Burglary Basics

The crime of burglary defined, with real-world examples.

The crime of burglary involves the unlawful entry into a building, coupled with the intent to commit a certain crime like theft or larceny, or any crime that's classified as a felony.

The criminal statutes on the books in each state provide their own specific definition of what constitutes burglary. These definitions have evolved over the years. In the past, some jurisdictions limited burglary to a breaking and entering that occurred in the nighttime hours, for example. Read on to learn how burglary is defined nowadays and to see real-world examples of burglary.

Legal Definition of Burglary

Although the specific language in criminal statutes defining buglary may be a little different from state to state, a burglary typically occurs when a culprit:

• breaks into and
• enters
• a building
• without consent, and
• with the intent to commit a felony or to steal property, even if the theft itself would only be a misdemeanor.

What distinguishes the felony of burglary from less serious misdemeanors such as trespassing is that, with burglary, the prosecution has to prove that a defendant intended to commit a felony (not necessarily involving stealing) or a theft inside a building at the very moment the defendant entered.

Degrees of burglary exist in some jurisdictions. The danger of physical injury is greatest when a burglar enters an inhabited building so, in many states, this constitutes first degree burglary. Under some statutes, entry at night rather than in the daytime also constitutes a first degree burglary, regardless of whether a building is inhabited.

Burglary: Case Example 1

Facts: Phil O'Nee is charged with burglary. The prosecution claims that Phil, wanting a birthday present for his girlfriend, went into a drugstore and took a bottle of perfume from the cosmetics area. Phil admits taking the perfume and asks the judge to convict him only of petty theft, a misdemeanor.

Verdict: Phil will be convicted of burglary if the prosecution proves that Phil intended to steal the perfume at the moment he entered the drugstore. One way the prosecution might prove Phil's intent to steal is to show that Phil told a friend ahead of time that Phil planned to steal the perfume. Another way the prosecution might prove Phil's intent to steal is to show that Phil went into the drugstore carrying a large sack in which he could conceal the perfume bottle.

The "Breaking and Entering" and "Building" Requirements

Years ago burglary laws were more rigid, and they required the government to prove that a defendant forced open a door, a window, or some other part of a building to gain entry. Now, going into a building without consent through an open window or an unlocked door constitutes a break and entry for purposes of almost all burglary statutes. Even a partial entry can constitute a burglary. For example, assume that the police arrest a suspect just as the suspect reaches her arm through an open window. If the other requirements are met, one arm in is sufficient entry to constitute a burglary.

Similarly, in early days, the burglary laws applied only to homes and then only if the burglary occurred at night. Burglary laws now extend to almost all kinds of structures, even portable ones like cars, boats, and mobile homes. Shops, barns, stables, and outhouses are some of the other structures covered by modern burglary laws.

Intent to Commit Any Felony Will Often Do

The word "burglary" probably calls to mind a masked crook with a sack breaking into a residence and stealing personal property. In reality, the crime of burglary is broader than that. Entry into a building with the specific intent to commit any type of felony crime often satisfies burglary laws. For instance, a suspect may enter a building with the intent to burn it down or molest a child. Both are sufficient for burglary. This is why chronic petty thieves often end up with burglary convictions. By following their usual M.O. (modus operandi, or method of committing the crime), they make it easy for prosecutors to prove that they entered a shop with the intent to steal. (Learn more about common theft in Nolo's article Theft and Shoplifting.)

As long as a person enters a building intending to commit a crime, it's still a burglary even if the person is arrested or scared off before the crime can take place. With burglary, the key moment is the burglar's entrance into a building. If, at that moment, the burglar intends to commit a felony or steal property inside the building, a burglary has taken place even if no other crime actually takes place. On the other hand, it may constitute some other crime but not burglary if a culprit first decides to commit a crime only after entering a building.

Burglary: Case Example 2

Facts: Klaus Santo enters the home of his ex-wife Wilma by climbing down the inside of a chimney. Santo has previously threatened to harm his wife, and he has a tire iron protruding from his back pocket. Wilma hears Santo coming, runs to a neighbor's house, and calls the police. The police arrest Santo as he tries to run away through the back door.

Verdict: Santo has committed burglary. Santo entered Wilma's house without consent. The prior threats and the tire iron in his back pocket are circumstantial evidence showing that at the moment Santo entered her house, he intended to attack Wilma with a deadly weapon.

Now, assume that Santo offers evidence at trial that, at the time he came down Wilma's chimney, he'd been drinking heavily for three days and was too drunk to understand what he was doing. In some states, Santo's evidence would constitute a partial defense to a burglary charge. To be convicted of burglary, Santo must have had a specific intent to commit a felony. Some states would allow Santo to claim that he was so intoxicated that he was unable to form the required specific intent. The defense would be a partial one because Santo could still be convicted of the lesser crime of breaking into Wilma's home. (For more on common defenses to crimes, see Nolo's article Defenses to Criminal Charges.)