Dwelling of Another

Dwelling of Another

The breaking and entry elements describe what the defendant did to get in, and the next two elements describe the place the defendant got into. At common law the offense required the breaking and entering of the dwelling house of another at night with intent to commit a felony, so the structure had to qualify twice: it had to be a dwelling, and it had to be the dwelling of someone other than the defendant.¹ Both requirements take their meaning from the interest the offense protects. Common-law burglary was an offense against the security of habitation or occupancy rather than against ownership of property, which is what separates it from theft statutes, whose purpose is to protect ownership interests.² The same regard for the home appears in Semayne's Case, decided in 1603, where the court described every person's house as a castle and fortress that shelters its occupant against injury and violence and gives the occupant a place of repose.³

That choice of protected interest decides which questions the law asks about the place. A rule built around ownership would ask who holds title and what the property is worth, but a rule built around habitation asks how people actually live there. The first question is whether the structure is a dwelling, which turns on whether someone uses it as a home, and the next subsection shows that regular use for sleeping answers it, even where the place also serves a business. The second question is whose dwelling it is, and the answer follows occupancy, because the harm the offense targets falls on the person whose living space is invaded. A place where the defendant lives is not someone else's habitation, so the defendant is not invading anyone's living space by entering it. Title and commercial character therefore drop out of both questions, and the two subsections below take the questions in that order.

Statutes in many states have since moved away from the dwelling concept. Iowa, for example, replaced "dwelling house" with "occupied structure" in 1978, a term that reaches anything that would be a dwelling and much more.⁴ Those departures come later in this chapter, and the discussion here states the common-law rules, beginning with what makes a structure a dwelling.

What Counts as a Dwelling

A structure qualifies as a dwelling if someone uses it regularly for sleeping.⁵ The test focuses on sleeping because the place where people sleep is where they are most exposed, and it is where the interest in security of habitation, which common-law burglary exists to protect, is strongest. That interest belongs to the people who live in a place, so the size and worth of the structure play no role. The original term for the protected building, mansion house, was understood from the start to include every dwelling, however modest.⁶ The question is one of use, and the rule has four working parts. Two describe situations in which dwelling character survives (mixed use and temporary absence), and two describe situations in which it never arises or has ended (before the first move-in and after the last occupant leaves for good). Taking them in that order shows what the rule protects at each point.

Sleeping use is enough even when the occupants also use the structure for something else, such as conducting a business.⁷ A shop on the ground floor takes nothing away from the exposure of the person who sleeps upstairs, so the habitation interest is the same as in a house with no shop. The dividing line therefore runs between structures where someone sleeps and structures where no one does, and it does not run between homes and commercial buildings as such.

A pure business premises falls on the other side of that line. In a short-answer illustration, a defendant who breaks into a bank at night to steal cannot be convicted of common-law burglary, because the bank is a place of business and not a dwelling.⁸ The only fact that changed from the shopkeeper's building is that nobody sleeps in the bank. Many modern statutes have enlarged the definition to reach any structure, so the same defendant may still be guilty under a statute even though the common-law element fails.⁹

Temporary absence by the occupants does not strip a structure of its dwelling character.¹⁰ No one needs to be inside when the offense occurs. Residents who are away for a short time, or for extended portions of the year, still have a dwelling, and so does a building occupied in the immediate past by a recently deceased resident.¹¹ The reason is that an absence suspends the use without ending the habitation. The occupants still treat the place as the home they will return to, so an intruder who enters while they are gone invades a living space that remains theirs. A rule that protected homes only while someone was inside would invite burglars to wait for the family to leave.

The two negative limits on the rule mirror each other. A structure is not a dwelling before anyone has moved in, and it stops being one after all of its occupants have moved out without any intent to return.¹² In both cases no one has a habitation there for an intruder to invade, so the interest that the dwelling element protects has either not yet attached or has gone. An unfinished house shows the first limit, since a building that no one has made a home does not qualify.¹³ A note in the legislative bill file for a Maryland statute, recounted in Warfield v. State, shows the idea in practice: the statute was meant to fill a gap left by decisions holding that an unoccupied beach cottage is not a dwelling house.¹⁴ On that reasoning, a cottage nobody uses as a residence lies outside the rule, while a house its owners leave empty for months while intending to return remains their home. Intent to return is therefore the fact that separates the vacationing family from the family that has moved away, and exam facts about a for-sale sign or a seasonal home turn on it. Students lose this checkpoint when they ask who was home on the night of the entry instead of asking whether anyone lives there.

