Entry Into the Structure

Entry Into the Structure

Once a breaking has been found, the next question is whether the defendant made an entry, a separate element that the analysis takes up after the breaking and apart from it. A defendant makes an entry by placing any part of the body inside the structure, even for a moment.¹ The bar is low because of what the element marks. Common-law burglary existed to protect the security of the home and the person within it, so the offense looks to whether the defendant crossed the boundary into the dwelling's interior, and it does not ask how far in the defendant went or how long the intrusion lasted.² A hand or a foot is enough because either one puts the defendant personally inside the space the occupant is entitled to keep secure.

Because entry is its own element, it is run after the breaking and not folded into it. The same act can supply evidence of both. When X kicks in a door and fires a shot at someone inside, the kick is the breaking, and the bullet, and probably X's foot as well, crosses the threshold as the entry.³ The breaking element asks how a barrier was overcome, and the entry element asks what then went into the structure. Keeping the two questions apart prevents a defendant's force against a door or window from being counted twice, once as the breaking and again as an entry that never happened.

Two illustrations show how little the body-part rule requires. In the standard exam illustration, Z plans to steal jewels from a safe inside V's house, cuts a small piece of glass from a window, and reaches in with his hand to unlock it. Z is apprehended at that point, and the hand has already entered the dwelling, so the element is met.⁴ A New York decision involving a jewelry store reaches the same result on a smaller scale. The defendant, charged with attempted burglary, had cut a small hole in a security gate and argued that entry was impossible because the hole was too small for his body. The court held that entry occurs when a person intrudes within a building no matter how slightly, and a part of the body could have passed through the hole.⁵

A tool or other inanimate object counts as an entry only on a condition: the defendant must use it for the purpose of committing the felony inside the dwelling, and not solely to gain entry.⁶ The condition follows from what the object is doing. A bullet fired through a window at an occupant carries the felony itself into the room, so where A shoots through B's window intending to kill B, the inserted bullet supplies the entry.⁷ A pry bar slid under a sash to lift it has a different job, which is to get past the barrier, and that is the work the breaking element already measures. If a tool used only that way also counted as an entry, every breaking accomplished with a tool would complete the entry element automatically, and the two elements would merge into one.

The purpose limit therefore attaches to instruments and leaves body parts alone. A body part counts whatever it was doing inside, because a person whose hand is across the sill has personally intruded on the occupant's space, even when the hand's only task was to unlock the window, as in Z's case.

In both scenes the defendants intended the same theft, worked on the same kind of window, and wanted the same result of an open latch. The fact that moved the answer was what crossed the sill and for what purpose: a hand counts for any purpose, while a bar counts only when it is used to carry out the felony. Students lose this element when they treat a tool used only to open the way as an entry because the tool touched the window.

The entry must also cross the structure's boundary. At common law there had to be some movement across the external boundaries of the structure, and activity conducted outside them, however felonious, was not burglary.⁸ A federal court applying New York's statute, which keeps the common-law meaning of entry, therefore held that defendants who acted on the roof of a recruiting station could be convicted of burglary only if the government proved they actually got within the four walls or beneath the roof.⁹ The hand and the bullet count for the same reason: each crosses the plane of the window or wall.