When most people think of burglary, they think of a thief in a black outfit sneaking into someone's home or a museum in the middle of the night. While such activity definitely counts as burglary, the legal definition applies to a much broader range of activities. Though state laws differ slightly in how they categorize burglaries, it is a crime in every state and one that often comes with significant penalties.
What Constitutes Burglary?
A person commits burglary when he enters a building with the intent to commit a crime within. To show that a burglary occurred, a prosecutor must produce evidence on the following points, and convince a jury beyond a reasonable doubt on each of them.
A building or structure
It used to be that burglary laws applied only when someone broke into another person's house or dwelling. Today, the law prohibits anyone from entering into any structure, and not just a home. Many state laws identify the types of structures that count as a building for burglary crimes. They include stores, school buildings, houseboats, trailer homes, and even tents or campsites. Some states also differentiate between burglary of a commercial space and residential burglary, punishing residential burglary more harshly. For residential burglary, the building must be a home, apartment, or some type of building in which a person lives.
The prosecutor must also prove that the accused entered the building illegally or without permission. This means that the building must be either a private one or a public one that was not open or otherwise publicly accessible. Illegal entry also applies to a person who enters a structure that’s open to the public, but with the intent to commit a crime inside—like a person who walks into a store with the intent to steal merchandise. The reasoning is that the owner’s permission has been extended only to those who enter for legitimate purposes; when the thief entered for illegal purposes, that permission did not apply, and the entry became one without permission.
The crime of burglary also requires that the defendant enter the building. A person’s entire body need not enter—the crime still occurs if the person simply reaches into a building or uses a tool to perform the illegal entry.
Use of force
Burglary in some states also involves “breaking” into the building. Any type of forced entry, no matter how minimal, is enough to satisfy this requirement. For example, it's enough for an accused person to open a door knob or lift an unlocked window to satisfy the use of force requirement. Many states, however, have dispensed with the requirement that the defendant break in; thus, walking freely through a store entrance, intending to steal goods, can be a burglary (see “Illegal entry,” above).
Intent to commit a felony
To convict someone of burglary, a prosecutor must prove that the person entered the building with the intent to commit a felony or a theft. Typically, a person convicted of burglary intends to enter the building in order to steal something, though any felony (and, in some states, misdemeanor thefts) will suffice. This means, for example, that it's still a burglary when a person enters with an intent to steal but later changes his mind. Conversely, entering without the intent to commit a crime, and making that decision after you’ve entered, does not constitute burglary. For example, a guest who comes to a party with no illegal plans, but who sees a piece of artwork in the living room and there and then decides to steal it, has committed theft but not burglary.
Prosecutors typically show criminal intent from the circumstances of the case, and do not have to show exactly what was in the accused person's mind at the time. For example, if the partygoer described above came to the party with a suitcase and an elaborate story of why he happened to have that with him (“Oh, I just came from the airport!”), he would have a tough time defeating a burglary charge if he was caught leaving the home with the stolen artwork in an otherwise empty suitcase.
Burglary is a serious crime and one that is typically charged as a felony offense, though some states allow for misdemeanor burglary charges in certain situations. A burglary conviction comes with several possible penalties, though the possible sentences for burglary convictions differ widely among states.
Jail or prison. Burglary convictions can bring a wide range of prison or jail sentences. A conviction for a felony burglary offense has a potential sentence that exceeds one year in a state prison. Depending on the state and circumstances of the case, a felony burglary conviction can result in 20 years or more in prison. A misdemeanor burglary charge can result in a sentence of up to a year in jail.
Fines. Burglary fines can be significant. Depending on the state, a fine for burglary can be $100,000 or more for a felony conviction. Misdemeanor fines are usually less than $1,000.
Restitution. Though you can commit a burglary without taking or damaging any property, a burglary that does result in property loss can also come with a restitution sentence. When a court orders you to pay restitution, you have to pay victims to compensate them for their losses, allowing them to repair or replace the damaged property. Restitution is in addition to any fines the court imposes.
Probation. Probation sentences are sometimes imposed in burglary cases. A judge can sentence a person to probation either independently of a prison or jail sentence or in addition to such a sentence. When you're on probation, you must comply with all the court's conditions or you risk having to serve the original jail or prison sentence. For example, courts usually require a person on probation to regularly report to a probation officer, as well as submit to drug testing, home searches, or other conditions.
Burglary is a serious charge, and you should never make any decisions about your case without first talking to an experienced local defense attorney. A local criminal defense lawyer is the only person who can evaluate the strength of the evidence against you, assess any defenses you might have, and give you advice based on the laws of your state. Most importantly, a local and experienced lawyer will know how judges and prosecutors handle cases like yours—this information is known only to people who regularly practice criminal law in your area.