary committed at night and housebreaking committed during the day
• Housebreaking has the same elements as burglary except for the time of day
• Housebreaking is usually graded as a less serious offense than burglary, with lighter penalties
• Other jurisdictions use housebreaking to refer to burglary of a non-dwelling structure

Intent to commit felony

• Burglary is a specific intent crime, requiring the intent to commit a felony inside the structure at the time of unlawful entry
• The intended felony is often theft, but can include other offenses like assault, rape, or property destruction
• The burglar must have the felonious intent at the moment of entry, not formed after already inside

Felony vs misdemeanor

• Common law burglary required intent to commit a felony, which is a serious crime usually punishable by more than a year in prison
• Some modern statutes have expanded burglary to include intent to commit any crime, even misdemeanors punishable by less than a year
• Jurisdictions that maintain the felony requirement may have a separate offense of criminal trespass for unlawful entry with intent to commit a misdemeanor

Intended felony not completed

• The intended felony does not have to be successfully completed for burglary liability
• A burglar can be convicted even if they are caught or change their mind before committing the intended felony
• The prosecution only needs to prove the burglar's state of mind at the time of entry, not that any additional crime actually occurred
• Example: A burglar breaks into a home intending to steal valuables but is caught by the owner before taking anything. The burglary is still complete.

Evidence of intent

• Proving the burglar's intent to commit a crime can be challenging without direct evidence like a confession
• Intent is usually inferred from the surrounding circumstances that suggest the burglar's state of mind
• Examples of circumstantial evidence of felonious intent:
  • Burglar flees when confronted by occupant
  • Burglar carries tools useful for theft or assault (crowbar, weapon)
  • Rooms are ransacked and property is stacked up as if to steal
  • Occupant is threatened or attacked by burglar
• Lack of circumstantial evidence may suggest an innocent reason for entry (mistakenly entering the wrong apartment)

Defenses to burglary

• Defendants charged with burglary can raise various defenses to negate the elements of the crime
• Common defenses include consent, lack of breaking or entering, daytime entry, abandoned property, and mistake of fact
• The availability and effectiveness of defenses depend on the specific facts of the case and the applicable burglary statute

Consent of occupant

• A person who enters a dwelling with the occupant's consent cannot be guilty of burglary, even if they commit a crime once inside
• Consent can be express (occupant tells defendant they may enter) or implied (occupant leaves door unlocked for expected guest)
• The consent must be voluntary and not obtained by fraud or threat
• Example: A salesman who is invited into a home to make a pitch but then steals jewelry cannot be convicted of burglary due to the owner's consent to enter

Lack of breaking or entering

• If the defendant did not break into or enter the dwelling, they cannot be guilty of burglary
• Examples of lack of breaking:
  • Entering through an open door or window without using any force
  • Being carried into the dwelling involuntarily by another person
• Examples of lack of entry:
  • Reaching inside but not penetrating the outer boundary with body or instrument
  • Attempting to break in but being unsuccessful in creating an opening
• Lack of breaking or entering reduces the offense to attempted burglary or criminal trespass

Daytime entry

• In jurisdictions that maintain the nighttime requirement, a defendant cannot be convicted of burglary for an entry during the day
• The prosecution must prove the entry occurred at night, which is usually defined by statute (e.g. 30 minutes after sunset)
• If the entry was during the day, the offense may be reduced to criminal trespass or housebreaking
• Daytime entry is not a defense if burglary statute covers entries at any time of day

Abandoned property

• A defendant cannot burglarize property that has been permanently abandoned by the owner
• Property is abandoned if the owner has relinquished all rights and claims to it and left it open for others to take
• Examples of abandoned property:
  • A condemned building that is boarded up and not maintained
  • A vehicle left on the side of the road with no license plates
  • A dwelling vacated by tenants with no intention to return
• If property is only temporarily vacant, it is not considered abandoned (a summer home unoccupied during winter)

Mistake of fact

• A defendant who enters under a reasonable mistaken belief in their right to do so lacks the intent required for burglary
• Examples of potential mistake of fact defenses:
  • Entering the wrong apartment by accident due to intoxication or confusion
  • Mistakenly believing you have permission to enter from the occupant
  • Taking property under the mistaken belief that it is yours
• The mistaken belief must be both honest and reasonable under the circumstances
• An unreasonable mistake, like believing you can enter any unlocked home, is not a defense

Grading of burglary

• Burglary is graded as a felony due to the potential for violence and invasion of privacy
• Many jurisdictions have different degrees of burglary based on aggravating and mitigating factors
• Factors that increase the severity of the offense lead to higher degrees with harsher punishments

Aggravating vs mitigating factors

• Aggravating factors that can raise the degree of burglary:
  • Burglary of a dwelling rather than a non-dwelling
  • Burglary at night rather than during day
  • Possession of a deadly weapon during burglary
  • Infliction of injury or use of threat during burglary
• Mitigating factors that can lower the degree of burglary:
  • No weapon possessed during burglary
  • No person present in the structure during burglary
  • No damage or minimal damage to property
  • Defendant's youth or lack of criminal history

First degree vs second degree

• First-degree burglary is the most serious form, covering aggravated burglaries of dwellings
• Examples of first-degree burglary:
  • Armed burglary of an occupied apartment at night
  • Burglary of a house where an occupant is assaulted
  • Burglary by a defendant with a serious criminal record
• Second-degree burglary covers non-aggravated burglaries of dwellings and burglaries of non-dwellings
• Examples of second-degree burglary:
  • Unarmed burglary of an unoccupied house during the day
  • Burglary of a commercial building at night
  • Burglary by a first-time offender
• Some jurisdictions have third-degree burglary for the least serious offenses

Burglary vs related offenses

• Burglary overlaps with several other property and intrusion crimes
• Some related offenses are lesser included offenses of burglary, while others are separate crimes with distinct elements
• Defendants may be charged with burglary and related offenses for the same conduct

Criminal trespass

• Criminal trespass is the unlawful entry onto another's property without intent to commit a felony
• Trespass is a lesser included offense of burglary, covering entries with intent to commit misdemeanors or no further crime
• Examples of trespass vs burglary:
  • Entering an open garage to get out of the rain (trespass)
  • Entering a store after closing to steal merchandise (burglary)
• Trespass is generally a misdemeanor, while burglary is a felony