No License or Privilege

No License or Privilege

The first three elements of § 221.1(1), entry, a qualifying place, and purpose to commit a crime inside, all describe what the actor did and meant to do. None of them says whether the actor had any right to be there, and because the text contains no breaking requirement, an entry through an unlocked door is the same act as an entry through a smashed window. Something in the statute must therefore separate an intruder from a person who was welcome, and the closing clause does that work: the offense applies "unless the premises are at the time open to the public or the actor is licensed or privileged to enter."¹ That clause is where the idea of an unauthorized intrusion lives in the Code, so it is the place to ask whether the entry was permitted. Students lose this issue when they find a criminal purpose and never ask whether the entry was authorized.

The clause has two parts joined by "or," so either one defeats the charge. The first part looks at the premises and asks whether they were open to the public at the time of entry. The second looks at the actor and asks whether someone with authority gave permission, or whether the law itself authorized the entry.² Both parts rest on the same reason. Burglary punishes an intrusion that is unauthorized and carried out with criminal design. When the public has been invited in, or the actor has permission or legal authority, the entry is not itself a wrong, and the crime that follows can be punished as the substantive offense it is. Without the clause, ordinary shoplifting and theft by a guest would become burglary, because the act element is met by walking in and the purpose element by a plan to steal formed before arriving.

The two intruders share the same place, the same design, and the same intended crime, and they differ only in whether the entry was authorized. That one variable decides whether the burglary label applies at all, which is why the clause must be checked every time purpose is found. The next two subsections take the exceptions one at a time, beginning with premises open to the public, which turns on the condition of the premises, and then turning to licensed or privileged entry, which turns on the actor's own authority.

Premises Open to the Public

The first exception in the closing clause of § 221.1(1) removes an entry from burglary when "the premises are at the time open to the public."⁵ In ordinary terms, premises are open to the public when the owner or whoever controls them has invited people generally to come in, as a shop does for customers. The exception exists because burglary punishes an intrusion, meaning an entry the owner has not authorized, joined to a criminal design. When the owner has extended a standing invitation to everyone, walking through the door is the very thing invited, so the entry itself is no wrong and whatever the visitor does inside is punished as the crime it is. Put differently, the exception removes entries that involve no surreptitious intrusion and that add no aggravation to the crime the actor proposes to commit.⁶ Without it, every shoplifter who planned the theft before walking in would be a burglar.

The words "at the time" make the invitation a fact about the moment of entry rather than a permanent feature of the place. A store is open to the public during business hours and closed to the public after them, and the owner's invitation lasts only as long as the owner chooses to extend it. Tying the exception to the moment of entry preserves the owner's power to withdraw the invitation by closing, so that an entry after hours becomes the same kind of intrusion as an entry into a private home. Had the text said only "premises open to the public," a business that admits customers by day could be argued to sit inside the exception around the clock, and no shop could ever be burgled at night. Students lose this issue when they treat a store as open to the public at every hour merely because it is a store.

The two intruders differ in one respect: whether the public had been invited in at the moment of entry. The plan, the door, and the intended crime are identical. That the door was unlocked does not help Tara, because the Code contains no breaking element, and had she forced the door the analysis would not change. The exception therefore functions as a clock check, and it must be run against the time the actor crossed the threshold, whatever the hours the building keeps on other days.

The exception also looks only at the part of the premises the actor entered. A store that invites customers onto its sales floor has not invited them into every room, and the statute lists a separately secured or occupied portion of a building as a protected place in its own right.⁸

Openness also depends on what the person in control has actually done, so a place does not become public merely because some outsiders may have reason to be there. In State v. Shack, a New Jersey trespass prosecution arising from visits to migrant workers housed on a farmer's property, the court reversed the convictions because the visitors had invaded no possessory right of the owner, yet it said it was not opening the employer's premises to the general public where the employer had not done so.¹⁰ That decision rests on a different statute and a different question, namely whether the visitors had a right to be on the land at all. It belongs with the licensed-or-privileged exception in the next subsection, and it is not a burglary holding.

The trespass provision uses similar words but adds a condition. Section 221.2(3)(b) gives a defense when the premises were at the time open to members of the public and the actor also complied with all lawful conditions imposed on access to or remaining in the premises.¹¹ Section 221.1(1) contains the open-to-the-public words and no compliance clause: its exception asks only whether the premises were at the time open to the public.¹² The difference is visible on the face of the two texts, and the material here does not settle how courts treat an entrant who ignores a lawful condition of access, such as a rule barring a particular person from a shop. An answer should quote the burglary wording as written and flag the contrast with § 221.2(3)(b) rather than carry the trespass condition over without comment.

A second textual contrast concerns staying on. Section 221.1(1) speaks of one who "enters," while § 221.2(1) separately reaches one who enters or surreptitiously remains.¹³ The phrase "at the time," read with "enters," directs attention to the moment the actor crosses the threshold. The text does not say how a person who enters during open hours and then stays past closing is treated, and the material here does not either, so that situation should be flagged rather than resolved.

Licensed or Privileged Entry

The second exception in the closing clause of § 221.1(1) removes an entry from burglary when "the actor is licensed or privileged to enter."¹⁵ The two words name two different sources of authority. A license is permission to enter given by a person who has authority over the premises, such as an owner or a resident, so it depends on the will of whoever controls the threshold. A privilege is authority to enter that the law itself supplies, so it does not depend on the owner's permission and can exist even when the owner would refuse. The clause lists no particular licenses and no particular privileges. It asks whether the actor held one when crossing the threshold, and in most problems the live question is how far that authority reached.

