The Nighttime Requirement

The Nighttime Requirement

The dwelling elements ask where the offense happened and whose home it was, and the nighttime element asks when. At common law, burglary occurs only if the defendant commits it at nighttime, and nighttime means the period during which a person cannot discern another's facial features by natural light.¹ That definition measures visibility, not the clock. Some have assumed that night simply runs from sunset to sunrise, but since the time of Lord Coke the common-law question has been whether a man's face could be made out by natural light, even after the sun had set.² Dusk and dawn therefore depend on how much light actually remains, and the hour at which night begins shifts with the season.

Each part of the test follows from the reason the element exists. Common-law burglary protects the home against invasion, and the night became one of the theoretical bases of the offense because it was thought to be the time when honest people fall prey to criminals.³ Blackstone, in a passage reproduced in a footnote to Taylor v. United States, a federal sentencing case that looked back to the common-law definition, placed the gravity of the offense in the dead of night, when the household is at rest and sleep has left the owner without defense.⁴ The facial-features test measures that exposure directly. When natural light is too weak to let anyone make out a face, the occupants are likely to be asleep, and an intruder cannot be recognized by anyone who wakes. Fourth Amendment opinions reflect the same intuition: dissents in Gooding v. United States and Payton v. New York describe a nighttime entry into a home as an unusually severe invasion of privacy and report that common-law entries to make an arrest were generally confined to daylight, although neither addresses the elements of burglary.⁵

Applying the element starts with the facts that describe the light. An entry into a home at 2 a.m., in darkness, when no natural light would allow a person to discern another's face, satisfies the element.⁶ The opposite pole appears in a short-answer illustration in which Bob and Jim open the unlocked door of Smith's garage and go in during the afternoon. The illustration finds a sufficient breaking and an unauthorized, trespassory entry, and it treats the garage as the modern equivalent of a stable within the curtilage of a dwelling, yet it concludes that the boys are not guilty of common-law burglary, because their activity occurred in the afternoon and burglary was a nocturnal offense.⁷ The same answer then assumes that the jurisdiction has dropped the nighttime requirement, as most jurisdictions have, and turns to a separate question about the boys' ages, an infancy issue that this chapter does not take up.⁸

Because the test follows the light, the same clock time can fall on different sides of the line. Dusk and dawn are the hard cases, since enough daylight or twilight to discern a face, whether it is just beginning or just fading, means the entry is not at night.⁹ The sun sets at different hours across the year, so an entry that is plainly in darkness in winter may occur in lingering daylight in summer.

The test also has a trap for anyone who treats natural light as any light found in nature. The light that makes it day is the sun's, including the glow of dawn and dusk. Blackstone refused to count moonlight as day, because otherwise many midnight burglaries would go unpunished, and artificial light, however bright, is treated the same way.¹⁰ Students lose this element when they let moonlight or a lit porch make it daytime.

The element attaches to both the breaking and the entry, and each act must occur at night, but the two acts need not occur on the same night.¹¹ A defendant who forces a lock in the dark on one night and walks in during the dark of the next night has therefore satisfied the element. The household is exposed during every dark period, so each act independently takes place in the hours the element singles out.

On an exam, the nighttime element is resolved by reading the time facts and by checking the jurisdiction. The first move is to ascertain which jurisdiction's elements govern, and if the facts do not supply them, to discuss the common-law elements and pay attention to the time of day.¹² If the facts say nothing about the time, the safe course is to write that you are assuming the burglary occurred at night or that the jurisdiction has abandoned the nighttime requirement for all degrees of burglary.¹³ That statement lets the analysis continue to the elements that are actually contested instead of stopping on a fact the problem never addressed.

Whether nighttime remains an element at all depends on the jurisdiction, which is why the first step comes first. Only a few jurisdictions still require that every form of burglary occur at night, several others keep nighttime as the fact that raises the offense to a higher degree, and the rest have discarded it entirely.¹⁴ Where a statute keeps the term it does not always define it, and a statutory definition, where one exists, may run from sunset to sunrise or from thirty minutes after sunset to thirty minutes before sunrise, in which case it governs over the facial-features test.¹⁵ A Maryland statute described in a dissent in Benton v. Maryland shows a legislature carrying the element forward, since it defined burglary as breaking and entering a dwelling house in the nighttime with intent to steal.¹⁶ The last section of this chapter returns to the statutes that have dropped the requirement.