"Breaking" and entering: forcible entry required?

[RR_Security]

This post is to get some more answers on something I asked yesterday in the Maine section. In your jurisdiction, does breaking and entering refer only to forced entry or use of burglary tools, or can it be as simple as opening a door and "enter(ing) or surreptitiously remain(ing) in a place where the actor "is not licensed or privileged to do so"? (Parts in quotes are from the Maine statute on burglary.)

As a little background on the incident, it doesn't involve a structure as defined in the Maine Criminal Code, so it's not a burglary. The place that was entered isn't a motor vehicle, so that section doesn't apply, either. I think there'd be PC under another law, but that would depend on the definition of "breaks and enters."

The way I see it, if they have to bypass any barrier, no matter if they kick it in or just try the latch and find it's unlocked, it's a "break." Defense attorneys and some other people might disagree with me.

I know it'd come down to what a judge in Maine says it means, but if anyone here agrees with what I put in bold text above, I'd feel so much bettah.

If anyone answers this one, I'll provide more details on the case.

[PhilipCal]

Alabama's Burglary statute makes no requirement that a "breaking" or any forced entry take place. Merely entering or remaining in a building with the intent to commit ANY crime therein constitutes Burglary in this state. There are degrees of Burglary with that of a residence being the most serious, but none of the degrees require any forced entry.

[FJDave]

Here in Calif it is simply burglary. If you are talking about buildings, then all you need to do is enter the structure with the intent to commit petty theft, grand theft, or any felony, and you are guilty of burglary.

If you are talking about a vehicle, the vehicle needs to be secured/locked. Funny thing....if you have a convertible, your vehicle is not considered "burglarized" even with the doors locked. The courts simply charge "theft from vehicle" and "vandalism" for cutting the top to get in.

[RR_Security]

Thanks for the fast replies. Yeah, I just glanced over the thread somebody else started awhile back about "B&E and...", and saw all the replies mentioning intent. I don't think we could show intent to commit a crime (although I don't know yet if any damage was done. etc.), but the offense I'd charge 'em for doesn't mention intent. (I like that. )

Earlier today, I discovered the phrase "inchoate crime." I think burglary (or whatever it's called) could qualify, but I didn't spend too much time researching that. It made my head hurt.

[RR_Security]

Background: A couple of eejits were seen inside one of our passenger cars at around 0200 one morning. They were not doing "early boarding," and probably didn't even have tickets for a train ride.
The car is equipped with "traps" so just the doors can be opened for embarking/disembarking passengers at a high-level platform, or stairs can be lowered for ground-level use. Eejits opened the trap and went inside the car. Eejits were detected and removed from the car by local PD, but were not charged with anything because the PD didn't know what to charge them with. I understand why they couldn't charge the eejits with much of anything under Title 17-A.

I don't expect every officer to know every law. I know how little I really know about the law in general, but if it's got the word "railroad" in it, I probably do know what it says and where to find it.
This might seem like "cherry picking" to support my position, but this is what I think applies: "Whoever willfully... breaks and enters any railroad car... shall be punished by a fine of not more than $500 or by imprisonment for not more than 2 years, and shall be liable to the corporation injured in a civil action for the amount of injury so done." There was no "intent" evident or alleged (or required, if I'm reading it right). There was no "injury" (theft or damage) done, that I'm aware of yet, but I don't believe that's a necessary element, either. I think it all comes down to "breaks and enters."
If anyone wants to read the entire section I'm quoting from, it's here: Title 17 MRSA §2401. Tampering with railroad car.

Am I right?

[L-1]

My uneducated guess says the car needed to have been equipped with a locking mechanism of some sort that was bypassed by any means in order to constitute breaking.

However, my uneducated guess does not count. What does count is case law from your state. You need to find your nearest law library (there is probably one in your county prosecutor's office). In it, you should find either West's Annotated Codes or Deering's Annotated Codes. If you are not familiar with them, they are your state's law books but after each state law, there are brief case decision summaries telling you how the courts have interpreted the meaning of that law in the past. They also contain case references so you can look up and read about each case in its entirety.

If you ask nicely and explain what you are looking for, most prosecutors have no problems letting cops peruse their law libraries to do professional research.

[RR_Security]

I don't believe I've heard of those annotated codes before. Thanks for the info.

I love it when I learn something new without causing any damage in the process of learning it.

[Resq14]

There is no "B&E" in Maine... it's just burglary. Other things such as weapons and dwelling/non-dwelling affect severity. With respect to burglary to motor vehicles, doing damage does elevate it to a felony.

As far as the RR car goes... Criminal Trespass is what I'd go with as a street cop's initial charge to solve the problem. Just being on the RR property they're trespassing. Not a felony level charge, but it's something.

"Enters any place from which that person may lawfully be excluded and that is posted in accordance with subsection 4 or in a manner reasonably likely to come to the attention of intruders or that is fenced or otherwise enclosed in a manner designed to exclude intruders.

If damage was done, Criminal Mischief too.

