What is Burglary Law?
Burglary law refers to the prosecution and defense of crimes in which the defendant is accused of entering into or remaining inside a structure with the intent of committing a theft or other serious illegal act. The offense is usually treated as a felony, meaning that convicted individuals face a year or more in prison. Many states impose enhanced penalties if the structure entered into is a home, or if it was occupied at the time the crime was committed. Possession of a firearm during the course of a burglary will expose a defendant to greater criminal liability as well.
One of the unique aspects of burglary is the way the elements of the crime have evolved over time. Burglary now covers a wide range of conduct, and charges can come as a surprise to defendants who are unfamiliar with the modern aspects of the offense. Traditionally, to be convicted of burglary, an individual must have broken into the dwelling of another, at nighttime, with the intent to commit a larceny or felony therein. While the element of intent remains, nearly every other requirement for a conviction has been altered or done away with.
For example, under modern burglary statutes, there is no longer a requirement that the crime occur at night. The breaking element has also been modified to include situations where the suspect enters into a structure through an open window or doorway. And in perhaps the most significant expansion of burglary law, legislators have removed the requirement that the structure be a dwelling. The term structure is now defined to include retail businesses, offices, and industrial buildings, as well as mobile enclosures such as automobiles, boats, and freight containers.
Invoking the Right to Remain Silent
Unlike robbery, the crime of burglary rarely involves a confrontation between the perpetrator and the victim. This means that law enforcement investigators must resort to piecing together circumstantial evidence in order to build a case. In the absence of direct eyewitness testimony, the police would like nothing more than for a burglary suspect to make incriminating statements. Thus, in response to questioning by police following an arrest for burglary (or even before charges are filed), defendants should immediately invoke their right to remain silent.
People arrested for burglary can make the mistake of thinking they can talk their way out of the situation. The truth of the matter is that answering questions will only make the situation worse, as it is easy to make mistakes under the pressure of an interrogation. Even defendants who are completely innocent of burglary can inadvertently confess to lesser crimes, such as criminal trespass. Again, the wisest course of action is to politely refuse to answer questions from law enforcement, and to insist on speaking with an attorney.
Establishing a Defense
Affirmative defenses exist for burglary just as they do for other crimes. For example, defendants who have committed burglary may claim they were coerced into the act. However, due to the statutory requirements of this particular crime, the best defense to burglary is often an attack on one or more of the elements the government must prove to obtain a conviction. The defendant may show that he or she did not commit the underlying theft or felony, thereby negating that element. Or, in jurisdictions requiring an unauthorized entry, the defendant may have had actual or implied consent to enter the structure from the owner.
Of all the elements of burglary, the one most susceptible to attack is often the requirement of intent. The prosecutor must prove that the defendant entered the structure for the purpose of committing theft or another felony. This rules out any case in which the defendant did not form the requisite intent until after entering the structure. For example, a hiker who breaks into a mountain cabin to find shelter from a storm, and then discovers and steals a valuable item from the cabin, has not committed burglary. The entering and the intent to steal did not occur at the same time.
Possession of Burglar’s Tools
The issue of intent is also important when dealing with the related crime of possession of burglar’s tools. Often treated as a misdemeanor, this crime does not require that a burglary be carried out. Rather, a suspect need only be found in possession of tools used to commit burglary (such as a crowbar), with the intention of using the tools for that purpose. Because such tools can be used for legitimate purposes, the case will come down to the element of intent. As with the crime of burglary itself, prosecutors who have not obtained a confession will usually ask the jury to infer the defendant’s intent from the surrounding circumstances.
Contact a Burglary Defense Attorney
Burglary is not the type of criminal case you should attempt to handle on your own. You need an attorney to explain the nuances of the burglary statute in your jurisdiction, and to help you formulate a strategy for defending the case. Get in touch with a criminal defense attorney to learn more.
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Articles About Burglary Law
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- Burglary Charges under California Penal Code 459California Penal Code 459 discusses burglaries and proscribes which type of activity may result in a conviction for first or second degree burglary. Subsequent statutes discuss the legal ramifications of a conviction under this section of the criminal code.
