The criminal act element required for burglary varies, depending on the jurisdiction. Many jurisdictions require breaking and entering into the area described in the burglary statute. 1 Some jurisdictions and the Model Penal Code only require entering (Model Penal Code § 221.1). Other jurisdictions include remaining in the criminal act element. 2 When criminal breaking is required, generally any physical force used to enter the burglarized area is sufficient—even pushing open a closed door. 3 Entry is generally partial or complete intrusion of either the defendant, the defendant’s body part, or a tool or instrument. 4 In some jurisdictions, the entry must be unauthorized, 5 while in others, it could be lawful. 6 The Model Penal Code makes an exception for “premises…open to the public” or when the defendant is “licensed or privileged to enter” (Model Penal Code § 221.1(1)). Remaining means that the defendant lingers in the burglarized area after an initial lawful or unlawful entry. 7
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