A burglary statute makes it a crime to enter a building or structure without permission while intending to commit a crime inside, and in most states it also covers staying inside after your permission to be there has ended. The offense is almost always a felony, graded by how dangerous the entry was, with penalties ranging from about a year in prison for empty commercial buildings up to decades for armed entries into occupied homes.
The Two Elements Prosecutors Must Prove
Every burglary charge rests on two elements, and both must be proven beyond a reasonable doubt.
The first is unlawful entry or unlawful remaining. Under the Model Penal Code framework that most states follow, a person commits burglary by entering a building or occupied structure, or by staying inside after their right to be there has ended. Entry does not require force. Pushing open an unlocked window, reaching a hand through a mail slot, or walking through an open entrance after business hours can all satisfy this element. Lingering in a store after closing, or staying in a home after the host asks you to leave, is treated the same way as a forced entry.
The second element is intent to commit a crime inside, and this is what separates burglary from simple trespassing. The prosecution has to show that the person intended to commit a felony or theft at the moment they crossed the threshold. The planned crime does not have to actually happen. What matters is the mental state at the point of entry. Someone who wanders into a building with no criminal purpose and only later decides to steal something has technically not committed burglary under this definition, though theft charges still apply.
Intent at the moment of entry is usually proven through circumstantial evidence: tools associated with break-ins, entry through a window rather than a door, timing that suggests the property would be empty, or fleeing with stolen items. It is also the element most vulnerable to challenge, which is why many burglary cases get negotiated down to lesser offenses.
What Counts as a Structure
The Model Penal Code defines “occupied structure” broadly as any structure, vehicle, or place adapted for overnight accommodation or for conducting business, whether or not anyone is actually inside when the entry happens.1The American Law Institute. U.S. Supreme Court Cites Model Penal Code Most state statutes track this approach. Houses, apartments, offices, and warehouses obviously qualify. So do RVs and mobile homes used as dwellings, boats used for habitation, railroad cars, and tents set up as temporary residences.
Statutes also separate inhabited from uninhabited structures. An inhabited structure is one currently used as someone’s home, even if the resident is at work or on vacation at the moment of entry. Uninhabited structures include abandoned buildings, detached storage sheds, and similar spaces nobody lives in. Entering an inhabited dwelling almost always triggers a higher charge.
Curtilage: The Yard as Part of the Home
Many jurisdictions treat the land immediately surrounding a home as legally part of that home for burglary purposes. Under this concept, called curtilage, entering a fenced backyard, enclosed porch, or attached garage without permission can be charged the same as entering the house. Courts use a four-factor test from the Supreme Court’s decision in United States v. Dunn to decide where curtilage ends: distance from the home, whether the area sits inside an enclosure around the home, how it is used, and what steps the resident took to shield it from public view.2Office of Justice Programs. Curtilage: The Fourth Amendment in the Garden A privacy-fenced backyard with patio furniture almost certainly counts. An open field fifty yards from the house likely does not.
Degrees of Burglary and How Penalties Scale
States grade burglary into degrees based on how dangerous the entry was. The specifics vary, but the escalation pattern is consistent.
First-degree burglary is the most serious charge. It typically applies when someone enters an inhabited dwelling while armed, when someone is home during the entry, or when the intruder causes or threatens physical harm. The victim does not need to confront the intruder for the charge to be elevated. Being asleep upstairs while someone enters through the basement is enough in most states to support first-degree treatment.
Second-degree burglary often covers entries into inhabited dwellings without those aggravating factors, as well as entries into commercial buildings with intent to commit a crime. Third-degree is generally reserved for the least threatening scenarios, such as entering an unoccupied, non-residential structure with no weapon and no people at risk. Some states call this “burglary of a building” or fold it into a lower felony class.
Nighttime entries are treated more seriously than daytime entries in many jurisdictions, a holdover from the common law that still carries sentencing weight.
Burglary is almost always a felony, and penalties scale sharply with the degree. Lower-degree offenses involving non-residential structures typically carry prison terms of roughly one to five years. Higher-degree felonies involving inhabited homes, weapons, or violence can carry sentences of ten to twenty years or more. The federal sentencing classification system shows the framework: offenses punishable by five to ten years are Class D felonies, while those carrying ten to twenty-five years are Class C felonies.3Office of the Law Revision Counsel. 18 U.S. Code 3559 – Sentencing Classification of Offenses Fines range from a few thousand dollars for simple burglary up to tens of thousands for aggravated offenses.
Prior convictions change the calculus. Under the federal three-strikes provision, a person convicted of a “serious violent felony” who has two or more prior serious violent felony or serious drug offense convictions faces mandatory life imprisonment.3Office of the Law Revision Counsel. 18 U.S. Code 3559 – Sentencing Classification of Offenses Burglary does not automatically qualify as a serious violent felony under the federal definition, but it can when the offense involved the use or threat of physical force and carried a maximum sentence of ten years or more. Many states have their own habitual-offender statutes that apply more broadly to repeat burglary convictions.
