14.1: BURGLARY

Although burglary is often associated with theft, it is actually an enhanced form of trespassing. At early common law, burglary was the invasion of a man’s castle at nighttime, with a sinister purpose. Modern jurisdictions have done away with the common-law attendant circumstances and criminalize the unlawful entry into almost any structure or vehicle, at any time of day. Burglary has the elements of criminal act, criminal intent, and attendant circumstances.

Burglary Act

The criminal act element required for burglary varies, depending on the jurisdiction. Many jurisdictions require breaking and entering into the area described in the burglary statute (Mass. Gen. Laws ch. 266 § 14, 2011). Some jurisdictions and the Model Penal Code only require entering (Model Penal Code § 221.1). Other jurisdictions include remaining in the criminal act element (Fla. Stat. Ann. § 810.02(b)).

When criminal breaking is required, generally any physical force used to enter the burglarized area is sufficient—even pushing open a closed door (Commonwealth v. Hallums, 2011). Entry is generally partial or complete intrusion of either the defendant, the defendant’s body part, or a tool or instrument (People v. Nible, 2011). In some jurisdictions, the entry must be unauthorized (State v. Hall, 2011), while in others, it could be lawful (People v. Nunley, 2011). The Model Penal Code makes an exception for “premises…open to the public” or when the defendant is “licensed or privileged to enter” (Model Penal Code § 221.1(1)). Remaining means that the defendant lingers in the burglarized area after an initial lawful or unlawful entry (State v. Allen, 2011).

Example of Burglary Act 

Jed uses a burglar tool to remove the window screen of a residence. The window is open, so once Jed removes the screen, he places both hands on the sill, and begins to launch himself upward. The occupant of the residence, who was watching Jed from inside, slams the window down on Jed’s hands. Jed has probably committed the criminal act element required for burglary in many jurisdictions. When Jed removed the window screen, he committed a breaking. When Jed placed his hands on the windowsill, his fingers intruded into the residence, which satisfies the entry requirement. Thus, Jed may be subject to a prosecution for burglary rather than attempted burglary, even though he never actually damaged or broke the barrier of the residence or managed to gain complete access to the interior.

Burglary Intent

Depending on the jurisdiction, the criminal intent element required for burglary is typically the general intent or knowingly to commit the criminal act, with the specific intent or purposely to commit a felony (Mass. Gen. Laws ch. 266 § 14, 2011), any crime (Connecticut Criminal Jury Instructions §53a-102, 2011), or a felony, grand, or petty theft once inside the burglarized area (Cal. Penal Code § 459, 2011). The Model Penal Code describes the criminal intent element as “purpose to commit a crime therein” (Model Penal Code § 221.1(1)).

Example of a Case Lacking Burglary Intent

Hans dares Christian to break into a house in their neighborhood that is reputed to be “haunted.” Christian goes up to the front door of the house, shoves it open, steps inside the front hallway, and then hurriedly dashes back outside. Christian probably does not have the criminal intent element required for burglary in this scenario. Although Christian committed the criminal act of breaking and entering, Christian did not have the intent to commit a crime once inside. Christian’s conduct is probably criminal, but it is most likely a criminal trespass, not burglary.

Burglary Attendant Circumstances

Depending on the jurisdiction, burglary often includes the attendant circumstance that the area entered is a structure, building, or vehicle belonging to another (Oklahoma Uniform Jury Instructions No. CR 5-13, 2011). However, modern jurisdictions have eliminated the requirement that the property belong to another (Cal. Penal Code § 459, 2011) and prohibit burglarizing property owned by the defendant, such as a landlord burglarizing a tenant’s apartment. Some jurisdictions require a structure or building to be occupied (Iowa Code § 713.1, 2011), or require it to be a dwelling (Connecticut Criminal Jury Instructions §53a-102, 2011), and require a vehicle to be locked (Cal. Penal Code § 459, 2011). A few jurisdictions also retain the common-law attendant circumstance that the burglary take place at nighttime (Mass. Gen. Laws ch. 266 § 15, 2011).

Structure or building generally includes a house, room, apartment, shop, barn, or even a tent (Cal. Penal Code § 459, 2011). The Model Penal Code expressly excludes abandoned structures or buildings (Model Penal Code § 221.1(1)). A dwelling is a building used for lodging at night (Connecticut Criminal Jury Instructions § 53a-102, 2011). Occupied means that the structure or building can be used for business or for lodging at night and does not necessarily require the actual presence of a person or victim when the criminal act takes place (Iowa Code § 702.12). Nighttime means the time after sunset and before sunrise when it is too dark to clearly see a defendant’s face (State v. Reavis, 2011).

Example of Burglary Attendant Circumstances

Susan breaks down a door and steps inside a building with the intent to commit arson, a felony, once inside. If the building is an empty child’s tiny plastic playhouse, the attendant circumstance that the structure be occupied or a dwelling is lacking. If it is twelve noon, the attendant circumstance that the criminal act takes place at nighttime is lacking. If it is pitch black outside and 10 p.m. and the building is Susan’s ex-boyfriend’s residence, then Susan has most likely committed burglary and may be subject to prosecution for and conviction of this offense.

Burglary Grading

Burglary is typically divided into degrees (Iowa Code §§ 713.3, 713.5, 713.6A, 2011). Firstdegree burglary is generally a serious felony that can serve as the predicate felony for firstdegree felony murder (Cal. Penal Code § 189, 2011) and a strike in states that have three strikes statutes (Cal. Penal Code § 1192.7, 2011). Factors that can elevate burglary grading are the use or possession of a weapon, the entry into a residence, dwelling, or building where people are present, the commission of burglary at nighttime, or the infliction of injury or death (Mass. Gen. Laws ch. 266 § 14, 2011). Second- and third-degree burglary generally are still felonies, although less serious than first-degree burglary (Ala. Code § 13A-7-7, 2011). The Model Penal Code grades burglary as a felony of the second degree if perpetrated in the dwelling of another at night, or if the actor purposely, knowingly, or recklessly inflicts or attempts to inflict bodily injury or is armed with explosives or a deadly weapon. Otherwise, the Model Penal Code grades burglary as a felony of the third degree (Model Penal Code § 221.1(2)).

Keep in mind that a defendant can be prosecuted for burglary even if the felony or crime intended after entry never takes place. In addition, if the defendant actually commits the felony or crime after entry, the defendant can be prosecuted for both burglary and the completed crime without violating the protection against double jeopardy in the Fifth Amendment to the federal Constitution. The Model Penal Code states that a “person may not be convicted both for burglary and for the offense which it was his purpose to commit after the burglarious entry…unless the additional offense constitutes a felony of the first or second degree” (Model Penal Code § 221.1(3)).