Breaking and Entering in Massachusetts (M.G.L. c. 266, §§ 14 through 18A)

Chapter 266 defines several related breaking and entering offenses. The elements that the Commonwealth must prove, the available defenses, and the possible sentence depend on the section charged. Two cases with nearly identical facts can be charged under different sections because of the hour, the kind of structure entered, whether anyone was inside, whether a weapon was involved, and what the person intended to do once inside.

The outcome of most breaking and entering cases depends on what the person intended to do once inside. A person accused of entering a building intending to take property faces a felony charge. A person accused of entering the same building intending to commit a misdemeanor faces a maximum sentence of six months under a different section. The accusation often looks the same in the police report.

Attorney Joe Serpa has practiced Massachusetts criminal defense since 1995 and defends these charges in the District Courts, the Boston Municipal Court, and the Superior Courts.

The Offenses Chapter 266 Defines

Armed Burglary: M.G.L. c. 266, § 14

Section 14 defines armed burglary. Section 14 applies where a person breaks and enters a dwelling house in the night time with intent to commit a felony, or, having entered with that intent, breaks the dwelling house in the night time. Under either alternative, the breaking or entry must occur while any person is then lawfully inside. The offender must also either be armed with a dangerous weapon at the time of the breaking or entry, arm himself in the house, or make an actual assault on a person lawfully inside.

Section 14 is punishable by imprisonment in the state prison for life or for any term of not less than ten years. The ten-year term is the shortest state prison sentence the statute allows, not the longest. A judge may impose a life sentence in any case charged under this section.

Section 14 requires imprisonment in the state prison for life or for any term of years, but not less than 15 years, where the weapon is a firearm as defined in M.G.L. c. 140, § 121. A subsequent offense involving a firearm is punishable by a state prison minimum of twenty years. A judge may not suspend a sentence imposed for a subsequent offense under Section 14 or place the person on probation.

Unarmed Burglary: M.G.L. c. 266, § 15

Section 15 covers the same nighttime dwelling house conduct with the same intent, where the offender was not armed, did not arm himself in the house, and did not assault a person lawfully inside. Section 15 is punishable by imprisonment in the state prison for not more than twenty years, and not less than five years where the person has a prior conviction of a crime named in Section 14 or Section 15.

Breaking and Entering at Night With Felony Intent: M.G.L. c. 266, § 16

Section 16 applies where a person, in the night time, breaks and enters a building, ship, vessel, or vehicle with intent to commit a felony. Section 16 also covers both the attempt and the completed act of breaking, burning, blowing up, or otherwise injuring or destroying a safe, vault, or other depository of money, bonds, or other valuables in any building, vehicle, or place. The person must act with intent to commit a larceny or felony, whether or not the larceny or felony succeeds.

Section 16 is punishable by imprisonment in the state prison for not more than twenty years, or in a jail or house of correction for not more than two and one half years. At sentencing, the judge may impose either a state prison sentence or a jail or house of correction sentence on the same conviction.

Proving the Nighttime Element

Nighttime is a defined statutory period rather than a reference to darkness. M.G.L. c. 278, § 10 applies where a crime is alleged to have been committed in the night time. Under that statute, night time is the time between one hour after sunset on one day and one hour before sunrise on the next day. The time of sunset and sunrise is ascertained according to mean time in the place where the crime was committed. Commonwealth v. Swahn, 5 Mass. App. Ct. 642, 645 to 648 (1977).

The Commonwealth must prove that the offense occurred during the statutory night time period. The defense can contest the nighttime element where the timing is uncertain on the evidence. Direct evidence of the time of the break-in is not required. Commonwealth v. Bennett, 424 Mass. 64, 67 to 69 (1997).

Jurors may apply what is commonly known in the community, including the time of sunset or sunrise at a particular time of year. Commonwealth v. Kingsbury, 378 Mass. 751, 754 (1979). Circumstantial evidence may therefore support a finding of a nighttime breaking beyond a reasonable doubt. Commonwealth v. Turner, 28 Mass. App. Ct. 909 (1989).

The section charged depends on the hour. Without proof by the Commonwealth that the entry occurred during the statutory night time period, the facts support a different offense from the one charged in the complaint.

Breaking and Entering With Intent to Commit a Misdemeanor: M.G.L. c. 266, § 16A

Section 16A applies in the nighttime or the daytime, to a building, ship, vessel, or vehicle, where the intent was to commit a misdemeanor rather than a felony. Section 16A is punishable by a fine of not more than two hundred dollars, or by imprisonment for not more than six months, or both.

Section 16A is frequently the section that matches the facts when the evidence of felony intent is weak. Defense counsel therefore addresses the intent element from the first court date rather than at trial.