- Expungement of Petty Theft Conviction a Mistake, Although Defendant Consequently Faces DeportationIn 2011, he again attacked his 1997 petty theft conviction, by way of an “invitation” that the court dismiss the judgment of conviction under Penal Code § 1385. It merits mention parenthetically that only prosecutor can move to dismiss a case under section 1385. Thus, a defendant must instead “invite” the judge to exercise his discretion under 1385 to dismiss the case.
- First Degree Residential Burglary is a Crime of Violence Under Immigration LawsIn 2007, Ramiro Ramos-Medina was convicted after a jury trial of First Degree Residential Burglary, a violation of Penal Code § 459. The judge sentenced him to two years in state prison. Mr. Medina was not a U.S. citizen. Immigration officers told him that his conviction was a “crime of violence” under 8 U.S.C. § 16(b) and thus, an “aggravated felony” under the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) and § 1227(a)(2)(A)(iii).
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Articles written by attorneys and experts worldwide discussing legal aspects related to Criminal Law including: arson, assault, battery, bribery, burglary, child abuse, child pornography, computer crime, controlled substances, credit card fraud, criminal defense, criminal law, drugs and narcotics, DUI, DWI, embezzlement, fraud, expungements, felonies, homicide, identity theft, manslaughter, money laundering, murder, perjury, prostitution, rape, RICO, robbery, sex crimes, shoplifting, theft, weapons, white collar crime and wire fraud.
Burglary Law – US
- Burglary - Overview
Explanations of the elements of the offense such as: trespass, breaking, entry, etc...
- Burglary - Wikipedia
Burglary (also called breaking and entering and sometimes housebreaking) is a crime, the essence of which is entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary.
- Burglary and Criminal Trespass Law
A person is guilty of criminal trespass if he knowingly enters or remains unlawfully in a dwelling or premises, or if he knowingly enters or remains unlawfully in a building or upon real property which is fenced or enclosed in a manner designed to exclude intruders.
Burglary Law - Europe
- Theft Act 1968 (c. 60) - Burglary - UK
A person is guilty of burglary if— 1 (a) he enters any building or part of a building as a trespasser and with intent to commit any such offence as is mentioned in subsection (2) below; or (b)having entered any building or part of a building as a trespasser he steals or attempts to steal anything in the building or that part of it or inflicts or attempts to inflict on any person therein any grievous bodily harm. (2) The offences referred to in subsection (1)(a) above are offences of stealing anything in the building or part of a building in question, of inflicting on any person therein any grievous bodily harm. . . therein, and of doing unlawful damage to the building or anything therein.
- UK Powers of Criminal Courts (Sentencing) Act 2000 - Burglary
Burglary Law - International
- Australia - Criminal Code Act 1995, 132.4 - Burglary
(1) A person is guilty of an offence if: (a) the person enters, or remains in, a building, as a trespasser, with intent to commit theft of a particular item of property in the building; and (b) the property belongs to a Commonwealth entity.
- Criminal Code of Canada - Section 348 - Breaking and Entering
Law regulating breaking and entering with intent, committing offense or breaking out.
Organizations Related to Burglary Law
- Office for Victims of Crime (OVC)
The Office for Victims of Crime (OVC) was established by the 1984 Victims of Crime Act (VOCA) to oversee diverse programs that benefit victims of crime. OVC provides substantial funding to state victim assistance and compensation programs-the lifeline services that help victims to heal.
- US Department of Justice - FBI - Uniform Crime Reporting (UCR) Program - Burglary
The Uniform Crime Reporting (UCR) Program defines burglary as the unlawful entry of a structure to commit a felony or theft. To classify an offense as a burglary, the use of force to gain entry need not have occurred. The Program has three subclassifications for burglary: forcible entry, unlawful entry where no force is used, and attempted forcible entry. The UCR definition of "structure" includes, for example, apartment, barn, house trailer or houseboat when used as a permanent dwelling, office, railroad car (but not automobile), stable, and vessel (i.e., ship).