Burglary, Home Invasions, and Trespassing in Wisconsin

In Wisconsin, it's a crime to go onto someone else's property without permission. A person who does so could be charged with trespassing (a relatively minor offense) or burglary (a more serious crime). Some burglaries, such as armed burglaries and home invasions, are punished severely.

Understanding Burglary and Home Invasion Crimes in Wisconsin

Traditionally, burglary was defined as breaking and entering into a home at night with the intent to commit a felony inside. Today, most states (including Wisconsin) have done away with many of these narrow requirements, and a person commits burglary simply by entering into a building without permission and with the intent to commit any theft or felony inside.

What Is an Unlawful Entry?

The common law definition of burglary included "breaking" along with "entering." Breaking included actions such as forcing open a door or getting in by threats or fraud. Now, however, breaking is no longer required. It is enough for the defendant to simply to enter the building or structure without permission.

What If the Building Is Open to the Public?

A person who goes into a place that is open to the general public enters with permission and cannot be charged with burglary. For example, a teenager who goes into a store during business hours intending to shoplift could not be charged with burglary, only theft or attempted theft.

However, if the teen sneaks into the store manager's office—which is not open to the public—to commit a crime, the child could be charged with burglary. Note that many states do not follow this rule. In many other states, entering a place that is open to the public with the intention of committing a theft or another crime inside will, indeed, expose the person to a charge of burglary.

But Wisconsin's rule on entry with consent only goes so far—if that same teenager remained in the store after close of business intending to steal something, the teenager commits burglary because what had been a lawful entry turned unlawful.

Proving Intent to Commit a Theft or Felony

The next element of burglary requires a prosecutor to prove the defendant entered with the intent to commit a theft or felony. How does a prosecutor prove what was in the person's mind? Sometimes, defendants will confess that they were in a person's home or car in order to steal money or other objects of value. However, even without a confession, a defendant's illicit intention can often be determined by the circumstances. Circumstances might include the method and time of entry, the defendant's conduct when discovered, and the type of building entered.

Say a homeowner discovers a man in her home who claims to be a repairman but has no credentials. When the homeowner tells him no repair has been requested, he strikes the homeowner and runs away. These circumstances tend to show that the man entered the house to commit some crime. Even if the intended felony or theft never occurs, the crime of burglary occurs as soon as the defendant enters without permission and with the illicit intent.

While many associated burglary with theft, it's also burglary if the defendant entered intending to commit felony assault, sexual assault, kidnapping, or another felony.

What Are the Penalties for Burglary in Wisconsin?

In Wisconsin, a person commits the crime of burglary by entering without permission and with the intent to commit any theft or a felony inside:

• any building
• any enclosed railroad car or ship
• a locked and enclosed cargo portion of a truck or trailer
• a motor home or trailer, or
• any room or portion of a building or vehicle within any of the above.

Burglary is a Class F felony, punishable by up to 12½ years in prison and a $25,000 fine.

(Wis. Stat. §§ 939.50, 943.10 (2024).)

What Are the Penalties for Aggravated Burglary and Home Invasion in Wisconsin?

Burglaries are punished more severely under certain circumstances, including when:

• the defendant is armed or becomes armed (such as by stealing a weapon) during the burglary
• the defendant opens or tries to open any safe or vault with explosives
• the defendant commits battery (causes injury) against an occupant, or
• the burglary occurs at a dwelling, motor home or trailer, or boat with sleeping quarters, when another person is present.

Aggravated burglary is a Class E felony, punishable by up to 15 years in prison and a $50,000 fine.

(Wis. Stat. § 943.10 (2024).)

What Are the Penalties for Possessing Burglary Tools in Wisconsin?

Many states criminalize the possession of burglary tools. Under Wisconsin state law, a burglary tool is any tool or device "intended, designed or adapted" for breaking into a building or a room or a safe or vault (or similar receptacle) with the intent to use the tool to break into a place or object and commit theft. For example, a person who has a crowbar and intends to use it to break into a car and steal the car could be convicted of possession of burglary tools.

Possession of burglary tools is a Class I felony, punishable by up to 3½ years in prison and a $10,000 fine.

(Wis. Stat. § 943.12 (2024).)

What Are the Penalties for Criminal Trespass in Wisconsin?

A prosecutor might charge a defendant with criminal trespass if the defendant didn't enter someone's home with the intent to commit theft or a felony. A person commits trespass by entering onto property without the owner's permission. Wisconsin has complicated trespassing laws, and penalties vary depending on the character of the property at issue.

One of the most serious types of trespass—criminal trespass of a dwelling—is committed by entering or remaining in a dwelling without permission and under circumstances "tending to create or provoke a breach of the peace," which simply means any circumstances likely to upset or frighten someone. A dwelling includes any structure used as a home or residence. For example, going into a stranger's home in the middle of the night would probably be considered criminal trespass of a dwelling.

A person who commits criminal trespass to a dwelling faces a Class A misdemeanor, punishable by up to nine months in jail and a $10,000 fine.

(Wis. Stat. §§ 939.51, 943.14 (2024).)

Obtaining Legal Assistance

If you're charged with burglary, trespassing, or any other crime in Wisconsin, talk to a local criminal defense attorney. An attorney can answer your questions and help you present the strongest possible defense so that you can protect your rights and obtain the best outcome in your case.