Breaking & Entering vs Trespassing – What’s the difference?

Breaking and entering and trespassing are similar but distinct crimes.

• Breaking and entering involves the use of force, however slight, to gain entry into a building or residence.
• Trespass only requires an unauthorized entry onto someone else’s property, with or without forced entry.

In most states, there also has to be an intent to commit a crime for it to be breaking and entering. The penalties are also different.

What is the crime of breaking and entering?

Generally, breaking and entering is the crime of

1. using force or fraud to gain access to a building, and then
2. entering it in order to commit a crime.

Breaking and entering is sometimes referred to as “B&E.”

Some states have criminal laws that forbid breaking and entering, specifically. Each state may define the crime slightly differently.

Other states, like New York and California, do not have criminal laws that specifically prohibit breaking and entering. Instead, these states cover the act with other criminal statutes, such as burglary.

To add even more complexity, in some states, burglary only requires entering a building. The act of breaking into it is no longer necessary. California is one of these states.¹ The wide variation in state laws makes it important to discuss your particular case with a local criminal defense lawyer.

What is the crime of trespassing?

Trespassing is the crime of entering or remaining on someone else’s property without permission or a right to do so.

In California, the elements of the crime of trespassing are:

• you willfully entered someone else’s property,
• you had the specific intent to interfere with the other person’s property rights, and
• you did actually interfere with those property rights.²

The prosecutor has to prove each of these elements beyond a reasonable doubt.

What are the differences between the two?

Generally, breaking and entering is different from trespassing in 3 ways:

1. breaking and entering requires the use of force or fraud,
2. trespassing can happen anywhere, while B&E can only happen in a building, and
3. there has to be an intent to commit a crime for it to be breaking & entering.

These differences can be very slight and nuanced. Additionally, different states can have different definitions of breaking and entering. However, the differences can turn a relatively minor offense of trespassing into a more serious property crime. An experienced criminal defense attorney can help fight the criminal charge.

Force or fraud

Perhaps the most important difference between trespassing and breaking and entering is the use of force to gain entry. Cases of trespass, even criminal trespass, do not require the use of force or fraud. In many states, breaking and entering does. The amount of force required to gain entry, though, does not have to be great for it to become B&E. It can even be negligible.

In one state that has a breaking and entering law, Indiana, the following cases had sufficient force to be considered a breaking and entering:

• gaining access to a store through an unlocked door,³ and
• further opening a door that is already slightly ajar.⁴

However, it is generally not considered to be breaking and entering when you enter without using force because there was already an opening.

For example: Steven reaches through an open car window and steals a tape cassette player.⁵

Some states, like California, have burglary laws that cover conduct that used to be considered breaking and entering. Many of these laws have done away with the need for force.⁶ In these states, simply entering the premises to commit a crime is enough.

Breaking and entering can also be done through fraud, rather than through force. Coercing or tricking someone into allowing you to enter does not make the entry a lawful one.

For example: David walks up to a house and rings the doorbell. He asks to be let inside to use the phone because his car broke down. Once inside, he attacks the occupant and steals money. He is convicted of burglary for breaking into and entering the home.⁷

Buildings

While trespassing can happen anywhere on someone else’s property, breaking and entering generally has to involve a building. In some states, it has to be a residence or dwelling.

The reason for this difference is that the law of breaking and entering is designed to protect people. Trespassing is just to keep others from intruding on property. Therefore, courts have required that the building or structure be large enough to accommodate a person,⁸ and could actually be lived in.⁹ However, the property owner does not have to be inside at the time of the offense for it to be breaking and entering.¹⁰

Intent to commit a crime

The crime of breaking and entering generally requires an intent to commit another crime – usually robbery, theft, or arson. Trespassing does not.

This intent to commit a crime has to exist at the time of the breaking and entering.¹¹ However, it only has to be an intent to commit the crime. It is not a defense that the intended crime was never committed.

Some states require the crime to be a felony offense. Many other states, including California, require an intent to commit a felony or a theft or larceny crime while inside. In other states, the intent to commit any crime will do.

What are the penalties for a conviction?

Because breaking and entering is a more severe type of criminal offense than mere trespassing, the penalties of a conviction are also higher.

• Breaking and entering is often a felony.
• Trespassing is usually a misdemeanor.
• In California, for example, the crime of entering a structure or vehicle with the intent to commit a felony or theft is considered burglary.¹²

First-degree burglary is any burglary of a residence. It is always a felony offense. Convictions come with:

• up to $10,000 in fines,
• a 2, 4, or 6 year prison sentence in a California state prison, and/or
• a “strike” on your criminal record under California’s Three Strikes law.¹³

Second-degree burglary in California is the crime of burglary involving any building that is not a residence. In California, these burglary charges are wobblers. Prosecutors can pursue either misdemeanor or felony charges.

If pursued as a felony, convictions carry up to:

• $10,000 in fines, and/or
• 16 months, 2 years, or 3 years of jail time in county jail.¹⁴

If pursued as a misdemeanor, convictions carry up to:

• $1,000 in fines, and/or
• 1 year in county jail.¹⁵

The penalties for trespassing in California are lower. Most trespassing cases in the state are simple misdemeanors. Convictions carry up to:

• 6 months in county jail, and/or
• $1,000 in fines.¹⁶

In certain, rare cases, trespassing carries higher penalties in California. Some examples are:

• refusing to leave a domestic violence shelter for battered women after being asked to do so,¹⁷ and
• aggravated trespass, or entering someone else’s property after making a credible threat to their safety.¹⁸

Whether charged with trespass or breaking and entering, you should strongly consider establishing an attorney-client relationship with a criminal defense lawyer from a reputable law firm and getting legal advice on how to proceed.

Additional reading

For more in-depth information, refer to the following scholarly articles:

• Trespass, Crime and other Offenses a Venue Exception – Baylor Law Review.
• Trespass-Zoning: Ensuring Neighborhoods a Safer Future by Excluding Those with a Criminal Past – Notre Dame Law Review.
• Private Property and Public Order: The Hippy Convoy and Criminal Trespass – Journal of Law and Society.
• From the Thief in the Night to the Guest Who Stayed Too Long: The Evolution of Burglary in the Shadow of the Common Law – Indiana Law Review.
• Burglary – Crime & Justice article about the current state of burglary laws.

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