Breaking And Entering Law: Understanding Criminal Trespass

Breaking and entering is a term that often conjures images of burglars and masked intruders, but its legal definition is more nuanced and varies from state to state in the US. It is generally defined as the act of forcibly entering someone else's property without permission, and is usually considered a more serious crime than trespass. The term forcibly is critical but misleading here, as it can imply anything from smashing a window to simply pushing open a door. In some states, the use of fraud or threats to gain entry is also considered breaking and entering.

Breaking and entering is often associated with burglary, which is defined as the illegal entry into a building with the intent to commit a felony or theft. While the two terms are sometimes used interchangeably, they are distinct legal concepts. The primary difference lies in the intent behind the action. While both involve illegal entry to a property, burglary requires a criminal intent beyond the unlawful entry, whereas breaking and entering does not.

Breaking and entering vs burglary

"Breaking and entering" and "burglary" are terms often used interchangeably by the general public, but they are distinct legal concepts with different implications. While both involve illegal entry into a property, the primary difference between the two lies in the intent behind the action.

Burglary is defined as the illegal entry into a building with the intention to commit a felony or theft. It is important to note that burglary does not necessarily require the physical "breaking" of anything. The act becomes a burglary when there is unlawful entry with felonious intent, regardless of whether the person entered through an unlocked door or broke a window to gain access. Burglary is typically treated more severely and can lead to felony charges, resulting in longer prison terms and heftier fines.

On the other hand, "breaking and entering" is broadly defined as the act of forcibly entering someone else's property without permission. The term "forcibly" is critical here but can be misleading, as force can imply anything from smashing a window to simply pushing open a door. Breaking and entering is usually classified as a misdemeanour, resulting in less severe penalties unless associated with other criminal activities.

The crucial factor distinguishing breaking and entering from burglary is the intent to commit a crime inside the property. Breaking and entering becomes burglary if it can be proven that the perpetrator intended to commit a felony or theft. Some states further differentiate between the two by considering the type of building involved. For example, in North Carolina, burglary applies only to dwellings, while breaking and entering applies to other structures such as pharmacies, religious buildings, and vehicles.

In some states, there is no distinction between burglary and breaking and entering. For example, in Georgia, all such crimes are considered "burglary", and the two terms are interchangeable. However, even in Georgia, there are two degrees of burglary charges, with first-degree burglary involving a dwelling and second-degree burglary involving other buildings or vehicles.

Breaking and entering vs trespassing

Breaking and entering and trespassing are similar but distinct crimes. While both involve entering someone else's property without permission, the differences between them can turn a relatively minor trespassing offence into a more serious breaking and entering charge.

Breaking and Entering

Breaking and entering involves the use of force, however slight, to gain entry into a building or residence. This force could be breaking a window, forcing open a door, or any other act that involves physical entry through unauthorised means. Breaking and entering can also be committed through fraud, threats, or collusion. For example, coercing or tricking someone into allowing you to enter does not make the entry lawful.

In most states, there also has to be an intent to commit a crime, usually robbery, theft, or arson, for it to be breaking and entering.

Trespassing

Trespassing only requires an unauthorized entry onto someone else’s property, with or without forced entry. Trespassing can happen anywhere, while breaking and entering can only occur within a building. Trespassing does not require the use of force or fraud, and the prosecutor must prove that the defendant intentionally invaded another person's property with the aim to violate that person's property rights.

Penalties

Because breaking and entering is a more severe type of criminal offence than trespassing, the penalties for a conviction are also higher. Breaking and entering is often a felony, while trespassing is usually a misdemeanour.

What constitutes 'breaking'?

Breaking and entering is defined as the act of forcibly entering someone else's property without permission. The term "forcibly" is critical here, but it can be misleading. The force used can be slight and vary from smashing a window to simply pushing open a door. In some cases, even opening a closed door or window, or further opening a door that is slightly ajar, can be considered a "breaking". However, it is not considered breaking and entering if one enters through an unobstructed entrance, such as an open door.

The use of force is not always necessary, as breaking and entering can also be committed through fraud, threats, or collusion. Coercing or tricking someone into allowing you to enter does not make the entry lawful. For example, a person ringing a doorbell and asking to be let in to use the phone because their car broke down, and then proceeding to attack the occupant and steal money, would be considered breaking and entering.

To constitute entering, it is sufficient if any part of the accused's body is introduced within a building. It is also important to note that breaking and entering does not apply if the premises are open to the public or the person is licensed or privileged to enter.

What constitutes 'entering'?

The definition of "entering" is broad and does not require the entire body of the perpetrator to be inside the building. Even a minimal invasion, such as reaching a hand or an instrument through an open window, can constitute entry if it is connected to the intent to commit a crime.

The courts have interpreted "entry" to include instances where an individual gains access to a building through deceit or fraud, not just physical breaking. For example, if someone poses as a utility worker to gain access to a home with the intent to steal, this could be classified as burglary, even though there was no 'breaking' in the traditional sense.

In the state of Indiana, the following cases had sufficient force to be considered breaking and entering:

• Gaining access to a store through an unlocked door
• Further opening a door that is already slightly ajar

However, it is generally not considered breaking and entering when you enter without using force because there was already an opening. For example, reaching through an open car window and stealing a tape cassette player.

In most states, there also has to be an intent to commit a crime for it to be breaking and entering.

Legal consequences of breaking and entering

Breaking and entering is defined as the act of forcibly entering someone else's property without permission. The use of force can be slight and does not need to be violent or vigorous, for example, pushing open a door. Breaking and entering also includes entering a building through fraud, threats, or collusion.

The crucial factor distinguishing breaking and entering from burglary is the intent to commit a crime inside the property. Breaking and entering can become burglary if it can be proven that the perpetrator intended to commit a felony or theft. The primary difference between burglary and breaking and entering lies in the intent behind the action. While both involve illegal entry to a property, burglary requires a criminal intent beyond the unlawful entry, whereas breaking and entering does not.

Breaking and entering is usually classified as a misdemeanor, resulting in less severe penalties. The average jail time for a misdemeanor is a maximum of one year, served in a county jail facility. Other consequences of a misdemeanor breaking and entering conviction could include:

• Court-ordered community service hours
• Fines, generally less than $1,000
• Criminal restitution, or repayment in instances of property damage
• Probation, either independently or paired with jail time

However, breaking and entering may be elevated to a felony crime when associated with aggravating factors or burglary. Aggravating factors include:

• Severe property damage
• Theft of a large amount of money and/or valuable goods
• Causing serious bodily harm or death to another person

If breaking and entering is associated with burglary, the charge of breaking and entering will generally be absorbed into the charge of burglary, resulting in a felony charge. A felony conviction can lead to longer prison terms and heftier fines.

Frequently asked questions