Night Entry Without Breaking, and Daytime Breaking and Entering: M.G.L. c. 266, §§ 17 and 18

Section 17 covers the following two acts, each with intent to commit a felony.

• entering a building, ship, vessel, or vehicle in the night time without breaking.
• breaking and entering in the day time.

Section 18 covers daytime breaking and entering of a building, ship, motor vehicle, or vessel, but Section 18 covers entry without breaking in the night time only when the structure entered is a dwelling house. The two sections also differ on whether a person lawfully inside was put in fear.

Section 17 applies where the owner or another person lawfully inside was put in fear. Section 17 is punishable by imprisonment in the state prison for not more than ten years.

Section 18 applies where no person lawfully inside was put in fear. Section 18 also covers entering a dwelling house at night without breaking. Section 18 is punishable by imprisonment in the state prison for not more than ten years, or by a fine of not more than five hundred dollars and imprisonment in jail for not more than two years.

Both sections contain the same firearm provision. The firearm provision covers any offense described in either section that a person commits while armed with a firearm as defined in M.G.L. c. 140, § 121. Such an offense is punishable by imprisonment in the state prison for not less than 7 years, or in the house of correction for not less than 2 years nor more than two and one half years.

Entering a Dwelling House by False Pretenses: M.G.L. c. 266, § 18A

Section 18A applies where a person enters a dwelling house by false pretenses, without breaking, with intent to commit a felony and no person lawfully inside is put in fear. Section 18A also applies where a person enters a dwelling house by false pretenses without breaking and, after entering, commits a larceny as defined by Section 30, with no person lawfully inside put in fear.

Section 18A is punishable by imprisonment in state prison for not more than ten years, or by a fine of not more than $5,000 and imprisonment in a house of correction for not more than two years, or by both.

Section 18A applies to a person who gained entry to a dwelling house by deceiving the occupant. The Commonwealth may charge Section 18A as an alternative to a constructive breaking theory.

The Element of Breaking

A breaking may be actual or constructive. Physical force is not required in every case.

Actual Breaking

A breaking does not require damage. Any physical act, however slight, that removes an obstacle to entry satisfies the element. Opening a closed but unlocked door, raising an unlocked window, or removing a screen is a breaking. Commonwealth v. Tilley, 355 Mass. 507, 509 (1969). Commonwealth v. Hall, 48 Mass. App. Ct. 727, 730 to 731 (2000).

A person who walks through a door or window that was already open, without moving any barrier, has not committed a breaking. A charge under Section 16 or Section 18 can fail if the Commonwealth cannot prove a breaking. The question often depends on what a responding officer observed about the door or window, not on what a witness later recalled.

A person who enters a building without a breaking can still be charged with trespass under M.G.L. c. 266, § 120. In a trespass case, the Commonwealth must prove that the owner or another person in lawful control of the building forbade entry, directly or by a posted sign, or ordered the defendant to leave and the defendant refused.

Constructive Breaking

The statutory term “breaks” retains its common law meaning. The common law meaning includes entry obtained through trickery, false pretense, or subterfuge. Commonwealth v. Labare, 11 Mass. App. Ct. 370, 374 to 378 (1981).

A defendant may therefore satisfy the breaking element even where the occupant physically opened the door, if the defendant deliberately induced that opening by deception. Compelling another person to open a closed door in order to gain entry, whether by agreement, trickery, force, or fear, satisfies the element. Commonwealth v. Lockwood, 95 Mass. App. Ct. 189 (2019). An actual physical breaking was not invariably required even at common law, where a breaking could be established in fact or by implication. Commonwealth v. Cextary, 68 Mass. App. Ct. 752 (2007).

Counsel should also consider whether Section 18A states the offense more precisely when the Commonwealth proceeds on a constructive breaking theory involving a dwelling house entered by false pretenses, because the possible sentences differ.

The Element of Entry

Entry is satisfied by the intrusion of any part of the body, or of an instrument used to accomplish the intended offense, into the structure. Entry and breaking are separate elements. The Commonwealth can prove one element and still fail to prove the other.

The Element of Intent

The felony sections require intent to commit a felony inside the structure, formed at the time of the breaking and entry. Larceny of property valued over $1,200 is a felony and is the intent most commonly alleged. Intent to commit an assault and battery, a rape, or another felony also satisfies the element.

The Commonwealth ordinarily proves intent through circumstantial evidence, including the hour, what the person did once inside, what was carried in, what was carried out, which rooms were entered, and what was said. The Commonwealth does not have to prove that the intended felony was completed.

