The Breaking Requirement

The Breaking Requirement

The first question on any burglary fact pattern is how the defendant got in, and the common-law answer is that there must have been a breaking. A breaking requires the creation of a breach or opening in something the occupant had secured, so a bare trespass does not satisfy it.¹ The reason lies in what the element measures. An occupant who leaves a door or window open has, in effect, invited others to enter, and the common law therefore held that walking through a pre-existing opening was not a breaking.² The law asks occupants only to avoid leaving openings that invite entry, and once a structure has been closed, it protects the structure.³ The barrier a defendant must overcome can therefore be a modest one, because the point of the element is to separate the intruder from the invitee, not to reward the occupant with the strongest lock.

Everything the element requires elaborates a single premise: the defendant overcame a barrier against the occupant's will in order to get into the dwelling. A defendant who walks into a place that is open to him, or who is already inside, has not done the thing burglary was built to punish, because the occupant's closed-off space was never invaded. Each phrase of the premise produces its own checkpoint, and a fact pattern is best run through them in the order below.⁴

The sections that follow teach these checkpoints in turn, each with its own rule and reason. They also show how the answers interact, since a defendant who fails any one of them has not committed a breaking, and without a breaking there is no common-law burglary, whatever the defendant intended to do inside. Later in this chapter you will see that some modern statutes dispense with the breaking requirement altogether, which is one more reason to confirm the governing definition before applying these checkpoints.

Actual Breaking

The first checkpoint asks whether the defendant overcame a barrier by force, and the amount of force the law demands is small. Actual breaking requires some force to gain entry, but even minimal force is enough, so a defendant who opens a closed but unlocked door has committed a breaking.⁶ Nothing needs to be damaged. The element is satisfied by putting aside some barrier to entry, no matter how flimsy.⁷ A defendant who pops a latch or turns a knob has therefore broken in just as surely as one who splinters the frame.

The low threshold follows from what the element measures. The common law asked occupants only to avoid leaving openings that invite others in, and it never required them to turn the home into a fortress.⁸ A door that has been closed shows that the occupant has shut the outside world out, and the law protects the structure from that point on, whether or not the door is also locked. Force in this setting is shorthand for the act of moving a closed barrier, and turning a knob or lifting a latch does that as well as a crowbar would. A Texas statute defining breaking in an attempted-burglary prosecution takes the same approach: the slightest force is sufficient, such as lifting the latch of a shut door or raising a window.⁹

Two boys who open the closed but unlocked door of a neighbor's garage and walk in show how this plays out. The door was unlocked, but opening it put aside a barrier, and that is a sufficient breaking.¹⁰ The same reasoning covers a closed window, and the exam shorthand is that opening a closed door or window, even an unlocked one, satisfies the breaking element when it is done without the owner's authorization.¹¹ Students lose this checkpoint when they read unlocked as though it meant open. The authorization qualifier points ahead to the trespass checkpoint in the next section. For now, notice that a closed door opened without permission is the paradigm case, while no common-law breaking occurs when the place is open to the public, since the owner has invited everyone in.¹²

The harder case is the door that is already partly open. In a standard illustration, a defendant intending to steal a painting from a house finds the front door open about six inches, pushes it fully open, and walks in. The best answer is that this is a breaking, because force, although only minor force, was used to gain entry.¹³ That answer reflects the better view, under which force used to enlarge an opening in order to enter is itself a breaking.¹⁴ The traditional rule went the other way. Under it, further opening a door or window that was already partly open was not a breaking, on the theory that an occupant who leaves a gap has created an opening and so has invited entry.¹⁵ The older rule drew its line exactly there: entry through a closed door or window, locked or unlocked, was a breaking, but widening a window that stood partly open was not.¹⁶

The better view repairs a gap in that older reasoning. A six-inch opening does not let anyone in, and the defendant still has to move the door to get through, so the occupant has not in fact left an entrance available. A rule that excused that push would make liability depend on whether the occupant happened to leave a crack, even though the defendant still had to overcome something to get in. On an exam, apply the better view unless the problem says the jurisdiction follows the traditional rule. The older rule still deserves a place in your analysis, because it explains why some older decisions reach the opposite result on a door-ajar fact pattern.