[RR_Security]

Yeah, no signs, so no foul. The surrounding area is pretty much a public area, between two parking lots. There's another civil violation in Title 23 about loitering around a station, but they have to be "requested to leave" first.

So unless "breaks" includes going around, over, under, or through any physical barrier, I guess there's nothing much to do except tell 'em "don't come around here no more."
I think most people would refrain from opening a door and just wandering into someplace at 2 AM, but there's always that certain percentage who didn't get the memo.

Thanks for the input.

[Iowa #1603]

Iowa doesn't have a B& E statute Instead Burglary is defined .

Burglary 1st and 2nd talk about occupied STRUCTURES (occupied or not) whereas Burglary 3rd talks about vehicles

http://coolice.legis.iowa.gov/cool-ice/default.asp?category=billinfo&service=iowacode&ga=83&input=713

713.1 BURGLARY DEFINED.
Any person, having the intent to commit a felony, assault or theft
therein, who, having no right, license or privilege to do so, enters
an occupied structure, such occupied structure not being open to the
public, or who remains therein after it is closed to the public or
after the person's right, license or privilege to be there has
expired, or any person having such intent who breaks an occupied
structure, commits burglary

713.3 BURGLARY IN THE FIRST DEGREE.
1. A person commits burglary in the first degree if, while
perpetrating a burglary in or upon an occupied structure in which one
or more persons are present, any of the following circumstances
apply:
a. The person has possession of an explosive or incendiary
device or material.
b. The person has possession of a dangerous weapon.
c. The person intentionally or recklessly inflicts bodily
injury on any person.
d. The person performs or participates in a sex act with any
person which would constitute sexual abuse under section 709.1.
2. Burglary in the first degree is a class "B" felony.

713.5 BURGLARY IN THE SECOND DEGREE.
A person commits burglary in the second degree in either of the
following circumstances:
1. While perpetrating a burglary in or upon an occupied structure
in which no persons are present, the person has possession of an
explosive or incendiary device or material, or a dangerous weapon, or
a bodily injury results to any person.
2. While perpetrating a burglary in or upon an occupied structure
in which one or more persons are present, the person does not have
possession of an explosive or incendiary device or material, nor a
dangerous weapon, and no bodily injury is caused to any person.
Burglary in the second degree is a class "C" felony.

713.6A BURGLARY IN THE THIRD DEGREE.
1. All burglary which is not burglary in the first degree or
burglary in the second degree is burglary in the third degree.
Burglary in the third degree is a class "D" felony, except as
provided in subsection 2.
2. Burglary in the third degree involving a burglary of an
unoccupied motor vehicle or motor truck as defined in section 321.1,
or a vessel defined in section 462A.2, is an aggravated misdemeanor
for a first offense. A second or subsequent conviction under this
subsection is punishable under subsection 1.

[RR_Security]

Wow, you gotta do a checklist for what the burglar did before, during, and after, so you know just what to charge him with.

The way it mentions "breaks" in the last sentence of the definition makes me think it means just being inside the premises without a right to be there is a big factor, but that might just be wishful thinking.

Guess I better "call up the D.A. man."

[Chomp]

Iowa doesn't have a B& E statute Instead Burglary is defined.

Same for us in Nevada. We also have Home Invasion, which requires damage to the structure. Home Invasion sounds sexy but Burglary has more teeth.

[RR_Security]

I think it's always been called burglary in Maine, too, including back when everything was in Title 17, Crimes. Much of that title has been repealed, including all of Chapter 31, which was Burglary. There are still a few nuggets remaining in Title 17, but I think they'd come under the heading of "esoteric," as in that §2401 that I'm still hoping could apply. That was the only place in the statutes that I could find "breaks" used with "and enters."

Now Title 17-A, Maine Criminal Code, lumps burglary and criminal trespass into Chapter 17. The only place "breaking" appears that's anywhere near relevant is under Possession or transfer of burglar's tools: "any tool, implement, instrument or other article that is adapted, designed or commonly used for advancing or facilitating crimes involving unlawful entry into property or crimes involving forcible breaking of safes or other containers or depositories of property."
Hmm; that might mean there's forcible breaking, and then there's just plain surreptitious breaking. I like it.

[Resq14]

Yeah, no signs, so no foul. The surrounding area is pretty much a public area, between two parking lots. There's another civil violation in Title 23 about loitering around a station, but they have to be "requested to leave" first.

So unless "breaks" includes going around, over, under, or through any physical barrier, I guess there's nothing much to do except tell 'em "don't come around here no more."
I think most people would refrain from opening a door and just wandering into someplace at 2 AM, but there's always that certain percentage who didn't get the memo.

Thanks for the input.

I read "or" to negate the need for signage if it is enclosed to prevent intruders...

[RR_Security]

Okay, I see what you mean: "enclosed" as in "that door (trap) is shut for a reason!" I've been thinking of Sec. 402 as "posted... or fenced" for so long that I forgot about the rest of it.

That works for me, but the officer who caught 'em might not have thought it was applicable.