Burglary is typically defined as the unlawful entry into almost any structure (not just a home or business) with the intent to commit any crime inside (not just theft/larceny). No physical breaking and entering is required; the offender may simply trespass through an open door. Unlike robbery, which involves use of force or fear to obtain another person’s property, there is usually no victim present during a burglary.
For example, Dan enters Victor’s boathouse through an open window, intending to steal Victor’s boat. Finding the boat is gone, Dan returns home. Though he took nothing, Dan has committed burglary.
The crime of burglary has been around for a long time. It originally developed under the common law, but states have incorporated the basic idea of burglary into their penal codes, albeit with some slight modifications. For instance, under the common law definition of burglary, the crime had to take place in the dwelling house of another at night. Most states have subsequently broadened the definition of burglary to include businesses and illegal entries during the day.
Burglary developed to protect a person’s interest in their home and to prevent violence, not to protect against theft. Other laws criminalize the taking of property; instead, burglary is meant to safeguard the sanctity of a person’s home and to protect against the possible violence that could arise if someone discovers a burglar in their house.
The Elements of a Burglary
The definition of burglary arises out of state law, and thus, the components of the crime may differ slightly depending on the state. Federal criminal law incorporates the meaning of burglary used by the state that the crime occurred in.
Most states and the Model Penal Code use the same basic definition of burglary, however. In those states, burglary is:
- The unauthorized breaking and entry;
- into a building or occupied structure;
- with the intent to commit a crime inside.
Each of those elements must be present in order to convict a defendant accused of burglary, so its important to examine each of them a little more closely.
Breaking and Entry
The first element of burglary involves the burglar breaking into and entering a structure. The breaking-in can occur in two ways: actual and constructive.
Actual breaking involves physical force: picking a lock or kicking a door in, for example. It could even be a very slight use of force, such as pushing open a door thats been left ajar.
Constructive breaking, on the other hand, entails means of gaining entry that dont use physical force: threats, blackmail or fraud, for example.
However a burglar breaks in to the structure, they must also enter the structure in order to satisfy this element. The entry can be minimal; the burglar doesnt have to actually walk into a building in order to commit a burglary. Sticking a hand through a window counts as an entry sufficient to support a charge of burglary.
It is also important to note that the entry has to occur without the consent of the person occupying the property.
Building or Occupied Structure
As mentioned above, under the common law crime of burglary, the accused burglar had to break into someone else’s home. Under the modern definition, a person commits burglary if they break into almost any type of building or structure, so long as the structure meets certain requirements.
Usually, states require that the structure be capable of either housing people or animals, or sheltering property. Houses certainly qualify under this definition, as do their outlying structures, such as garages and sheds. Stores and office buildings also qualify.
Breaking into a fenced-off area may not qualify as burglary, however, since such areas generally do not act as a shelter for people, animals, or property. For example, breaking into an amusement park after hours probably wouldnt meet the requirements for a charge of burglary, but breaking into a building on the amusement park property probably would.
The structure must also be closed to the public at the time of the burglary. If a person enters a store during its normal retail hours and steals an item, the person has committed a shoplifting crime, and not a burglary. If, on the other hand, the person waits until after the store has closed, picks the lock on the front door and steals the same item, then a burglary has occurred.
Abandoned buildings generally do not qualify as buildings or structures for the purposes of burglary charges. Breaking and entering into an abandoned building may result in other criminal charges, but most likely not a burglary charge.
In order for a break-in to constitute a burglary, the person breaking in must have the intent to commit a crime inside the building. Usually, this crime is theft, but other crimes can render a break-in a burglary as well.
The crime has to exist separately from the break-in itself. For example, if an individual uses fraud – which is a crime – to gain after-hours entrance to a building to view a piece of art, no burglary has taken place since the only crime that occurred was the fraud used to gain entrance to the building. Of course, taking the art would elevate the crime to one of burglary.
The timing of the intent also becomes important when determining the degree of a burglary charge. For instance, if a person intended to commit the crime in question before they broke in to the building, then most states will consider this to be a burglary of the first degree (more serious). If the person broke into a building and only subsequently formed the intent to commit a crime, most states will classify the burglary as second degree.