Entry Without Breaking

Entry Without Breaking

The first working part of § 221.1(1) is its verb. The statute asks whether the actor "enters" a protected place and says nothing about how the actor got there: no breaking, no force, and no requirement that the place be a dwelling.¹ That silence stands out against the structure it replaced. At common law a breaking had to amount to a trespass, so a resident's consent to the entry meant that even a forceful entry was no breaking, while consent obtained by fraud or threats counted as a constructive breaking.² The idea was that burglary punished a violation of the security designed to exclude. In State v. Newbegin, an 1846 Maine decision later reviewed in State v. Thibeault, a man lifted the latch of a dry goods store that was open for trade and took cloth. The conviction was reversed because the door had been shut only against dust and cold air and was meant to be opened by anyone who wished to come in, so no security designed to exclude had been violated.³

The breaking requirement also produced results that the Code's drafters found hard to defend. Entry through an existing opening, such as an open door or window, was no breaking, and neither was pushing a partly open door wider. Yet opening a door that was closed but unlocked was a breaking, and so was coming down a chimney, even though a chimney is an existing opening.⁴ The Maine court noted that judges applying the force aspect of breaking built up a thicket of fine distinctions that reformers rightly criticized.⁵ The Code drops breaking for that reason, but it keeps the core of the common-law idea, which is entry without privilege.⁶ The reasoning is straightforward from the victim's side of the door. An intruder who walks through a door left ajar has invaded the premises just as much as one who pushes it open. A breaking element makes guilt depend on the occupant's housekeeping, sparing the actor who found the way open and punishing the one who had to push. Removing it ties the offense to the actor's own conduct.

What counts as entering needs a reference point, because the text of § 221.1(1) does not define the verb. The usual reference point is the common-law rule on entry, so everything in the rest of this section is that baseline and not Code language. Under it, an actor enters by placing any part of the body inside the structure, even for a moment.⁹ A hand slipped inside while opening a window, or a foot that briefly passes through a window being kicked out, has been held enough.¹⁰ The rule takes this minimal form because the invasion happens when any part of the actor crosses the line. Staying longer adds nothing to the intrusion.

Objects are treated differently from body parts. A tool or other object inserted into the structure is an entry if the actor uses it to carry out the intended crime inside, and it is not an entry if the actor uses it solely to gain access.¹¹ The distinction rests on what the object is doing. A tool that opens the way is still preparation, while a tool that reaches in and takes is already carrying out the crime the actor came to commit, so it stands in for the actor.

The error to avoid is treating a tool used solely to open the way as an entry, since the purpose of the tool, and not how far it protrudes, decides the question. The entry requirement also keeps real content. A person who stands on the porch of a closed shop, planning to steal, and leaves when a neighbor appears has never crossed the threshold. That person is not guilty of burglary under § 221.1(1) however clear the plan, though attempt law may reach the conduct separately.¹³ One way to see why entry matters is that crossing onto private property with a criminal design marks the point at which preparation becomes invasion. Burglary lets that crossing stand in for the more demanding act an ordinary attempt requires.¹⁴

Once breaking is gone, something else must separate a burglar from a guest or a customer, and that something is permission. Modern statutes commonly replaced breaking with words such as "unlawfully" or "without authority," and the Code states the idea more precisely by excluding entries into premises open to the public at the time and entries by an actor licensed or privileged to enter.¹⁵ That structure also avoids the odd result of convicting a shoplifter of burglary because the intent to steal formed before walking into the store.¹⁶ The store in Newbegin would today be handled by the public-access exception, not by the absence of a breaking. The question "was the actor allowed in?" therefore does the work that breaking and trespass once did, and a later section of this chapter takes it up after the protected premises and the required purpose.