That scene differs from the six-inch door in one variable: whether any barrier had to be moved. In the six-inch case the defendant had to push something, so the better view finds a breaking, and only the traditional rule, which excuses the push, would treat it like the wide-open doorway. In the wide-open case there is nothing to push, so every version of the rule agrees that entry through a pre-existing opening is not a breaking.¹⁷

Trespass and Consent

The second checkpoint asks whether the defendant's way in was a trespass, because a breaking must amount to one.¹⁹ Force against a closed barrier is necessary, but a breaking also requires that the force be used against the occupant's will. Unwelcome presence, standing alone, does not complete the element either. In Commonwealth v. Magadini a man served with no-trespass orders was charged with trespassing in buildings that had barred him, and a trespass charge asks only whether the entry was unauthorized.²⁰ A common-law breaking asks for more, namely the creation of a breach in something the occupant had secured, so a mere trespass at law is not enough.²¹ Where the resident does consent to the defendant's entry, the analysis ends differently: the force the defendant uses to get in is not a breaking.²²

The reason consent has that effect lies in what the breaking element measures. Common-law burglary was conceived as an invasion of the right of habitation, so a breaking is a violation of the security meant to keep people out, an intrusion by someone the occupant had shut out.²³ A person the occupant has admitted is not an intruder, and the law, which sought only to keep out intruders, would not punish one who had been invited in any way to enter; anyone given authority to come into the house could not commit a breaking by doing so.²⁴ Because the element looks to what the occupant allowed, the entrant's plans for the interior cannot turn an invited entry into a breaking. Without that rule, every invited guest who later committed a felony inside would become a burglar, and the breaking element would no longer separate the intruder from the invitee.

State v. Thibeault, a Maine decision tracing the common-law rule, makes the principle concrete through State v. Newbegin, an 1846 case. The defendant in Newbegin lifted the latch of an unlocked door to a dry goods store that was open for trade, took cloth, and left without being noticed, and the burglary conviction was reversed for lack of a breaking, since the door had been closed only against dust and cold and was meant to be opened by anyone who wished to come in.²⁵ Set that result beside the closed, unlocked door in the preceding section, where opening the door without the owner's authorization was a sufficient breaking.²⁶ The physical act is the same in both settings, a hand lifting a latch, and the one fact that changes the answer is whether the occupant had invited entry. Consent therefore operates as a filter on the first checkpoint: it can cancel a breaking that the force alone would otherwise establish.

The same logic governs a defendant who holds a key. A homeowner who gives a friend a key so the friend can water the plants during a vacation has authorized the friend to come in, so if the friend uses the key to enter and then steals, the entry was authorized, there was no breaking, and the case is not burglary.²⁷ Students lose this checkpoint when they let a later theft convert authorized entry into a breaking, since nothing about the entry itself changed when the friend's plans did. Only the burglary charge fails, because the theft inside remains a separate offense that can be charged as larceny.²⁸ The principle is durable enough that People v. Gauze, a California decision under a statute that dropped the breaking requirement, still treats it as settled: the entry must be without consent, so there is no burglary when the possessor invites the defendant in or actively assists the entrance, for example by opening a door.²⁹

Consent has edges, and the first is a limit of time. Consent confined to certain times does not authorize the defendant to use force to enter at other times.³⁰ The limit extends to parts of the structure as well: a servant who entered a section of the house without permission committed a breaking because the occupant had closed that section off and had not invited the servant in, and a servant who opened the dwelling to a conspirator committed one because the occupant could do no more to keep the intruder out.³¹ The reasoning is the same in each setting. The occupant's permission marks the boundary of what is no longer an intrusion, so an entry that goes past the boundary is as much an intrusion as if no permission had ever been given.

This scene differs from the key-holder's in the one respect that matters. Both defendants held permission of some kind and both meant to steal, yet the key-holder entered within the permission, while the neighbor entered outside it, after pushing past a door the occupant had closed against him at that hour. Where the entry falls relative to the boundary the occupant set therefore decides whether there was a breaking.

The second limit concerns how the consent was obtained. Consent that the defendant procures by fraud or threats does not defeat the breaking, and the entry instead counts as a constructive breaking.³³ This limit follows from the same reasoning that supports the consent rule. An occupant invites a person in either by granting authority or by negligently leaving an opening, but an occupant who yields to a lie or a threat has done neither, because the intruder is the one who caused the opening.³⁴ Consent of that kind is genuine in form only, and the law does not treat it as the invitation that makes an entrant a guest.

One caution keeps the common-law rule from being confused with a statutory variant. At common law a place open to the public has invited everyone in, so walking into it is no breaking.³⁵ California's statute eliminated the breaking requirement, and under it the implied invitation to enter a store during business hours covers lawful purposes only, so a thief who enters during business hours is outside the invited public and can be convicted of burglary.³⁶ That result belongs to the modern statutory departures discussed later in this chapter. On a common-law problem, the open store remains the open store of Newbegin, and the entrant's concealed purpose does not by itself make the entry a breaking.³⁷ The fraud limit leaves one question open, which is what happens when the consent itself was obtained by trickery or threats, and the next section on constructive breaking takes it up.

