Also known as: breaking and entering
Written by attorneys · grounded in primary & secondary sources — see below
An element of common law burglary consisting of the use of force, however slight, to create an opening into a dwelling or to gain entry. The force may be actual, as when a defendant opens a closed door or enlarges an opening, or constructive, as when entry occurs through fraud, threats, or the chimney. Consent to entry defeats the element unless the consent is limited in time or scope or was procured by fraud.
Benito Benitez arrived after dark at the trailer where his former foreman lived. He pried off a board that had been nailed across a side window, creating a gap large enough to insert a pry bar. The removal of the board supplied the minimal force required to satisfy the breaking element even though the window itself had not been locked.
After dark, Dana Delgado approached the rear door of the vacant cottage. Finding it closed but unlocked, she turned the knob and pushed the door open with slight pressure. The minimal force used to open the closed door satisfied the breaking element under the common-law rule.
Select any source to read its text and confirm it supports the definition.
Bruce Baldwin told the homeowner he was a licensed plumber responding to an emergency call. Once inside the dwelling he began searching for valuables. The false pretense supplied the constructive breaking even though no physical force was used on any door or window.
Brenda Booth had permission to enter the garage only between 9 a.m. and 5 p.m. to retrieve tools. She returned at midnight, forced the side door, and entered the attached residence. The time restriction rendered the entry trespassory despite the earlier limited consent.
Belinda Baxter broke the lock on a bedroom closet inside the dwelling and reached inside for jewelry. The forced entry into the separately secured portion of the structure satisfied the breaking requirement even though the outer door to the house had already been open.
Blake Butler hid inside a dwelling during the day intending to steal cash after dark. When he later broke a window to leave, the breaking did not facilitate entry and therefore could not support a burglary charge.
Yes. Actual breaking requires only some force to gain entry, and even minimal force suffices. Opening a closed but unlocked door constitutes a breaking under the common-law rule.
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Consent defeats breaking only if it is unlimited in time and scope. Consent limited to certain hours or portions of a structure does not authorize forcible entry at other times or into separately secured areas.
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No. The breaking must produce entry into the dwelling itself or a separately secured portion of it. Breaking into a container located within the dwelling does not meet the requirement.
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No. The breaking must facilitate the defendant's entry into the dwelling. A breaking performed solely to exit, even after the defendant has hidden inside with felonious intent, does not satisfy the element.
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…on the part of the government and its employes of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and…