Burglary

SIGNIFICANCE: Burglary often involves the invasion of a person’s home and, as such, undermines the security a home is thought to provide. In the early English common law, the notion that one’s home is inviolate was established, and its unlawful invasion with the intent to commit further criminal acts is viewed as a particularly serious offense.

Burglary is often characterized as a crime against habitation, and the essence of the crime, as it developed through the common law, is the violation of one’s security associated with the home. A home is expected to be a place in which the occupant can escape from the outside world and feel safe. The burglary of a home strips its occupants of that sense of security. Consistent with that concept, elements for the crime of burglary traditionally included breaking and entering into a dwelling, at night, with the intent to commit a felony crime once inside the home.

Definitions Through History

The concept of burglary in the United States has evolved over time into a broader definition that is no longer limited to the invasion of homes, having been expanded to encompass invasions of all buildings. In fact, in many jurisdictions a building is defined, for purposes of the burglary statute, as including motor vehicles or vessels.

Additionally, modern burglary statutes have extended their reach by eliminating the common-law element that the invasion occur at night, and in many jurisdictions the intended underlying crime no longer need be a felony; the intent to commit malicious mischief or vandalism once inside the building will often suffice as the intent to commit an underlying crime.

Similarly, the breaking and entering elements have been broadened generally to encompass any unlawful entry. Thus, it is not necessary for an offender to gain entrance through some means of force; a charge of burglary only requires that the offender entered the building without authorization or license to do so. However, the conversion to “unlawful entering” does not allow for the burglary of commercial establishments during business hours, even if the offender surreptitiously enters the building. The offender, like the remainder of the public, has a license to enter the building during business hours. For the purposes of burglary statutes, the entire business establishment is characterized as one unit, and even rooms designated for “authorized personnel only” are considered open to the public during business hours. An exception to this general rule is when separate property interests are involved with the separate rooms of a commercial building (such as multiple lessees operating individual businesses within their respective rooms of a building).

While the dwelling element of common-law burglary has been broadened to include buildings in general, the concern with the violation of the security provided by the home has been retained. The fact that a building is a dwelling is frequently considered an aggravating factor, raising the degree and seriousness of the crime. In determining if a building is a dwelling, whether or not individuals routinely sleep in the building is a key factor. Consistent with the treatment of an entire building as a unit, if the predominant characteristic of a building is that of a dwelling, then every component of the building assumes the dwelling classification. Consequently, attached garages are characterized as dwellings.

The actual use of a building as a home is critical to a building being characterized as a dwelling. When a home is under construction it is not considered a dwelling for burglary purposes. However, once the new home has been occupied, it retains its dwelling character even when subsequently vacant.

Similar to the retention of the dwelling element as an aggravating factor, the nighttime element of common-law burglary has been retained in many jurisdictions as another aggravating factor. In such jurisdictions, nighttime is frequently defined not by the physical presence of the sun but rather by there not being sufficient light to recognize a person’s face—a definition emphasizing the feelings of vulnerability associated with the crime of burglary.

Prevalence

According to the Pew Research Center in 2022, burglary was the third most prevalent crime after larceny theft and motor vehicle threat. In the United States, about 2.5 million burglaries occur each year affecting 268.8 of 100,000 people. For the unlawful entry of a building to constitute a burglary, the offender must have committed the entry with the intent to commit a second or underlying crime. The most common underlying crime, indeed the crime most people associate with burglary, is theft. Also closely associated with burglary is the crime of robbery. Whenever a burglary is committed while occupants are inside the building, there exists a fair potential for the burglary to evolve into a robbery when the occupants realize an intruder has entered the building.

Criminologists studying the times and locations of burglary occurrences have found that burglaries tend to occur in clusters. British researchers have shown that residences within 400 meters of a burgled home (particularly those on the same side of the street) have an increased risk of being burgled for up to two months after the initial incident. Research in England has also documented a significant decrease in burglaries. Among other reasons posited for the decline is the demise of the professional burglar, leaving the field primarily to amateurs with no special expertise and often with drug addictions. Concurrently, the value of loot typically taken from homes (such as stereo systems and other electronics) has decreased significantly. While expensive television sets, traditionally popular targets for burglars, have retained their value, they have become physically so large that their removal is problematic. Consequently, it appears that economics, at least in England, partially determines the prevalence of burglary.