Constructive Breaking

The preceding section closed on a question it could not yet answer: what happens when the occupant's consent is itself the product of a lie or a threat? The answer lies in the doctrine of constructive breaking, under which the law finds a breaking from the circumstances even though the defendant overcame no barrier by force.³⁹ A constructive breaking occurs when the defendant gains entry by fraud, threats, or intimidation, or by entering through the chimney.⁴⁰ The link to consent is direct, since consent that the defendant procures by fraud or threats is itself treated as a constructive breaking.⁴¹ An occupant who unlocks a door because of a lie has performed the physical act of opening it, but the defendant caused that act, so the law does not treat the opening as an invitation.

The reason for the doctrine appears once you recall what the breaking element measures. At common law the occupant could invite an entry in two ways, by granting authority to come in or by carelessly leaving an opening, and the law was unwilling to punish someone who had been invited.⁴² Neither kind of invitation exists when a defendant lies or frightens a way in, because the intruder, not the occupant, caused the opening.⁴³ Constructive breaking therefore applies the basic rule's own reasoning to a case where no force appears.

The rule also removes an incentive that a force-only definition would create. If a lie or a threat could stand in for the occupant's consent, a would-be burglar could escape liability by talking the occupant into opening the door instead of forcing it, and the result would turn on whether the defendant happened to touch the lock. Treating the trick as a breaking ties the outcome to the question the element actually asks, which is whether a barrier the occupant had closed was overcome without the occupant's real consent. The chimney, the traditional example, needs no deception at all: coming down a chimney is a breaking even though it uses a pre-existing opening, because the occupants have made the structure as closed as they can, and that opening cannot fairly be read as an invitation.⁴⁴

The standard illustration of fraud involves a defendant, P, who wants to commit a felonious assault on V inside V's apartment, where the door is securely locked. P knocks, and when V asks who is there, P answers that P is a friend of V's brother who has been asked to deliver a message. P has never met V's brother. V unlocks the door and invites P in, and P enters. P used no force against any barrier, so a rule that demanded force would acquit, yet the best answer is that P is guilty of burglary, because entry obtained by fraud is a constructive breaking.⁴⁵ V opened the door only because of the lie, so the invitation was genuine in form alone. A standard exam problem about a thief who gains entry to a hotel room by means of a fraud reaches the same conclusion on the breaking element, and whether the room is a dwelling and whether the thief had the required intent are separate questions for later checkpoints.⁴⁶

The older common-law illustrations show how far the doctrine reaches. Entry was adjudged burglarious where the defendant knocked and rushed in with a felonious purpose when the door was opened, where the defendant pretended to seek lodging and then attacked the landlord, and where the defendant had a constable gain admittance to search for traitors and then bound the constable and robbed the house, because the law will not let itself be evaded by such devices, least of all under the cover of legal process.⁴⁷ American courts have carried the same reasoning forward: admission obtained by artifice or fraud, or on a pretense of business or of a social visit, is a constructive breaking.⁴⁸

The two scenes differ only in what stood behind the open door. In the first, P said nothing false and made no threat, so V's invitation was real, and P's later decision to steal cannot turn an authorized entry into a breaking; the timing and content of P's intent belong to the intent checkpoint taken up later in this chapter.⁴⁹ In the second, the threat produced the opening, so the consent fails and the entry counts as a breaking.⁵⁰ Students lose this checkpoint when they stop at the fact that the occupant opened the door, since the question is what induced the occupant to do it.

Constructive breaking explains how a defendant can pass the occupant's barrier without force. It leaves open what the barrier must protect, and the next section takes that up: the breaking must lead into the structure itself or into a separately secured part of it.

Breaking Into the Structure

The earlier checkpoints asked how a defendant gets past an occupant's barrier: by force, by trespass, or by a fraud or threat that stands in for force. This checkpoint asks what the barrier must protect. The breaking must result in entry into the structure itself or into a separately secured portion of it, such as a locked closet or wall safe.⁵² A defendant who merely breaks into a box, trunk, or similar container located within the dwelling has not satisfied the element.⁵³ The line therefore runs between compartments of the building and containers for belongings, and no amount of force moves a container to the other side of it.

The two halves of the rule rest on different reasons. A locked closet or wall safe counts because the occupant has closed off a second enclosed space inside the first, so forcing it overcomes one more barrier of the kind the breaking element has measured all along: a closing the occupant put in place and the defendant opened without invitation. A trunk or box is excluded because it is a vessel for belongings and not a space anyone lives in, so forcing it intrudes on the occupant's property without intruding on the occupant's habitation, and the theft crimes already address that harm. The exclusion also protects the shape of the offense. If every locked container inside a house counted, any invited guest who forced a drawer or a jewelry box would have satisfied the first element of a crime aimed at intruders into homes, and the difference between burglary and ordinary theft would shrink to whether the stolen item happened to be locked up.

