The crime of burglary occurs when a defendant unlawfully enters a structure with the intent to commit a crime therein. Traditionally, burglary applied only if the crime occurred at night and the structure was the dwelling of another. Additionally, the defendant was required to engage in “breaking” and entering, as opposed to other, less destructive, actions. Over time, state statutes have expanded burglary to cover a much broader range of circumstances.

Unlawful Entry

In most states, burglary no longer requires that a burglar break into a home by breaking a window or some other use of force. Rather, unlawful entry can occur through a variety of means, including physical force, entry through an open window or doorway, or “constructive breaking.” Constructive breaking refers to circumstances where a burglar enters through means that don’t require force, such as using threats of violence against a homeowner or pretending to be a stranded driver seeking to use a phone. All of these actions are encompassed within unlawful entry.


One of the factors that has remained the same in burglary statutes over time is the requirement that the burglar intended to commit a crime while inside the structure. While it may seem that the intended crime must a theft, this is not the case. Instead, a burglary may occur when there is an intent to commit any sort of crime. For instance, if a defendant unlawfully enters a retail business with the intent to vandalize the property, this could be considered a burglary, as vandalism is a crime itself.  Conversely, if a person is forced to enter a building because he or she is fleeing an emergency situation or under duress, but does not have an intent to commit a crime while inside, this would not be considered a burglary.

Buildings and Structures

While burglary traditionally required that the building targeted by the burglar was a dwelling or home, this is no longer the case in most states. The term “structure” now includes businesses, offices, industrial buildings, sheds, or other private facilities. In most states, the only two requirements are (1) that the structure is used to house people or property and (2) that the structure was closed to the public at the time it was entered. Thus, when a public building is open to visitors, or a retail store is open to customers, a burglary cannot occur. Instead, any theft that occurs inside would be categorized as a larceny or shoplifting crime.

Additionally, abandoned buildings are generally not considered to be structures under burglary statutes. While other criminal charges may occur if damage is done to an abandoned building, a defendant usually will not face burglary charges.

Punishment and Defenses

In many states, burglary may be a first- or second-degree crime depending on the intent of the defendant. If the defendant unlawfully entered the building already intending to commit a crime once inside, this may result in a charge of first-degree burglary. If the defendant enters the building unlawfully and, once inside, decides to commit a crime, this may result in a second-degree burglary charge.

Defendants may also be charged with the crime of aggravated burglary under certain circumstances. For instance, in many states aggravated burglary may occur where a burglar commits the crime using a deadly weapon, or if the structure that is entered is a personal home. Both burglary and aggravated burglary are typically charged as felonies and may make a defendant liable under the felony murder rule for any deaths that occur as a result of the burglary.

Because burglary requires the unlawful entry into a structure, two possible defenses to burglary are that the defendant had consent to enter the structure or was entrapped into committing the burglary.