And To Think the “Hamburglar” Looks So Harmless
As a criminal defense attorney in Arizona I have found that modern burglary statutes are some of the least-understood crimes on the books. Potential clients commonly ask questions like:
But I just wanted to steal something. How can I be guilty of burglary?
But the window was open. Don’t I have to break something to commit burglary?
“But it was just a vehicle. How can I burglarize a vehicle?”
Historically, burglary required proof of two distinct elements: 1) the breaking and entering of a dwelling; and 2) the intent to commit a crime. Thus, at common law, breaking into a home without permission to get out of the weather was considered trespassing. But enter that same home with the intent to steal from or assault the occupants, and the small crime of trespassing instantly snowballed into the felony of burglary.
Arizona’s modern burglary statutes have eliminated the requirement that property be damaged during the entry. “Entering or remaining unlawfully” is now sufficient. And while Arizona burglary still requires that an unlawful entry be coupled with a specific intent to commit a crime or a theft, Arizona (like several other states) has added a non-residential component to the burglary statutes. In Arizona, burglary has been divided into three distinct criminal offenses:
Burglary in the first degree involves the possession of “explosives, a deadly weapon or a dangerous instrument” during the commission of a burglary. A.R.S. § 13-1508.
Burglary in the second degree describes the traditional concept of “entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.” A.R.S. § 13-1507.
Burglary in the third degree goes way beyond the time-honored concepts of entering a home and prohibits the burglary of a “nonresidential structure” or “a fenced commercial or residential yard.” A.R.S. § 13-1506.
Most confusion around Arizona’s burglary statutes concerns what exactly a non-residential structure is. By definition, “any vending machine” or “any vehicle” is expressly declared to be a “non-residential structure”. See A.R.S. § 13-1501(12). So when your teenage son does not have enough money for his afternoon snack attack and he takes a bat to the nearest vending machine, misdemeanor theft is now felony burglary. The Arizona Court of Appeals has also decided that a mailbox is a non-residential structure for purposes of the burglary statutes. See State v. Gill, 235 Ariz. 418, 333 P.3d 36 (2014). In addition, reaching into the open bed of a pick-up truck is not just simple theft: in Arizona, the unsecured bed of a truck is also considered a non-residential structure, and reaching your hand into the bed without permission is an unlawful entry that can give rise to a burglary charge. See State v. Bon, 236 Ariz. 249, 338 P.3d 989 (2014).
Since your teenager can burglarize both your neighbors’ mailbox and their pick-up truck, it is important to understand the severity of a burglary charge. If you teen is ever questioned by the police about any illegal entry, please help him or her invoke their right to silence and call our office immediately to speak with one of our experienced criminal defense attorneys. We are available 24/7 we are here to help.