Burglary and Criminal Trespass in Massachusetts

Massachusetts protects people and their property from uninvited intruders with laws prohibiting burglary, criminal trespass, and related laws.

Burglary in Massachusetts: Definition and Elements

Massachusetts law retains its common law definition of burglary, defining it as breaking and entering into a dwelling at night with the intent to commit a felony inside.

Over time, lawmakers added burglary statutes, expanding the crime to protect additional structures, including buildings, ships, vessels, vehicles, and railroad cars. In addition to extending the protection beyond a place of habitation, the law now penalizes crimes occurring during the day, as well as the nighttime, and an invasion with the intent to commit a misdemeanor, as well as a felony.

This section covers the common elements and definitions related to these crimes.

Breaking. The law defines a breaking very broadly. It includes any action which violates the common security of a dwelling or building. This action includes physical movement such as opening a closed door, pushing up a partly raised window, or smashing a storm window. The action can also be a constructive breaking, whereby the intruder gains access by a manner other than physical force. Examples of this involve using trickery or fraud (say pretending to be a police officer to enter a home). Some statutes do not require the breaking element if the unauthorized entry happens at night and the offender has the intent to commit a felony.

Entering. Entering requires that someone or something actually enter into the structure after the breaking without permission to do so. It's not necessary that the intruder's entire body enter the premises; rather, merely the entry of a hand or foot qualifies. If the burglar uses an implement or tool to gain access into the structure, that too meets the statutory definition of entry. An example would be when the defendant used a long pole with a hook on the end to pull items across the living room floor and out the window.

Dwelling. A dwelling means any place where people live or a structure used as a place for sleeping, including any outbuildings near and used in connection with the main residence. Examples of dwelling could be a house, apartment, motel room, tent, garage, or barn.

Nighttime. At common law, in order to be called burglary, the offender had to commit the crime at night. Nighttime spans the time between one hour after sunset on one day and one hour before sunrise on the next day. While some of the burglary statutes require a nighttime entry, the laws also penalize daytime entries.

Intent to commit a crime. The last element of burglary concerns the defendant's state of mind at the time of the unauthorized entry. To be convicted of burglary, most offenses require that the defendant must have decided to commit a felony and then entered the structure for that purpose. One burglary statute punishes the offender who only had the intent to commit a misdemeanor. Notice that the intended crime does not have to be successful or completed; entering with a criminal intent satisfies this element of burglary and can lead to a conviction.

(Mass. Gen. Laws ch. 266, §§ 14 to 20; ch. 278, § 10 (2020).)

Burglary in Massachusetts: Penalties

Penalties for burglary in Massachusetts vary according to the circumstances of the crime, including time of day, whether someone was present or injured, the type of building involved, and whether the offender was armed. The penalties increase for second and subsequent convictions.

Burglary Occurring in the Nighttime

Burglary of a dwelling occurring at night carries some of the harshest of the burglary penalties. An offender who enters a home where someone is present can be looking at ten years to life in prison if the offender is armed with a dangerous weapon or commits assault. Being armed with a firearm increases the minimum prison sentence from ten to 15 years. An unarmed burglar faces up to 20 years in prison.

Similar to dwellings, burglary of buildings, ships, motor vehicles, and vessels can carry harsher penalties when the crime occurred at night. The maximum penalties range anywhere from a two-and-a-half-year jail sentence up to 20 years in prison. Minimum penalties apply when the offender is armed with a firearm and someone is present.

Burglary Occurring in the Daytime

For burglaries occurring during the daytime hours, the laws don't distinguish between those involving dwellings versus other buildings, ships, vehicles, and vessels. The same penalties generally apply.

When a burglary occurs during the day and someone is present, the offense carries a maximum ten-year prison sentence. If no one is present, the judge may impose the same prison sentence or a two-year jail sentence. For an armed daytime burglary, the judge must sentence the defendant to a minimum of seven years in prison or two years in jail.

Burglary and Intent to Commit a Misdemeanor

While most burglary crimes require the prosecutor to prove the defendant intended to commit a felony, an offender who breaks and enters during the day or night with the intent of committing a misdemeanor faces a six-month jail sentence and a $200 fine. This crime applies regardless of the type of property involved.

Possession of Burglar's Tools

Making or possessing burglar tools with the intent to use them as such carries penalties of up to ten years in prison or a $1,000 fine and two and a half years in jail. This crime includes having instruments for prying open doors and vaults or otherwise gaining entry or stealing from the property once inside.

(Mass. Gen. Laws ch. 266, §§ 14 to 18, 49 (2020).)

Criminal Trespass in Massachusetts: Crime and Penalties

A person commits criminal trespass by entering in or remaining on the private property of another after having been told not to do so by the rightful possessor of the property. Criminal trespass protects more than dwellings and buildings. Its protections extend to other private property, including boats, school busses, and improved or enclosed land, wharf, or pier.

Unlike burglary, criminal trespass does not require intent to commit a crime once inside the structure or on the property. And the penalties don't vary depending on the time of day at which the trespass occurred.

As defined, trespass requires "knowing" entry, which means that the defendant must have notice that the property was private. This element may be satisfied in several ways, including personal notification by the property owner (or another authorized person, like a manager or security guard), or conspicuously posted signs (such as "No Entry," "Private Property," or "No Trespassing").

Penalties for trespassing include up to 30 days in jail, a fine of up to $100, or both.

(Mass. Gen. Laws ch. 266, § 120 (2020).)

Talk to a Lawyer

If you've been charged with burglary, criminal trespass, or a related crime, or if you have questions about state laws, consult an experienced local criminal defense attorney. A knowledgeable attorney can review the unique facts of your situation and advise you on how the law will apply to your case.