Burglary Basics

Burglary charges often carry stiff felony penalties. Learn what a prosecutor must prove to secure a burglary conviction.

By , J.D. · UCLA School of Law

Criminal laws in each state provide specific definitions of burglary. In the past, many jurisdictions defined burglary as using force to break a lock or window to get into someone's home during the nighttime hours. Today, though, burglary laws are generally much broader. Read on to learn more about modern definitions of the offense and to see some real-world examples.

What Is the Legal Definition of Burglary?

Although the exact definition of burglary may be a little different from state to state, the crime typically involves a culprit:

  • entering a building or structure
  • without permission
  • with the intent to commit a crime.

Entering a Building or Structure

In the past, burglary laws required the government to prove that a defendant forced open a door, window, or some other part of a building to get inside. In some states, the law described it as "breaking and entering."

Entering. Today, though, going into a building through an open window or an unlocked door is usually enough for a burglary conviction (even in those states that have kept the outdated terminology of "breaking and entering"). Only the smallest amount of force is necessary to constitute an entry. And even a partial entry can constitute burglary. For example, assume that the police arrest a suspect who is reaching an arm through an open window to steal something. If the other requirements are met, the suspect can be convicted of burglary.

Buildings and structures. Similarly, older burglary laws typically applied only to homes—and then only if the crime occurred at night. Burglary laws now extend to almost all kinds of structures and can even include portable ones like cars, boats, tents, and mobile homes. Nowadays, for instance, illegally entering a barn at noon in order to steal something from inside can result in a burglary conviction.

Intent to Commit a Crime

The word "burglary" probably calls to mind a masked crook with a sack breaking into a residence in order to steal money or property. In reality, although burglaries often involve theft, the intended crime doesn't need to be theft, nor does the person need to complete the intended crime.

Any crime will do. Generally, illegally entering a building with the goal of committing a felony or some type of theft qualifies as a burglary—and, in many states, illegally entering a building with the intent to commit any crime will do. For example, a suspect may enter a building with the intent to burn it down or assault someone. Both are sufficient for a burglary conviction. Some states provide harsher penalties if the person intended to commit a felony rather than a misdemeanor.

Intent at the time of entry. As long as a person enters a building intending to commit a crime, it's still a burglary even if the person is arrested or scared off before the crime can take place. On the other hand, it may be some other offense—like criminal trespass—if a culprit first decides to commit a crime only after entering a building.

Proving intent. In cases where the defendant doesn't complete the intended crime, the prosecution must prove what was going on in the defendant's head when entering the building. Unless a defendant confesses to their intentions, the prosecution will need to prove intent through circumstantial evidence. Say the police catch a person attempting to climb into a basement window. The person has a large backpack containing a lockpick, wire cutters, a knife, and duct tape. A jury could easily conclude that the person was entering the house intending to commit a crime, likely to steal or even harm someone.

Burglary: Case Example 1

Facts: Phil is charged with burglary. The prosecution claims that Phil, wanting a birthday present for his girlfriend, went into the stockroom of a drugstore and took a bottle of perfume. Phil admits to taking the bottle but asks the judge to convict him only of petty theft, a misdemeanor.

Verdict: Phil can be convicted of burglary. In many states, entering a building open to the public with the intent to commit a crime is an unlawful entry. A store owner's permission to enter extends only to entry for legal purposes. In this case, Phil also entered a restricted part of the store—the stockroom. It's an illegal entry to access a private or prohibited space within a public building, such as an employee breakroom or private office.

Burglary: Case Example 2

Facts: Klaus enters the home of his ex-wife Wilma by climbing through a window. Klaus has threatened to harm his wife in the past, and he has a tire iron in his back pocket. Wilma hears Klaus coming, runs to a neighbor's house, and calls the police. The police arrest Klaus as he tries to run away through the back door.

Verdict: Klaus has committed burglary. Klaus entered Wilma's house without consent. The prior threats and the tire iron are circumstantial evidence showing that at the moment Klaus entered Wilma's home, he intended to attack her with a deadly weapon.

Is Burglary a Felony?

A person convicted of burglary will likely face felony charges. Most states divide the crime into degrees of severity, depending on certain factors. For instance, the danger of physical injury is greatest when a burglar enters an inhabited building so, in many states, this constitutes first-degree burglary. Under some statutes, entry at night rather than in the daytime also constitutes a first-degree burglary, regardless of whether the building is inhabited.

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