The concept of burglary has evolved from covering only break-ins of a house at night to covering any unauthorized breaking and entry with the intent to commit a crime once inside. Burglary seeks to protect the owner or occupiers of a piece of property from unwanted intrusion, and also to prevent violence that could result from the discovery of a burglar inside one’s property. Many states break burglary into different degrees, with different elements and punishments for each degree.

Burglary: In Brief

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.

Burglary Overview

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; 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.

With that in mind, let’s take a look at the basic elements of burglary.

What Is Burglary?

The definition of burglary arises out of state law, thus it differs depending on the state. Each state has its own burglary statute with slightly different rules. 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 it’s 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 that’s been left ajar.

Constructive breaking, on the other hand, entails those means of gaining entry that don’t use physical force: threats, blackmail or fraud, for example.

However a burglar breaks in to the structure, they must also enter 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, 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 is capable of housing people or animals, or sheltering property. Houses certainly qualify under this definition, as do their outlying structure, such as garages. Stores and office buildings also qualify.

Breaking into a fenced-off area probably won’t qualify as burglary, however, since the area couldn’t act as a shelter for people, animals or property. For example, breaking into an amusement park after hours probably wouldn’t 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 the stores normal retail hours and steals an item, the person has committed a shoplifting crime, 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 don’t 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 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. Vandalism, for example.

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.

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 the burglary of the first degree. If the person broke in to the building and only subsequently formed the intent to commit a crime, most states will classify the burglary as second degree.

Many other factors will determine the degree of the burglary, so always check the specific law of the state you’re in.

Burglary Defenses

A defendant facing burglary charges needs a strong defense. Fortunately, defendants have several options available to counter a burglary accusation. These defenses range from claiming actual innocence to admitting the behavior in question but arguing that it didn’t in fact constitute burglary.

Before diving into the most common defenses to burglary charges, it will be useful to reexamine the elements of burglary that the prosecution must prove.

Burglary consists of:

  • The unauthorized breaking and entry
  • Into a building or occupied structure
  • With the intent to commit a crime inside.

Each of these elements forms a necessary component of the overall burglary charge, so if the prosecution fails to prove one element, the entire case will fail.

Actual Innocence

The most basic defense – and the one that most defendants will try – is a claim of actual innocence. In other words, this defense involves convincing the court that the defendant did not commit the acts in question.

The prosecution bears the burden of proving a defendant’s guilt beyond a reasonable doubt, so in order to defeat a burglary charge a defendant must create a plausible doubt in the minds of the jury as to whether the prosecution’s evidence truly demonstrates that they committed the crime.

Defendants can call the prosecution’s evidence into question in many ways, such as by presenting an alibi or creating doubt as to the scientific reliability of a forensic technique. If the defendant can successfully sow the seeds of doubt among the jury, then an acquittal is likely.

Affirmative Defenses

Another defense tactic consists of admitting to the court that the defendant engaged in the behavior described by the prosecution, but arguing that it does not amount to a crime. Essentially, this involves negating one or more of the elements of burglary listed above.

Defendants commonly make the argument that they had the consent of the owner or occupier of the property to enter, thus there was no unauthorized breaking and entry. This is a particularly effective defense under certain circumstances.

For instance, if a defendant had consent to enter a property and the owner/occupier never explicitly revoked that consent, the defendant has a strong argument that there was no unauthorized breaking and entry. Even if the defendant erroneously believed that they had permission to enter the property, the belief in the consent of the owner could be enough to defeat the burglary charge – assuming that the belief was reasonable.

Since burglary also involves the specific intent to commit a crime once inside a building, voluntary intoxication can act as a defense to the degree that it prevented the defendant from forming the required intent.

Finally, the defendant could argue that someone entrapped them by convincing them to commit the crime when they otherwise would not have. Entrapment is difficult to prove, but it can act as a defense to burglary if sufficiently supported by the evidence.

Burglary Penalties and Sentencing