The rule matters most for a defendant who is already inside. A guest who was invited in, or a visitor who walked into a place open to the public, committed no breaking at the front door, so the only candidate for a breaking is a barrier met later in the interior. That inner barrier supplies the breaking only if it closes off part of the structure. A standard exam illustration shows the pattern: X, Y, and Z enter a casino shortly before closing and hide in the bathroom until it closes, then hold the employees at gunpoint, and X blows open a safe large enough to walk into while Y and Z enter it and grab sacks of money.⁵⁴ Their initial entry was no breaking, but blowing open the safe probably is one, because in some states breaking into a large enclosed area within which a person can stand is sufficient, which would make X a burglar and Y and Z his accomplices.⁵⁵

That result is a jurisdictional variation and not the core common-law rule. A space big enough to stand in works more like a small room than like a box, which explains why some states place it on the structure side of the line, but the common-law text names only the closet and the wall safe. An exam answer should therefore flag that the walk-in safe depends on the jurisdiction instead of announcing it as settled. The casino must also clear the other checkpoints, since a place of business is not a dwelling at common law and fits only where a statute has widened the structures burglary protects, a change taken up in the section on modern statutory departures.⁵⁶

In both scenes the guest was invited, the item was locked, force was used, and valuables were taken. The only fact that changed was what the forced barrier closes off, and that alone moved the answer. Students lose this checkpoint when they treat any locked object inside the house as a second front door, since a lock shows only that the occupant wanted to protect the item, while the rule asks whether the barrier closes off a portion of the structure.

Even a barrier that qualifies must be overcome to gain entry, and the next section takes up that direction of travel: a breaking that only lets the defendant leave does not count.

Breaking to Enter, Not Exit

The earlier breaking checkpoints asked how the defendant got past the occupant's barrier, whether the occupant had invited the entry, and what the barrier closed off. The last checkpoint asks what the force was for. The breaking must facilitate the defendant's entry into the dwelling, so a breaking that occurs only to let the defendant exit does not count, even when the defendant earlier hid inside intending to commit a felony.⁶⁰ The element therefore requires breaking to enter, and force used to leave a structure overcomes no barrier that stood between the defendant and getting in. The same smashed window can be a breaking or nothing at all, depending only on whether the defendant used it to go in or to go out.

The reason follows from what the breaking element measures. It captures the moment when a person overcomes a closure the occupant put in place and gets into the dwelling without an invitation, and the law was unwilling to punish someone the occupant had in effect already let in.⁶¹ A defendant who got inside without a breaking did so because the occupant granted authority, left an opening, or kept the place open to the public, so whatever intrusion followed traces back to the occupant's own invitation or carelessness. Force applied afterward to a window or door adds nothing to that history, because the defendant was already inside and the barrier now stands only between the defendant and the street. The rule also leaves the conduct inside punishable, since whatever the defendant does once inside, such as stealing, remains a separate crime with its own penalty. Declining to call the exit a breaking therefore leaves no wrongdoing unaddressed.

In both scenes D intended to steal and smashed a window that was a real barrier. The variable that moved the answer is direction: in the first scene the force got D in, and in the second it only let D out. The store also raises the dwelling question, since a place of business is not a dwelling at common law, but that checkpoint is separate, and the direction rule gives the same result in a dwelling that the defendant entered by invitation or through an open door.⁶² Larceny may still apply to the theft in the second scene, but no burglary can rest on the exit.

The casino scenario from the preceding section shows how this checkpoint fits with the one on structures. X, Y, and Z hid in a bathroom until closing, so their initial entry involved no breaking, and blowing open the safe probably supplies one in states that treat a walk-in safe as a separately secured portion.⁶³ The safe counts because forcing it let them into a space they had not yet reached. Had they instead smashed a window to flee with the cash, the window would have admitted them to nothing, and the exit would supply no breaking. Students lose this checkpoint when they see hiding with felonious intent followed by force and conclude burglary without asking which way the defendant was going.

The direction rule was once disputed, and the dispute shows why it is stated as it is. Hale reasoned that the burglary indictment charged breaking and entering, in the Latin of the pleading "fregit intravit," so an allegation of "fregit & excivit," breaking and leaving, would not suffice.⁶⁴ That answer also matches the reason for requiring a breaking, since if nothing was broken until the leaving, any earlier intrusion rested on the occupant's negligence or grant of authority. England later settled the question by statute, making a breaking to leave a sufficient breaking, but American courts continued to follow the original distinction in defining what counts.⁶⁵ Some jurisdictions' housebreaking offenses likewise include breaking out of a house that was entered without a breaking.⁶⁶ A jurisdiction that has made that choice by statute changes the result on this element, so the habit of checking the local definition before applying the common-law elements applies here too.

This purpose check comes last because it asks what the force was for, and that question arises only after the earlier checks have shown that some barrier was forced. A defendant who clears the first four questions and fails the fifth has used force, but only force to leave, so the breaking element fails and common-law burglary fails with it.