Two further rules govern the intent element. First, presence inside a structure does not by itself establish that a person entered with felony intent, or that the person entered at all in the legal sense. Second, the Commonwealth’s failure to prove felony intent does not convert a case into a Section 16A misdemeanor by operation of law. The Commonwealth must still prove the elements of whatever offense it charges. The availability of a lesser offense depends on the charging decision and on the evidence at trial.

The court that hears the case, the maximum sentence, and many of the collateral consequences depend on the distinction between a Massachusetts felony and a misdemeanor. The intended offense therefore has consequences well beyond the charge itself.

Identification, Participation, and Possession

Identification, participation, and possession are three separate questions. Defense counsel addresses each question separately, because treating them as one question weakens the defense.

Identification is the question whether the person on trial is the person who broke and entered. The defense contests identification by challenging the reliability of eyewitness identification, the quality of surveillance video, and the strength of any forensic comparison.

Participation is the question whether a person who was present is criminally responsible for what another person did. A joint venture theory requires the Commonwealth to prove that the defendant knowingly participated in the offense with the intent required for that offense. Presence at or near a scene, without more, does not establish participation.

Possession of property taken from the structure is proved under the law of actual and constructive possession. Possession is most often litigated in a receiving stolen property charge rather than in the breaking and entering charge itself.

Receiving Stolen Property: M.G.L. c. 266, § 60

The Commonwealth frequently brings a companion charge under Section 60 against a person accused of breaking and entering. Section 60 applies to a person who buys, receives, or aids in the concealment of stolen or embezzled property knowing it to have been stolen or embezzled. The Commonwealth brings the two charges together because property recovered from a person, a vehicle, or a residence is offered both as evidence connecting that person to the entry and as the basis of a separate offense.

The two charges have different elements. Section 60 requires the Commonwealth to prove possession, knowledge that the property was stolen, and the intent the statute specifies. Section 60 does not require proof of an entry. A case can therefore end in an acquittal on the breaking and entering and a conviction on the receiving count, or the reverse, because each count requires different evidence. Counsel should treat the two counts as separate questions with separate proof.

The penalty depends on the value of the property and on whether the person has a prior conviction. For a first offense involving property valued at not more than $1,200, the authorized punishment is imprisonment in the house of correction for not more than two and one half years, or a fine of not more than $3,000.

For property valued at more than $1,200, or for a repeat offense, the authorized punishment is up to two and one half years in the house of correction or up to five years in the state prison. The authorized punishment also includes a fine of not more than $5,000, alone or with imprisonment. The defense can therefore contest the alleged value as a separate issue.

Search and Seizure Issues

Police usually obtain the physical evidence in breaking and entering cases through a vehicle stop, a search of a residence, a search of a person, or a search of a phone. A judge’s decision whether to suppress the evidence depends on the facts of the specific search.

A warrantless search is not automatically unlawful. The Fourth Amendment and Article 14 of the Massachusetts Declaration of Rights require a warrant supported by probable cause, subject to established exceptions including consent, exigent circumstances, a search incident to a lawful arrest, and the automobile exception. On a motion to suppress, the judge decides whether the Commonwealth has established that the search fell within one of those exceptions.

The judge first decides whether the defendant has standing to challenge the search. A person who cannot establish a reasonable expectation of privacy in the place searched may be unable to challenge the search at all. Massachusetts law on automatic standing in possessory offenses differs from federal law. Counsel should analyze standing before drafting the motion.

The governing standards are set out at illegal searches and seizures in Massachusetts. A search of a phone or a computer requires its own warrant and its own particularity analysis. The rules for those searches are covered at Massachusetts phone and computer searches.

Statements to police are a separate question. The admissibility of anything a person said to police depends on custody, warnings, and voluntariness. The governing rules are set out at your right to remain silent in Massachusetts.

What the Defense Reviews

• The point of entry. Photographs and the responding officer’s description of the door, window, screen, or lock, measured against the physical act the Commonwealth must prove.
• The intended offense. What the Commonwealth says the person meant to do inside, and whether the evidence supports a felony intent or something less.
• Surveillance video. Camera positions, coverage gaps, timestamps, resolution, and retention periods, which are short and frequently expire before a request is made.
• Fingerprint and DNA comparison. The examiner’s qualifications, the methodology, the documentation of the comparison, and the significance of a print on a movable object or an exterior surface.
• Digital evidence. Location data, messages, and device activity, and whether each item was lawfully obtained and can be admitted over objection.
• Identification evidence. Viewing conditions, the identification procedure used, and the cross-examination that tests it.
• Statements. What was said, to whom, when, and whether it is admissible.
• Alleged joint participation. What the Commonwealth attributes to the client as opposed to another person present.

