Introduction

Burglary Under the Model Penal Code

Introduction

That result surprises anyone who learned burglary as forcing a way into a home at night, and the statute that produces it is organized around two questions about the actor. One asks whether the actor crossed into a protected place; the other asks whether the crossing was made with a criminal design and without permission. Both questions come from Model Penal Code § 221.1(1), a model statute, meaning a template the American Law Institute drafted for legislatures to adopt or adapt, which states the whole offense in one sentence: “A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”² A sentence that dense is best handled one clause at a time, because each clause carries a separate requirement and a fact pattern can fail on any one of them.

Read that way, the sentence has four working parts. The verb “enters” supplies the act. The phrase “a building or occupied structure, or separately secured or occupied portion thereof” names the protected place, and its last category reaches a distinct part of a larger place. The words “with purpose to commit a crime therein” supply the mental state, the element that separates a burglar from an ordinary trespasser. The closing “unless” clause removes two situations from the offense: entry into premises that are open to the public at the time, and entry by an actor who is licensed or privileged, meaning someone who has permission from a person in control of the premises or some legal authority to be there. A single affirmative defense then follows the definition, namely that the building or structure was abandoned. An affirmative defense is a ground the defendant puts forward to avoid conviction even though the elements of the offense are otherwise present, so abandonment sits outside the four parts and is not one of them.³

Common-law burglary was the breaking and entering of the dwelling of another at night with intent to commit a felony.⁴ The Code's text says “enters,” not “breaks and enters,” and its target is “a crime,” not “a felony.” The drafters dropped the breaking requirement because it had produced absurd distinctions, and they kept entry without privilege as the core of the offense, which also keeps the statute from reaching a shopper who walks into a store during business hours already planning to steal.⁵ The common-law elements are taught in a separate chapter. Examination questions often announce whether the common law or the Model Penal Code governs, and the two versions differ at exactly the points noted above, so this chapter isolates the Code's version. It follows the statute's own order: the act of entering, the protected premises, the purpose requirement, the exceptions for public and licensed entry, the comparison with criminal trespass, the abandonment defense, and the relationship between burglary and the offense the actor meant to commit. Subsection (2) of § 221.1, which grades burglary into degrees, is covered separately.⁶ The analysis begins with the act, because the single verb “enters” already sets the Code apart from the forced-entry picture most people carry.