Burglary Overview

Burglary is typically defined as unlawful entry into a structure with the intent to commit a crime inside. Burglary is not limited to a home or business. It can include unlawful entry into almost any structure that the defendant does not have permission to enter.


Burglary can involve any crime, not just theft or larceny. The crime can be a felony or misdemeanor. As long as there is the intent to commit a crime, it can constitute burglary.

There is no breaking and entering requirement. The offender may trespass through an open door. This is different from robbery, which involves the use of force or fear to obtain another person's property. There is usually no victim present during a burglary.

This article provides an overview of burglary charges, including their roots in common law.

History of the Crime of Burglary

Burglary has been around for centuries. It originally developed under common law, but states have incorporated the crime of burglary into their penal codes. Most states have modified the legal definition of burglary.

For instance, under the common law definition of burglary, the crime had to take place at night in the dwelling of another person. Most states have broadened the definition to include businesses. They also no longer require that the entry take place at night.

Lawmakers created burglary laws to safeguard people's homes and prevent violence. The objective had little to do with preventing theft – there were other laws that focused on the taking of property. Burglary laws exist to preserve the sanctity of a dwelling and to shield residents from harmful encounters with burglars in their houses.

Elements of a Burglary

Every state has its own definition of burglary. This means that elements of the crime may differ depending on where you live. There is also something called the Model Penal Code, developed in 1962 by the American Law Institute. This is not a federal or state law. It is a code designed to help state legislatures develop their own definitions and statutes for criminal offenses.

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 structure
  3. With the intent to commit a crime inside

All elements must be present to convict a defendant of burglary. It is important to examine each of them in more detail.

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. For example, an offender may pick a lock, smash a window, or kick a door in. But the force does not have to be strong. A slight use of force will suffice. Slight force could involve an individual pushing open a door or opening a window left ajar.

Constructive breaking is quite different from actual breaking. Constructive breaking refers to methods of gaining entry that do not use physical force. An example of constructive breaking would involve blackmail or fraud. Another example of constructive breaking would be if an offender pretended to be a utility worker or door-to-door salesperson to gain entry.

No matter how a burglar breaks in, they must also enter the structure to satisfy this element. The entry can be minimal – the offender doesn't have to walk into a building to commit burglary. Sticking their hand through a window counts as an entry sufficient to support a charge of burglary.

Importantly, the entry must occur without the consent of the person occupying the property. If the property owner gave express or implied consent for the defendant to enter their home, the offender's criminal defense attorney would have a strong case for dismissing the charges.

Building or Occupied Structure

As mentioned above, the common law crime of burglary governed intrusions into a personal residence. Under the modern definition of burglary, the offender can break into any type of building or structure as long as it meets certain requirements.

Most states require that the structure is capable of either housing people or animals. Some states broaden the definition of a structure to include a building designed to shelter property. Houses qualify under this definition, as do their outlying structures, such as garages and sheds. Stores and office buildings also qualify.

An interesting question is whether breaking into a fenced-off area might be sufficient for a charge of burglary. Most jurisdictions agree that since a fenced-off area is not meant to shelter people, animals, or property, it does not qualify as a structure.

Breaking into an amusement park after hours probably won't meet the requirements for a charge of burglary. However, breaking into a building inside the amusement park would.

The structure must also be closed to the public at the time of the burglary. If a person enters a store during normal retail hours and steals an item from the shelf, the person has committed shoplifting but not 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, such as criminal trespass, but not a burglary charge.


One of the most critical elements of a burglary is the offender's intent to commit a crime inside the building. Usually, this crime is theft or petty theft. However, other crimes can also result in a burglary.

Importantly, the offender's intended crime must exist separately from the break-in. For example, if an individual uses fraud to gain entry into a closed museum so they can view a beautiful piece of art, no burglary has taken place. The only crime committed here was the fraud used to gain entrance to the building. Now, if the individual proceeds to steal a painting while in the museum, the offense elevates to burglary.

The timing of the intent can be important. Some states have degrees of burglary, and when the intent entered the defendant's mind determines the degree of the burglary charge. For instance, most states will charge a person with burglary of the first degree if they planned on committing the crime before they broke into the building. But if they only developed the necessary intent after they entered the structure, it would be a second-degree burglary.

Some states, like California, base the degree of burglary on whether the structure was a residence or another type of structure, such as a store or business. If an offender breaks into a dwelling, it will constitute first-degree burglary.

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

Common Defenses to a Burglary Charge

If the state has leveled misdemeanor or felony charges against you for burglary, you have rights. Your criminal defense lawyer will launch a defense on your behalf. Once they have reviewed the state's case, they will see if there are any defenses available to you.

Some of the most common defenses to a burglary charge include:

  • Innocence: If you did not commit the break-in, your criminal defense attorney will argue that you are actually innocent of the charges. The state has the burden of proof in criminal cases to convict you of burglary. It is their job to demonstrate that you committed the crime. However, you still need to present your defense. Your criminal defense lawyer can submit evidence that shows you were not at the location when the alleged crime was committed. They can also submit an alibi that proves you did not commit the crime.
  • Lack of intent: The state must prove that you intended to commit a crime when you broke into the structure or dwelling. This is usually the hardest part of the state's case. One way they can prove intent is to prove that you had a deadly weapon during the break-in, such as a crowbar. Or that you possessed burglary tools at the time of your arrest. The state can also search your cell phone records for a text message stating what you planned to do inside the building.
  • Permission or consent: To be convicted of a burglary offense, the prosecution must show that you were unlawfully inside the premises. If your criminal defense attorney can prove that you had permission or consent to enter the property, there is a good chance the charges will be dismissed.

Of course, every case is different. Your criminal defense lawyer may be able to pose another burglary defense. Their defense strategy depends on the facts of your case. Burglary is a serious charge. You want to make sure you consider all possible defenses.

Find a Local Attorney for Your Burglary Case

If you have been charged with felony burglary or any felony offense, you should speak to a qualified criminal defense attorney. This is a serious crime. There is a lot at stake if you receive a burglary conviction. You may be facing jail time or a prison sentence. At a minimum, you will end up with a criminal record.

When the police arrest you, they will take you to the county jail. Once there, you can request legal representation.

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