Investigation

The crime of burglary is unusual in that it requires that offenders possess intent to commit a second crime upon entering their targeted buildings. Consequently, investigators and prosecutors must be able to provide evidence of that secondary intent in order to convict a person of burglary.

The tendency for burglaries to occur in time and space clusters results in law enforcement benefiting from thorough analysis of burglary scenes to reveal the modus operandi (repeated patterns of behavior exhibited in committing crimes) of the burglar. Such information enables better prediction of which nearby buildings will be victimized next, and if a professional burglar is involved, the information may lead authorities to a particular suspect.

Prosecution

In prosecuting burglaries, two issues appear to surface regularly. The first is whether the prosecution can establish that the defendant possessed the requisite intent to commit an underlying crime. When a burglary has been completed, the intent to commit an underlying crime at the time of entry into the building is inferred from the commission of the underlying crime. However, when the burglary is interrupted prior to the commission of the underlying crime, the prosecution must be able to establish some evidence from which the defendant’s intent to commit an underlying crime can be inferred. With the broadening of burglary statutes to include crimes other than felonies, the task of prosecutors has been facilitated. Courts have allowed an inference to be drawn that defendants intend some kind of mischief when unlawfully entering a building; consequently, the offender intended to commit a malicious mischief or vandalism category of crime.

If a burglary is interrupted, a second issue may be whether the defendant actually entered the building. For the purposes of burglary, offenders have entered a building when any parts of their bodies has passed into the building. Additionally, courts have concluded that the introduction into the building of tools associated with the commission of the underlying crime, not merely used to break into the building, satisfies the entry element for burglary.

Punishment

Burglary is considered a serious offense and is punished as a felony. The characterization as a serious crime is based upon two factors. First is the notion that a burglary is an extreme violation of a person’s security. Second is the fact that burglaries have a significant potential for evolving into robberies, resulting in physical harm to people. With the broadening of the scope of burglary under modern criminal statutes, the violation of one’s security is not as significant when burglaries involve commercial buildings. However, the potential for a burglary to evolve into a robbery is not diminished.

When a burglary has been committed, the offender may be prosecuted and punished for two crimes, the burglary and the underlying crime. This does not represent double jeopardy because the focus of burglary is distinct from the focus of the underlying crimes.

Bibliography

Brown, Stephen E., Finn-Aage Esbensen, and Gilbert Geis. Criminology: Explaining Crime and Its Context. 9th ed. New York: Routledge, 2015. Print.

"Crime in the United States, by Volume and Rate per 100,000 Inhabitants,1997–2016." 2016 Crime in the United States, Criminal Justice Information Services Division, Federal Bureau of Investigation, US Dept. of Justice, ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-1. Accessed 24 June 2024.

“The Decline of the English Burglary.” Economist. Economist Newspaper, 5 May 2004. Web. 24 May 2016.

Rengert, George, Brian Lockwood, and Elizabeth R. Groff. "Burglary in a Segregated City: Race of Offenders and Community of Offending." The Criminal Act. Ed. Martin A. Andresen and Graham Farrell. New York: Springer, 2015. 214–239. Print.

Gramlich, John. "What the Data Says About Crime in the United States." Pew Research Center, 24 Apr. 2024, www.pewresearch.org/short-reads/2024/04/24/what-the-data-says-about-crime-in-the-us/. Accessed 24 June 2024.

Pelchen, Lexie. "Surprising Home Burglary Facts and Stats." Forbes Home, 20 Apr. 2024, www.forbes.com/home-improvement/home-security/home-invasion-statistics/. Accessed 24 June 2024.

Rosenfield, Richard. “The Case of the Unsolved Crime Decline.” Scientific American. Scientific American, Feb. 2004. Web. 24 May 2016.

“Time Bandits.” Economist. Economist Newspaper, 8 May 2004. Web. 24 May 2016.

Tseloni, Andromachi, K. Wittebrood, G. Farrell, and K. Pease. “Burglary Victimization in England and Wales, the United States, and the Netherlands: A Cross-National Comparative Test of Routine Activities and Lifestyle Theories.” British Journal of Criminology 44 (2004): 66–91. Print.