Concept

Burglary Versus Criminal Trespass

Model Penal Code Burglary

Burglary Versus Criminal Trespass

The elements taught so far can be checked against a neighboring offense in the same article, because the Code defines criminal trespass by taking away exactly one of them. Section 221.2(1) makes it an offense for a person who, knowing that he is not licensed or privileged to do so, enters or surreptitiously remains in any building or occupied structure, or separately secured or occupied portion thereof.¹ Those are the same nested places that § 221.1(1) protects, so the two offenses cover identical premises and the difference between them has to lie elsewhere.² It lies in the mental element. Burglary requires that the actor enter with purpose to commit a crime therein.³ Trespass asks instead whether the actor knew the entry was unlicensed, which fits the general pattern for trespass offenses of requiring awareness that the intrusion is unwarranted, a requirement that excludes both the inadvertent trespasser and the person who believes he has permission.⁴

The extra element carries the felony label for reasons that follow from what each offense protects. Both offenses violate the owner's control over who crosses the threshold, and an unauthorized entry alone does that much and no more, so the Code punishes it at the misdemeanor level. An intruder who has already settled on a crime to commit inside has taken the first step toward a further harm to the people or property there, and that added danger is what justifies treating the entry as a felony. Keeping two offenses also lets the charge follow what the proof shows, so the intruder who came to steal and the intruder who came for shelter are not treated alike.

The grading in the text reflects that division. Criminal trespass under § 221.2(1) is a misdemeanor if it is committed in a dwelling at night and otherwise a petty misdemeanor.⁵ Burglary under § 221.1(2) is a felony of the third degree, rising to the second degree if it is perpetrated in the dwelling of another at night or if, in the course of the offense, the actor inflicts or attempts to inflict bodily injury or is armed with explosives or a deadly weapon.⁶ A dwelling at night aggravates both schemes, yet the most serious trespass is still a misdemeanor, while the baseline burglary is already a felony.

Two differences in wording are visible on the face of the texts. The first concerns conduct: § 221.1(1) speaks of one who "enters," while § 221.2(1) reaches one who "enters or surreptitiously remains," a contrast taken up earlier in connection with entry during open hours.⁷ The second concerns license. Section 221.2(1) writes knowledge of the absence of license or privilege into the definition of the offense, so the offense as defined includes that awareness.⁸ Section 221.1(1) frames the matter differently: it describes entry with criminal purpose and then removes from the offense an actor who is licensed or privileged or who entered premises open to the public, and it contains no knowledge clause.⁹ The material here does not say how a court treats an actor who purposes a crime inside and mistakenly believes permission was given, so an answer should quote both texts as written and flag that situation instead of resolving it.

Dee and Eddie share the premises, the hour, the knowledge that they lack permission, and the absence of any license, and they differ only in purpose. That one variable moves the result from a third-degree felony for Dee, absent any aggravating circumstance, to a petty misdemeanor for Eddie, since an office is not a dwelling.¹¹ Students lose this issue when they treat an unlicensed entry alone as burglary, because on the Code's text the unlicensed entry is the shared base of both offenses and only the purpose to commit a crime inside lifts it into burglary. The relationship between Dee's burglary and the theft she intended is taken up in the final section of this chapter.

The same article contains two neighboring rules that stay outside this comparison. The defiant-trespasser provision, § 221.2(2), reaches a person who, knowing he is not licensed or privileged to do so, enters or remains in a place where notice against trespass has been given by actual communication, posting, or fencing, and it is a petty misdemeanor if the offender defies an order to leave personally communicated by the owner or another authorized person and otherwise a violation.¹² Section 221.2(3) then lists affirmative defenses to trespass: abandonment, open-to-the-public entry coupled with compliance with lawful conditions of access, and a reasonable belief that the owner would have licensed entry. The burglary text states only the abandonment defense in so many words.¹³

Exam Analysis Steps

Because the two offenses share a base and differ by one mental element, an intrusion problem is best sorted by testing the shared base first and the purpose question second. The steps are these:

Identify the premises entered and confirm that they are a building, an occupied structure, or a separately secured or occupied portion of one.
Ask whether the actor was licensed or privileged to enter, since either authority removes the entry from both offenses, and check the open-to-the-public exception under whichever provision is charged, remembering that § 221.2(3)(b) adds a compliance condition that § 221.1(1) does not state.
Ask whether the actor had purpose to commit a crime inside at the moment of entry, and if so treat the offense as burglary and grade it under § 221.1(2).
If that purpose is missing, ask whether the actor knew the entry was unlicensed, and if so treat the offense as criminal trespass and grade it by whether it occurred in a dwelling at night.
If neither the purpose nor the knowledge appears on the facts, say that neither offense is established on the text, and flag any claim that the actor believed permission existed instead of resolving it.

Burglary Versus Criminal Trespass

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