The structure that counts as a dwelling can also extend beyond the house itself through curtilage, the area immediately surrounding a house, which burglary law treats as part of the house. In United States v. Dunn, a Fourth Amendment case that borrows the concept, the Supreme Court explained that curtilage originated at common law to give the area immediately surrounding a dwelling house the same protection under the law of burglary as the house itself.¹⁵ Blackstone's Commentaries drew the line by proximity: a barn or stable inside the same common fence as the mansion house can be burgled even though it is not under the same roof, while a distant barn does not share the house's protection.¹⁶ Curtilage widens what counts as the dwelling without relaxing the entry requirement. A defendant may be convicted of burglary for stealing from a homeowner's barn within the curtilage, but only by actually getting inside the barn's four walls.¹⁷ Most modern statutes have replaced the dwelling house with broader terms such as building or structure, and they often keep the dwelling as an aggravating fact that raises the grade of the offense. The last section of this chapter takes up those statutes.¹⁸

Occupancy, Not Ownership

Once a structure qualifies as a dwelling, the element still asks whose dwelling it is, and the answer must be someone other than the defendant. Occupancy, not ownership, decides that question.²⁰ The reason follows from the interest the offense protects. Common-law burglary guards the occupant's right to live in a home free of invasion, so the person harmed by a felonious entry is the person whose living space was entered, whatever the deed says.²¹ Title therefore stops tracking the protected interest in both directions. An owner who has let others live in a building has handed the habitation over to them, so the owner's entry intrudes on their home. A person who lives in a place has a right to be there, so entering it intrudes on nobody's habitation.

The occupant's side of the rule has a leading illustration in People v. Gauze. The defendant shared an apartment with a man named Miller and a third person, and he had the right to enter the premises at all times.²² After a furious quarrel, he borrowed a shotgun from a neighbor, returned to the apartment, walked into the living room, and shot Miller. He was convicted of assault with a deadly weapon and of burglary, the burglary resting on his entry into his own apartment intending to commit the assault.²³ The California Supreme Court held that he could not be guilty of burglarizing his own home.²⁴

Gauze is a statutory decision, and it should be learned as one. California's burglary statute reaches anyone who enters a house, room, apartment, or similar listed place with intent to commit larceny or any felony, and it had already dropped the breaking requirement and widened the structures covered.²⁵ The court therefore had to decide whether the Legislature had also abandoned the common-law limit that the dwelling belong to another, and it answered by asking what the offense was built to protect. At common law burglary was directed at habitation and occupancy, and a person could not be convicted for entering his own home with felonious intent, a rule that covered joint occupants as well as sole owners.²⁶ The court concluded that the statute kept the core of that idea: a burglary remains an entry that invades a possessory right in a building, committed by a person with no right to be there.²⁷ Gauze thus explains the common-law principle by showing that even a broadened statute preserved it.

The facts show why the principle takes this shape. The defendant's entry, even for a felonious purpose, invaded no possessory right of habitation, because only an intruder's entry could do that.²⁸ His right to enter was a personal one that his roommates' consent could not condition, so no roommate could have turned him away at the threshold or ejected him once he was inside. A stranger who walks into the same apartment has no such right and can be excluded, which is exactly what makes the stranger's entry an invasion.

Placed side by side, the landlord and the defendant in Gauze show that the facts which look important do not decide the element. The landlord has title, a key, and a felonious purpose, yet the tenant's occupancy makes the apartment another's dwelling. The defendant in Gauze lacked sole title but lived in the apartment, could enter at will, and invaded no one's habitation. His shooting of a roommate is punishable as an assault, but it did not turn his own home into someone else's. The felonious intent supplies the mental element of burglary, and it cannot supply the invasion that the dwelling-of-another element requires. Students lose this element when they treat ownership of the building as the answer to whose dwelling it is.

Other courts reach the same result for occupants. In State v. White, the Nevada Supreme Court reversed a burglary conviction for a man who owned the house, kept a key, and lived there on weekends under a separation arrangement, and who entered on a Friday and shot his estranged wife and her boyfriend. The court reasoned from Gauze that Nevada's statute carried forward the common-law understanding that a person cannot burglarize his own home, and that the common-law rule covered joint occupants.²⁹

The right to occupy must be a present one, which is why the same body of law can convict a spouse. In State v. Rubio, the New Mexico Court of Appeals collected decisions from other states holding that occupancy or possession, not ownership, is the test, so that a husband who once shared a home can be guilty of burglary when his estranged wife holds it and refuses him entry.³⁰ The court also noted a Michigan decision treating a court order barring the defendant from his own home as temporarily stripping his possessory rights.³¹ In each case the defendant's lost right to be inside leaves the structure another person's habitation, which is the same logic that protects the tenant against the landlord.

The requirement that the structure belong to another appears only in a minority of modern burglary statutes. Statutes without it generally reach the same result through the usual requirement that the entry be unprivileged, since a person entering his own home has a privilege to do so.³² The last section of this chapter returns to those statutory departures.