Attorney Serpa begins his review of a breaking and entering case with the physical evidence rather than the police narrative, because police write the narrative after they have drawn their conclusions.

Expert and Identification Evidence

The Reliability Standard for Forensic Evidence

Massachusetts courts apply the Daubert-Lanigan framework to scientific, technical, and other specialized expert evidence. General acceptance in the relevant field can establish reliability, but a novel application of an otherwise accepted theory or methodology requires an independent reliability inquiry.

Counsel should apply the distinction between general acceptance and a novel application to each count separately. In Commonwealth v. Patterson, 445 Mass. 626 (2005), the Supreme Judicial Court confirmed that general acceptance of latent fingerprint identification and of the ACE-V method does not by itself establish the reliability of every distinct application of that method. The Commonwealth must demonstrate reliability for the particular application it offers. Forensic evidence is not categorically admissible because the underlying discipline is familiar. The defense can challenge the specific comparison performed in the specific case.

In-Court Identification

An in-court showup identification is admissible only on a showing of good reason where an eyewitness made less than an unequivocal positive identification in a nonsuggestive pretrial procedure. The Commonwealth bears the burden of seeking admission of the in-court identification by motion in limine. Commonwealth v. Collins, 470 Mass. 255 (2014).

The good reason requirement addresses a specific risk. The courtroom setting itself suggests to the witness which person is the defendant. Confirmatory feedback between the first identification and the trial can also increase a witness’s apparent confidence without improving accuracy. Cross-examination alone may not correct those effects. The judge therefore decides whether the in-court identification is admissible before the witness testifies, rather than leaving the question to the jury afterward.

How These Cases Begin

A show cause hearing before a clerk-magistrate is available at the option of the police department rather than as of right where a felony section is charged. Many breaking and entering cases begin with an arrest and proceed directly to arraignment.

The accused ordinarily has a statutory right to a clerk-magistrate hearing before a complaint issues on an application that alleges only the Section 16A misdemeanor. The right exists where the person did not commit the offense in an officer’s presence and no arrest was made. A clerk-magistrate’s denial of the application at that stage means that no complaint issues and no arraignment occurs. The denial does not erase a police or arrest record.

The dispositions available after a complaint issues, including a continuance without a finding and pretrial probation, are compared at CWOF, pretrial probation, and diversion. The grounds on which a case can be dismissed before trial are set out separately.

Record and Collateral Consequences

CORI. The charge appears in a Massachusetts criminal record at arraignment. A standard CORI report, which most employers and landlords receive, does not include a dismissed case or a not guilty finding. The question whether and when a disposition can be sealed depends on the disposition and on the governing waiting period, which differs for a conviction, a continuance without a finding, and a dismissal. The eligibility rules are set out at sealing and expunging a Massachusetts criminal record. Sealing and expungement are separate remedies with separate standards. A record eligible for one remedy is frequently not eligible for the other.

Professional licensing. Reporting duties depend on the profession, the board, and the wording of the question asked. Some boards require disclosure of a charge, some of a conviction, and some of a disposition that is not a conviction. The rules by profession are set out at Massachusetts criminal charges and professional licenses. The person charged should answer each licensing question according to the governing rule rather than by assumption.

Immigration. The question whether a breaking and entering disposition has immigration consequences depends on the section charged, the intended offense, the sentence imposed, and the person’s status. A burglary offense with a sentence of one year or more may be treated as an aggravated felony. An offense involving an intended theft or fraud may be analyzed as a crime involving moral turpitude. The charge alone does not establish either classification. Immigration counsel should conduct the immigration analysis using the exact disposition and sentence. The framework is described at immigration consequences of Massachusetts criminal charges.

Students. A university ordinarily begins a parallel disciplinary process when a student is charged with an offense arising on or near a campus. The university process has its own schedule and its own standard of evidence, as explained at college and university student criminal defense.

Related theft charges. The elements and value thresholds that apply when the intended or completed offense was a theft are set out at Massachusetts shoplifting and larceny defense.

Frequently Asked Questions About Breaking and Entering in Massachusetts

Summary of the Breaking and Entering Sections

The outcome of a breaking and entering case depends on the section charged. A breaking and entering accusation is not one offense with one penalty. The Commonwealth may bring the charge under Section 14, 15, 16, 16A, 17, 18, or 18A. The section charged depends on the hour, the structure, who was inside, whether anyone was put in fear, whether a weapon was present, and what the Commonwealth says the person intended. The defense can contest each of those facts.

Contact Serpa Law Office at 617.936.0201 for a confidential consultation. Boston office: 20 Park Plaza #400A. Quincy Office: 500 Victory Road, Suite 400A.