A license can defeat the charge because of what burglary protects. The offense punishes an unauthorized intrusion joined to a criminal design, and the owner's control over who may cross the threshold is the interest the intrusion violates. When the owner has admitted the actor, the entry is no intrusion, and whatever crime follows inside is punished as the offense it is. Many state statutes reach the same result through other words, requiring that the entry be "unlawful," "unauthorized," or "without consent," and those formulas generally ask whether the entry was unprivileged, although courts have not always read them that way.¹⁶ The Code names the exceptions directly, which turns attention to what the permission actually covered.

Because the Code has no breaking element, the consent rules that the common law built around breaking are the reference point for how far a license reaches. At common law a breaking had to amount to a trespass, so when the resident consented to the entry, forceful entry was not a breaking; yet consent limited to certain times did not authorize entry at other times.¹⁷ The Code's own text says only "licensed" and does not address time limits.¹⁸ An answer should therefore present the time limit as reasoning from the common-law baseline and the ordinary meaning of permission. The logic is easy to follow, since a permission is the owner's decision about when, where, and how someone may come in, and an entry that goes beyond that decision is one the owner never made. Students lose this issue when they treat any permission as permission for every entry.

The two actors share the key, the house, the hour, and the plan, and they differ only in how far the owner's permission reached. That single variable decides whether the burglary label applies, which is why scope must be checked after a license is found. A time limit serves a function an owner needs, because it lets the owner extend trust in measured amounts, giving a neighbor the house by day without surrendering it at night. If a daytime license excused every entry, the limit would mean nothing, and owners would have to choose between giving full access and giving none.

Cole's result raises a question that state codes answer in different ways, namely whether a criminal purpose cancels permission that was otherwise given. In State v. Thibeault, the defendant argued under the Maine criminal code's burglary section that a person cannot be convicted of burglary when the individual rightfully in possession has given permission to enter, and he attacked a jury instruction that let jurors treat his intent to commit a crime inside the apartment as negating that permission.²⁰ The opinion recites that at common law consent to enter was a complete defense to burglary, because burglary was conceived as an invasion of the right of habitation.²¹ The material here does not show how the court resolved the argument, and the decision applies a state statute, so it is useful for the question it frames and cannot be treated as the Code's answer. Section 221.1(1) asks whether the actor "is licensed or privileged to enter" and contains no qualifier that withdraws a license because the actor's purpose is criminal, so on the Code's text a guest who holds a real license is excused from burglary and answers for the crime committed inside as that crime.²²

This pair swaps place for time. A license is bounded by place just as it is by hour, and that boundary connects licensed entry to the separately-secured-portion clause: authority to be in one part of a building carries no authority to be in another part that has been separately secured. The common-law consent rules in the material speak only of time, so the point about place rests on the Code's listing of a separately secured or occupied portion as a protected place and on the same reasoning about what the owner agreed to.²⁴

A license counts only if it reflects the owner's actual choice, and that is why the common law treated consent procured by fraud or threats as a constructive breaking, meaning the law deemed the entry forced even though the owner had said yes.²⁵ A resident who opens the door because of a lie, or under a threat, has not made the free decision that a license represents. The Code, however, has no breaking element, and the text of § 221.1(1) says nothing about a license procured by deception or intimidation.²⁶ Whether such a permission counts as "licensed" under the clause is therefore an open question here and not settled Code law. An answer should state the common-law rule as the reference point, say that the Code's text does not resolve the matter, and then argue it both ways: the clause asks whether permission was given, but permission extracted by lying or threats is not the owner's own choice, and the owner's choice is the interest the license exception protects.

A privilege is authority to enter that does not come from the owner, and the Code gives no catalogue of privileges. The material here supplies no burglary decision that fills the word with specific doctrine, so the general statement above is all that can safely be taught on the Code itself. One decision does show how authority to enter can exist without the owner's say-so. In State v. Shack, the defendants had gone onto a farmer's land to reach migrant workers housed there, and the New Jersey court reversed their trespass convictions because they invaded no possessory right of the farmer-employer.²⁷ The court reasoned that the farmer could assert no right to isolate the workers in any respect significant for their well-being, so representatives of aid agencies could enter to seek out workers at their living quarters, and workers could receive visitors of their own choosing.²⁸ The farmer had not consented, and the entry still fell outside the statute, which shows that the owner's permission is not the only thing that can justify crossing a threshold. The court also said it did not mean to open the employer's premises to the general public and assumed the employer could regulate or bar solicitors and peddlers, so the authority it recognized ran only as far as the workers' needs required.²⁹ That is a trespass decision under a different statute, so it illustrates independent authority and does not show how a burglary court would apply the Code's word "privileged."

The trespass provision adds a defense that burglary's text lacks. Under § 221.2(3)(c), it is an affirmative defense that the actor reasonably believed that the owner, or another person empowered to license access, would have licensed entry.³⁰ Section 221.1(1) contains no such clause and asks whether the actor "is licensed or privileged to enter," so an answer should not carry the belief defense over into burglary.³¹ The material here does not say how a court would treat an actor who only believed permission would have been given, and that situation should be flagged and not resolved.