burglary

Imagine the following scenario: your son or daughter is visiting his grandparents’ home somewhere in Arizona for an extended period of time. When your child returns to you early, the grandparents inform you that they no longer want anything to do with your child because they caught him or her “red-handed” trying to steal money or jewelry from them during his or her stay. They want to press charges against your child and are furious that you raised such a deceitful child. A few weeks go by before you and your child receive notice that your child has been charged with burglarizing his or her grandparents’ home.

A Burglary Charge May Not Be Appropriate Under These Facts

Parents caught in this situation will generally handle the matter in one of two ways: either the parent will vehemently deny that his or her child could do anything wrong, or the parent will tell the child he or she must “fess up” and take responsibility for his or her actions. As well-intentioned as either course of action might be, both of these proposed “solutions” to the criminal charges may be inappropriate under the facts of the hypothetical provided.

In Arizona, “burglary” occurs when a person unlawfully enters into or remains in a building or residence with a certain criminal intent. Notice the italicized word above: “unlawfully.” That is to say, an essential element of the crime of burglary requires proof beyond a reasonable doubt that your child did not have the authority to enter into or remain inside the building or residence. Based on the facts given in the hypothetical above, it appears at first blush that your child did have authority or permission to be in the residence: thus, it appears that your child may not be guilty of burglary after all.

What Does “Unlawful” Really Mean?

That one key word – unlawfully – can make all the difference in a burglary case. Entering into or remaining in a place unlawfully generally means without the owner’s authority. Determining whether you have authority or not to enter into or remain on certain property depends on whether the property is public or private in nature and the facts of your case:

  • For private property like homes, storage sheds, and private office buildings not open to the public, you must generally obtain permission from the property owner in order to have lawful access to the property. There is an informal presumption that in such a case, absent evidence to the contrary, you generally do not have permission to be in these places. Written or verbal permission is not always necessary: someone who appears to be the property owner who opens the door for you and waves you to come inside may give you lawful authority to enter into or remain in the property.
  • For public properties like public land and businesses open to the general public, there is an informal presumption that you do have a lawful right to enter into or remain upon these premises unless there is evidence to the contrary. Generally, public property owners will give you a written notice that you are no longer welcome to come onto the property to inform you that you no longer have legal authority to enter into or remain on the premises, but this is not always necessary. A verbal command that you leave the premises and that you are not to return to the premises given by the property owner can be sufficient evidence that you do not have lawful authority to come onto the property in the future.

So to answer the question posed in the title of this post: No, you probably cannot burglarize your own home.  But, if you have been charged with burglary or some other crime in Arizona, it is important to contact a seasoned Arizona criminal defense attorney as soon as possible to preserve your rights.