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Burglary Overview

Created by FindLaw's team of legal writers and editors.

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 centuries. 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 laws developed to safeguard people's homes and to prevent violence, not to protect against theft. Other laws criminalize the taking of property; instead, burglary laws are meant to preserve the sanctity of a dwelling and to shield residents from harmful encounters with burglars 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.

Most states and the Model Penal Code use the same basic definition of burglary, which is:

  1. An unauthorized breaking and entry
  2. into a building or occupied structure
  3. with the intent to commit a crime inside.

All of those elements must be present in order to convict a defendant of burglary, so it's important to examine each of them a little more closely.

Breaking and Entering

The first element of burglary involves 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 that's been left ajar.

Constructive breaking, on the other hand, involves methods of gaining entry that don't use physical force: blackmail or fraud, for example.

No matter how burglars break in, they must also enter the structure in order to satisfy this element. The entry can be minimal; the burglar doesn't 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's 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, the common law crime of burglary focused on intrusions into one's personal residence. Under the modern definition, individuals commit burglary if they break into almost any type of building or structure, so long as it 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 might not be sufficient, however, since such areas generally do not act as a shelter for people, animals, or property. For example, breaking into an amusement park's grounds after hours probably wouldn't meet the requirements for a charge of burglary, but breaking into a building inside the amusement park likely 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 from the shelf, 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 structures for the purposes of burglary charges. Breaking into an uninhabited, unused building may result in other criminal charges, but most likely not a burglary accusation.

Intent

In order for a break-in to constitute a burglary, the perpetrator must have the mental 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 for the purpose of viewing a beautiful 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, stealing the artwork would elevate the offense to one of burglary.

The timing of the intent can be important when determining the degree of a burglary charge. For instance, if a person intended to commit the crime in question before breaking into the building, 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.

Many other factors may affect the degree or seriousness of a burglary, so it's important to check the specific laws of your state.

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