Courts also routinely order restitution to victims on top of prison and fines. Federal restitution covers medical expenses, therapy costs, lost income, temporary housing, and other losses caused by the crime.4Office of the Law Revision Counsel. 18 USC 2248 – Mandatory Restitution State courts take similar approaches, ordering repayment for broken doors and windows, stolen property, and security upgrades after the break-in.
Burglary Compared to Trespass, Robbery, and Larceny
These four offenses overlap in ways that confuse defendants, and the distinctions carry real sentencing consequences.
Trespass is the closest relative. Both involve being somewhere you do not belong, but trespass lacks the intent-to-commit-a-crime-inside element. Someone who enters an abandoned building out of curiosity commits trespass. The same person entering with a plan to steal copper wiring commits burglary. That single mental distinction can be the difference between a misdemeanor and a serious felony.
Robbery requires taking property directly from a person through force or threats. The FBI classifies both robbery and burglary as property crimes, but robbery involves a face-to-face confrontation.5Federal Bureau of Investigation. National Incident-Based Reporting System (NIBRS) Crimes Against Persons, Property, and Society Burglary does not require any victim to be present.
Larceny is simply taking someone’s property without permission. No forced entry, no confrontation. Shoplifting from an open store is larceny, not burglary, because the store was open to the public and the entry was authorized. Staying after closing to steal merchandise can cross into burglary.
Common Defenses to Burglary Charges
Because the prosecution has to prove both unlawful entry and criminal intent, defenses tend to attack one or both.
- Permission to enter. If the owner or occupant consented, the entry was not unauthorized. Even a reasonable but mistaken belief that permission existed can defeat the unlawful-entry element.
- Lack of intent. If the defendant had no plan to commit a crime at the moment of entry, the burglary charge fails even if a crime happened later. Voluntary intoxication or mental illness can support this defense by showing the person could not form the specific intent burglary requires.
- Mistaken identity. Burglaries often happen in low-visibility conditions, and eyewitness identifications in those conditions are notoriously unreliable. Alibi evidence or problems with the identification process can undercut the prosecution’s case.
- Entrapment. If law enforcement induced the defendant to commit a burglary they otherwise would not have committed, the entrapment defense applies.
A defendant found inside a building with nothing taken presents a much weaker case for the prosecution than one caught carrying stolen property out the door. That gap is where plea negotiations happen.
Possession of Burglary Tools
Separate from burglary itself, most states criminalize possessing tools designed for breaking into structures when the person intends to use them that way. Lock picks, slim jims, crowbars, and master keys all fall under these statutes when found alongside evidence of criminal purpose. Owning a crowbar is legal. Carrying one at 3 a.m. while peering into car windows reads differently. These laws let police intervene before an actual burglary occurs. The charge is typically a misdemeanor, though it can be stacked onto a burglary count when the tools were actually used.
When Burglary Becomes a Federal Case
Burglary is overwhelmingly prosecuted at the state level. Federal charges apply in specific circumstances. The most common federal burglary-type offense is entering a bank, credit union, or savings and loan with intent to commit a felony or larceny, which carries a fine and up to twenty years in federal prison.6Office of the Law Revision Counsel. 18 USC 2113 – Bank Robbery and Incidental Crimes Federal jurisdiction also covers break-ins on military bases, federal courthouses, post offices, and other federal property. A separate federal robbery statute applies when the burglary involves taking personal property belonging to the United States, with a fifteen-year maximum sentence.
Statute of Limitations
The window to bring charges varies dramatically by state. Some states set a short window of four to six years. Others allow ten or twenty. A few states, including Mississippi and Rhode Island, impose no time limit at all for burglary, meaning charges can be filed decades after the offense. The clock typically starts when the crime is committed, not when it is discovered, though some states pause the period if the suspect flees the jurisdiction. The specific deadline depends entirely on the state where the alleged burglary occurred.
Collateral Consequences of a Conviction
The prison sentence ends. The felony record does not.
Federal law prohibits anyone convicted of a crime punishable by more than one year of imprisonment from possessing firearms or ammunition.7Office of the Law Revision Counsel. 18 U.S. Code 922 – Unlawful Acts Nearly all burglary convictions clear that threshold, which means an effective lifetime firearms ban. Employers in most states can legally consider felony convictions in hiring, and burglary convictions are particularly damaging for jobs involving access to homes, businesses, or valuable property. Landlords routinely screen for felony records, which makes housing hard to secure after release. Voting rights may be suspended during incarceration, parole, or probation depending on the state, and some states require a separate application to restore them.
These downstream effects deserve attention before any plea decision. Accepting a felony burglary plea to avoid trial risk resolves the immediate case, but the collateral consequences often outlast the sentence itself.