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"Breaking" and entering: forcible entry required?

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  • RR_Security
    started a topic "Breaking" and entering: forcible entry required?

    "Breaking" and entering: forcible entry required?

    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.

  • RR_Security
    replied
    We're hoping so. Somebody in another office might need convincing, but progress is being made.

    Sometimes the "simplest" things . . .

    Thanks for the input. All these replies make me say "Great Minds Think Alike."

    Leave a comment:


  • just joe
    replied
    Sorry for jumping in late. Sounds like a simple criminal trespassing charge to me.

    Leave a comment:


  • RR_Security
    replied
    Originally posted by jcioccke View Post
    Here "Intent" would be the key. If they were going in and staying in the car to sleep, avoid weather but did not "Intend" to steal anything it would be trespassing (first time)
    After a closer look at Maine's trespassing statute, based on what Resq14 wrote, I think that applies.
    Somebody at an upper level apparently missed the part about "enclosed in a manner designed to exclude intruders," or thinks it means locks and stuff.

    I just got the reply to the inquiry I sent to Augusta last week, and the nice lady pointed out a source I should have used from the beginning: Black's Law Dictionary. One definition of "breaks" in Black's is "to open...and step through illegally."
    Yeah, that.

    When I'm right, I'm right.

    Leave a comment:


  • jcioccke
    replied
    Originally posted by RR_Security View Post
    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?
    Here "Intent" would be the key. If they were going in and staying in the car to sleep, avoid weather but did not "Intend" to steal anything it would be trespassing (first time)

    Leave a comment:


  • RR_Security
    replied
    So far, it looks like for pretty much any enclosed property, the word "breaks" requires no more force than just pushing open a door. Since the statute I was hoping would apply in this case doesn't require intent to commit a crime, I think we got 'em.

    I sent an inquiry to the A.G.'s office last week asking for an opinion about the definition of "breaks," and I should hear something Monday.

    Thanks to all for the replies.

    Leave a comment:


  • JoeyD
    replied
    In Washington DC that would be a Burglary II. Sates railroad car in the definition. Though you since they did not break or carry away any property from within you would need to stipulate a secondary criminal offense to charge Burglary. In this case you would probably charge "Unlawful Entry" a misdemeanor.

    Excerpt from title 22-801

    (b) Except as provided in subsection (a) of this section, whoever shall, either in the night or in the daytime, break and enter, or enter without breaking, any dwelling, bank, store, warehouse, shop, stable, or other building or any apartment or room, whether at the time occupied or not, or any steamboat, canalboat, vessel, or other watercraft, or railroad car, or any yard where any lumber, coal, or other goods or chattels are deposited and kept for the purpose of trade, with intent to break and carry away any part thereof or any fixture or other thing attached to or connected with the same, or to commit any criminal offense, shall be guilty of burglary in the second degree. Burglary in the second degree shall be punished by imprisonment for not less than 2 years nor more than 15 years.
    Last edited by JoeyD; 08-05-2012, 06:28 PM.

    Leave a comment:


  • Viking042900
    replied
    Originally posted by PhilipCal View Post
    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.
    South Carolina's is essentially the same as Alabama's.

    Leave a comment:


  • RR_Security
    replied
    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.

    Leave a comment:


  • Resq14
    replied
    Originally posted by RR_Security View Post
    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...

    Leave a comment:


  • RR_Security
    replied
    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.

    Leave a comment:


  • Chomp
    replied
    Originally posted by Iowa #1603 View Post
    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.

    Leave a comment:


  • RR_Security
    replied
    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."

    Leave a comment:


  • Iowa #1603
    replied
    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-i...a=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.

    Leave a comment:


  • RR_Security
    replied
    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.

    Leave a comment:

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