Article 221 — Burglary and Other Criminal Intrusion

MPC § 221.1: Burglary

Quick Answer

What does Burglary (Model Penal Code) provide?

Section 221.1 defines burglary under the MPC. A person is guilty of burglary, a felony of the second degree, if they enter a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. Burglary is a felony of the third degree if it is not perpetrated in a dwelling at night.

Source: Model Penal Code § 221.1

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Summary

The MPC significantly modernizes common law burglary while narrowing it in some respects. It eliminates the common law requirement of "breaking" — any entry with criminal purpose suffices. It broadens the target from dwelling houses to any building or occupied structure. It drops the nighttime requirement as an element of the offense (though nighttime commission of burglary in a dwelling elevates the grading). And it focuses the mental state on purpose to commit "a crime" therein, rather than common law's requirement of intent to commit a felony.

However, the MPC also limits burglary by excluding entries into premises that are open to the public or where the actor is licensed or privileged to enter. Under common law, a person who entered a store during business hours with intent to shoplift could potentially be charged with burglary; under the MPC, this would not constitute burglary because the premises were open to the public. This reflects the MPC drafters' view that burglary's special danger lies in the intrusion into private spaces, not merely entering any structure with criminal intent.

Key Provisions

5 essential provisions of § 221.1

Entry into a building or occupied structure with purpose to commit a crime therein

No breaking required — any unprivileged entry suffices

Excludes entry into premises open to the public or where actor is licensed to enter

Second-degree felony generally; third-degree felony if not a dwelling at night

"Occupied structure" defined broadly to include any structure adapted for overnight accommodation or carrying on business

MPC vs. Common Law

How the MPC approach to burglary differs from common law

Common law burglary was defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein. Every element has been modified by the MPC. Breaking is eliminated (the MPC requires only entry). The dwelling house requirement is expanded to any building or occupied structure. The "of another" requirement is implicitly retained through the exclusion of licensed entry. The nighttime requirement is removed as an element (though it affects grading). And the intent to commit a felony is broadened to purpose to commit any crime. These changes reflect the reality that the dangers addressed by burglary — invasion of protected spaces and potential confrontation with occupants — are not limited to nighttime break-ins of homes. The MPC's exclusion of public premises is a narrowing not found in many common law or modern statutory formulations.

Exam Relevance

How § 221.1 appears on criminal law exams

Burglary appears on exams both as a standalone crime and in the felony murder context. Key issues: (1) Whether the defendant "entered" a structure — the MPC does not require breaking, just unprivileged entry; (2) Whether the premises were open to the public — a shoplifter who enters during business hours is not a burglar under the MPC; (3) Whether the defendant had purpose to commit a crime at the time of entry — this is a specific intent/purpose requirement, so intoxication and mistake may be relevant; (4) Grading — was it a dwelling? At night? (5) For felony murder, burglary is an enumerated felony under Section 210.2 that triggers the presumption of extreme recklessness. Students should always compare MPC and common law burglary on exams and note the significant differences in elements.