Definition
Burglary is the unlawful entry into—or remaining inside—a building or structure with the intent to commit a crime once inside, most often theft or another felony. The offense is complete at the moment of unlawful entry with criminal intent; the intended crime need not be carried out and nothing has to be stolen. Definitions and degrees vary considerably by state.
Legal Meaning
At common law, burglary was narrowly defined as "the breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein." Each element mattered: there had to be a breaking, an entering, of a dwelling, belonging to another, at nighttime, with felonious intent. Modern statutes have steadily relaxed almost all of these requirements. Most states have eliminated the "breaking" and "nighttime" elements and expanded the offense beyond dwellings to include commercial buildings, vehicles, and other structures.
Today, the core of burglary is twofold: (1) an unlawful entry into a structure (or unlawfully remaining inside), and (2) the intent to commit a crime inside at the time of entry. The intent is critical. A person who walks into a store intending to shoplift may be committing burglary, whereas a person who enters lawfully and only later decides to steal may be guilty of theft but not burglary in many states. Because the intended crime need not be completed, burglary punishes the dangerous act of intruding into a protected space rather than the success of the underlying scheme.
Burglary is distinct from related crimes against the person. It is a crime against property and the security of a habitation, not a crime requiring confrontation. That distinguishes it from robbery, which always involves taking property directly from a person by force or threat. State codes typically grade burglary into degrees—first-degree (residential or armed) being the most serious—with penalties that escalate based on whether the structure was a home, whether it was occupied, and whether a weapon was used.
Key Points
- Burglary requires unlawful entry into a structure plus intent to commit a crime inside
- The offense is complete at entry—the intended crime need not be carried out
- Nothing has to be stolen for a burglary charge to stand
- Modern statutes have abolished the old "breaking" and "nighttime" requirements
- Burglary covers homes, businesses, and in some states vehicles and other structures
- Residential burglary is usually a more serious felony than commercial burglary
- Weapons, occupancy, and resulting injury can raise the degree and penalty
- Burglary differs from robbery (against a person) and trespassing (no criminal intent)
Real-World Example
Late one evening, Eric pries open a window of a neighbor's house, believing the family is on vacation, and climbs inside intending to take jewelry. A motion sensor alerts the homeowner, and Eric flees before touching anything. Even though Eric took nothing, he can be charged with burglary because he unlawfully entered a dwelling with the intent to commit theft inside. Because the structure was a residence, prosecutors are likely to charge first-degree or residential burglary, a serious felony. Had Eric instead simply wandered onto the property with no criminal intent, he would likely face only a trespassing charge.
How Burglary Compares to Related Crimes
| Crime | Core Conduct | Key Distinction |
|---|---|---|
| Burglary | Unlawful entry with intent to commit a crime inside | No confrontation needed; complete at entry |
| Robbery | Taking property from a person by force or threat | Crime against the person; victim present |
| Larceny / Theft | Unlawfully taking another's property | No entry element; focus on the taking |
| Trespassing | Entering or remaining without permission | No intent to commit a further crime inside |
| Breaking and Entering | Forcing entry into a structure | May lack the specific intent that defines burglary |
Degrees and Penalties
Most states divide burglary into degrees that determine the severity of the penalty:
- First-degree (residential or aggravated): Entry into an occupied dwelling, or entry while armed or causing injury. Treated as a serious felony with substantial prison exposure.
- Second-degree: Often covers unoccupied dwellings or certain commercial structures.
- Third-degree or commercial burglary: Entry into non-residential buildings, sometimes graded as a lower felony.
- Possession of burglary tools: Many states separately criminalize possessing tools (such as lock picks or pry bars) with intent to use them in a burglary.
Because burglary is usually a felony, a conviction can carry years of imprisonment, large fines, and a permanent record. See our pages on felony and misdemeanor classifications to understand how the grading affects sentencing.
Related Terms
Facing a Burglary Charge?
A criminal defense attorney can challenge the evidence of intent and protect your rights
Find Criminal Defense HelpWhen You Need a Lawyer
Burglary is a serious charge, and you should consult a criminal defense attorney immediately. A lawyer can:
- Analyze whether the prosecution can actually prove unlawful entry and criminal intent
- Challenge how the evidence was gathered, including any search of a home or vehicle
- Argue for a reduction to trespassing or another lesser offense where appropriate
- Identify defenses such as consent to enter, lack of intent, or mistaken identity
- Negotiate a favorable plea or prepare a strong defense for trial
If police searched your property as part of the investigation, review our pages on search warrants and probable cause, and explore our criminal defense practice area.
Frequently Asked Questions
What is the difference between burglary and robbery?
Burglary is unlawfully entering a structure with the intent to commit a crime inside, and it is a crime against property and habitation. Robbery is taking property directly from a person by force or threat of force, and it is a crime against the person. Burglary involves no confrontation by definition, while robbery always involves a victim present and the use or threat of force.
Do you have to steal something to be guilty of burglary?
No. Burglary is complete the moment a person unlawfully enters a structure with the intent to commit a crime inside. The intended crime does not have to be carried out, and nothing has to be taken. Even if the burglar leaves empty-handed or is caught immediately after entering, the offense can still be charged.
Is burglary always a felony?
Often, but not always. Burglary of a residence (sometimes called first-degree or residential burglary) is usually a felony, while burglary of a non-residential structure may be a lower-degree felony or, in some states, a misdemeanor. The degree and penalty depend on factors like whether the building was occupied, whether a weapon was involved, and the state's statute.
Does burglary require breaking in?
Under modern statutes, no. The old common-law requirement of "breaking" has largely been abolished. Today, entering through an unlocked door or an open window, or even remaining in a building after permission ends, can satisfy the entry element as long as the entry is unlawful and accompanied by criminal intent.
How does burglary differ from trespassing?
Trespassing is simply entering or remaining on property without permission. Burglary requires that unlawful entry plus the intent to commit a crime inside, such as theft or assault. Without that criminal intent at the time of entry, the conduct is typically only trespassing, which is a far less serious offense.