Protected Premises

Protected Premises

The premises clause of § 221.1(1) reaches an actor who enters "a building or occupied structure, or separately secured or occupied portion thereof."¹ Read slowly, that phrase names three nested categories: a building, an occupied structure, and a separately secured or occupied portion of either one. The first two categories describe whole places, while the third picks out a part of a place, and the nesting matters because an actor may be welcome in the whole and unwelcome in the part. The list also shows that the Code defines the protected place by how it is used and secured as well as by what it looks like, so the offense does not depend on whether a structure resembles a house or a shop.

The reason for drawing the category this way follows from what burglary protects. The offense attaches to places where people live, work, and keep their belongings secure, and a definition tied to use and security brings in any place that functions as a home or workplace, whatever its architecture. The same definition lets a locked unit inside a larger building that the public may lawfully enter count as a protected space of its own. The next two subsections take the categories in order, beginning with the building or occupied structure and then turning to the separately secured or occupied portion.

Building or Occupied Structure

The first premises category packs two alternatives into one phrase, "a building or occupied structure," and the second alternative is the one that needs a definition.² Section 221.1(1) uses the term without explaining it, because the explanation sits in the Code's definitions provision, § 221.0, where "occupied structure" means "any structure, vehicle or place adapted for overnight accommodation of persons, or for carrying on business therein, whether or not a person is actually present."³ The drafters printed that whole definition inside square brackets, which marks it as language an enacting state may fill in or adjust to suit its own law.⁴ The reproduced definitions provision contains no definition of the word building, so this section concentrates on the term the Code does define.

Read closely, the definition has three working parts, and each does a different job. The first part names the kind of place: a structure, a vehicle, or simply a place, which is a deliberately wide net. The second part narrows the net by asking what the place has been adapted to do, and it offers two alternatives joined by "or": overnight accommodation of persons, or carrying on business there. A place adapted for either purpose qualifies, so a camper fitted for sleeping and a shop that has never housed anyone overnight both fall inside the definition. The third part removes a variable altogether, because it does not matter whether a person is actually present. A vehicle therefore qualifies only when it meets the adaptation test, and a bare piece of land is a place but is not a place adapted for either purpose.

Defining the category by adaptation instead of by presence follows from what burglary guards. The offense protects spaces that people have set aside for living or working and have secured against outsiders, and the owner has done that setting aside whether or not anyone is home at the moment. If presence were required, an empty shop after closing, like the dark office suite in the opening example of this chapter, would fall outside the offense, and the line between burglary and mere trespass would turn on timing the owner cannot control. The adaptation test asks about something durable, the character of the place, so it gives the same answer at noon and at midnight. The label invites the opposite assumption, and students lose this issue when they read the word occupied as requiring a person inside.

The pole on the other side of the line shows which fact does the work. Only the adaptation of the place changes the answer in the next pair.

Because the definition lives apart from the offense, a reader who looks only at § 221.1(1) can easily apply the everyday meaning of the words and miss the definition. A Kentucky illustration shows the same discipline applied to a different state's statute. Jack Phillips entered a 100-year-old home that its owners had abandoned for two years, and he argued that the structure should be treated as a building and not as a dwelling, because the Kentucky burglary provisions treated those two categories differently.⁷ Kentucky's burglary chapter has its own definitions of building and dwelling, so the analysis began with the plain meaning of those defined terms and not with a general impression of what a house is.⁸ The Kentucky labels and grades are not the Code's, and only the method carries over. Under the Code the defined term is occupied structure as § 221.0 states it, and because that language is bracketed, a question that names a particular state's statute may call for that state's version while a question that simply invokes the Code calls for the printed one.

Separately Secured Portions

The third premises category, a "separately secured or occupied portion thereof," answers a puzzle that the first two categories leave open.¹⁰ A tenant who is lawfully in the shared hallway of an apartment building and a customer who is lawfully on the sales floor of an open store are each inside a building with permission. If the building were the only protected place, either one could answer a burglary charge by pointing out that the entry into the building was lawful, even after stepping from the hallway into a locked apartment or from the sales floor into an employees-only room. The closing word of the phrase, "thereof," ties each such portion back to the building or occupied structure that contains it, which shows that the clause carves smaller protected places out of a larger one.¹¹

The separately secured or occupied portion clause therefore makes each such unit a protected place in its own right, and the rest of the offense is measured against the unit the actor actually entered. The exceptions at the end of the section speak of "the premises" being open to the public and of an actor being "licensed or privileged to enter," so they attach most naturally to that unit and not to the building around it.¹² The license question is asked about the apartment or the staff room, and the actor's welcome in the hallway or on the sales floor does not answer it. The text joins "secured" and "occupied" with "or," so a unit can qualify by either route: a locked apartment door shows that a space is secured, and a private office assigned to a particular occupant shows that it is separately occupied.¹³ The text does not say how much separation is enough, and nothing in this chapter depends on any court's answer to that question, so the cases to hold are the locked residence and the closed workplace unit.

The reason for the clause follows from the interest burglary protects. A person's security interest in a locked apartment or a private office does not disappear because the surrounding building is open to residents, employees, or visitors. If lawful presence anywhere in the building defeated the offense, every person with a good reason to be in the hallway, the lobby, or the sales floor would hold a free pass into every private unit opening off it. The more people a building admitted, the less protection each unit inside would have. Measuring each unit on its own removes that result, because a private space keeps its protection no matter how many people may lawfully use the common areas around it.

The workplace version runs the same way. A customer who slips through a door marked staff only into a locked stockroom has entered a separately secured portion of a store, and on the clause's logic the store's public hours say nothing about that room. The contrasting pole is a shared area that no one has separately secured or occupied.

The two scenes differ in one fact: whether the actor entered a unit that someone had separately secured or occupied. Kim's lawful presence in the hallway did not carry into the apartment, while Leo's lawful presence in the building carried into the lobby because the lobby was never a separate unit. Had the neighbor invited Kim into the apartment, the licensed-entry exception would apply to that unit and the entry would not be burglary. The clause fixes the place about which permission is asked, and the exception supplies the answer. The trap is treating lawful presence in the building as permission for every room inside, and a later section on licensed or privileged entry takes up how far a license reaches.

Once the protected place has been identified, the next element asks what the actor must intend when crossing its threshold.