Breaking and Entering in Massachusetts (M.G.L. c. 266, §§ 15-18)

The Statutes: M.G.L. c. 266, §§ 15-18

Massachusetts breaking and entering law is contained in M.G.L. c. 266, §§ 15 through 18. The statutes distinguish between nighttime and daytime offenses, between dwelling houses and other structures, and between entering with intent to commit a felony and entering for other purposes. The penalty structure varies significantly based on these distinctions. The most serious form of the offense is nighttime breaking and entering of a dwelling house with intent to commit a felony, which Massachusetts courts treat as burglary and which carries up to life imprisonment.

Breaking and Entering at Nighttime: M.G.L. c. 266, § 16

Under Section 16, breaking and entering a building, ship, vessel, or vehicle at nighttime with intent to commit a felony is a felony carrying up to 20 years in state prison. When the building is a dwelling house and is occupied at the time, the offense is punishable by up to life imprisonment. Nighttime is defined as the period between 1 hour after sunset and 1 hour before sunrise.

“Breaking” under Massachusetts law does not require destruction of property. Any act of force, however slight, used to remove a barrier to entry constitutes a breaking. Lifting an unlocked window, turning a doorknob, pushing open an ajar door, or removing a screen satisfies the breaking element. Commonwealth v. Labare (78 Mass. App. Ct. 1, 2010). A defendant who walks through an open doorway without removing any barrier has not committed a breaking under Section 16.

Breaking and Entering at Daytime: M.G.L. c. 266, § 17

Daytime breaking and entering with intent to commit a felony carries up to 10 years in state prison under Section 17. The elements are identical to Section 16 except for the time of day. Daytime breaking and entering without intent to commit a felony is a misdemeanor under Section 18 carrying up to one year in a house of correction.

Constructive Breaking

Massachusetts courts recognize a doctrine of constructive breaking, under which a defendant who obtains entry through fraud, intimidation, or conspiracy with an occupant is deemed to have constructively broken into the structure even without any physical act of force. Under Commonwealth v. Stokes, a defendant who tricks an occupant into opening the door by false pretenses has committed a constructive breaking. This doctrine is most commonly applied in cases involving deception of elderly or vulnerable victims.

Intent to Commit a Felony

The intent element, required for the felony forms of breaking and entering, is intent to commit a felony inside the structure. Larceny over $1,200 is a felony in Massachusetts and is the most commonly alleged felony intent. The intent to commit assault and battery, rape, or other felonies also satisfies the element. The Commonwealth proves intent through circumstantial evidence: time of entry, the defendant’s conduct inside the structure, items found on the defendant, tools carried, and the specific areas of the structure entered. The Commonwealth does not need to prove that the intended felony was actually committed. See: Massachusetts Shoplifting and Larceny Defense.

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

Breaking and entering charges frequently accompany receiving stolen property charges under M.G.L. c. 266, § 60 when the defendant is found in possession of items taken from a burglarized structure. Receiving stolen property requires proof that the defendant possessed property, knew it was stolen, and intended to deprive the owner of it. A CWOF or conviction for receiving stolen property is a crime of dishonesty with significant CORI consequences for employment and professional licensing.

CORI and Collateral Consequences

CORI sealing. A felony breaking and entering conviction cannot be sealed for seven years after the end of probation or release. See: Massachusetts CORI Sealing and Expungement.

Professional licensing. A felony conviction is reportable to most Massachusetts licensing boards. A crime of dishonesty is particularly problematic for financial professionals, attorneys, and healthcare providers. See: Criminal Defense for Licensed Professionals in Massachusetts.

Immigration. A breaking and entering conviction may qualify as a crime of moral turpitude under 8 U.S.C. § 1227(a)(2)(A)(i) or an aggravated felony theft offense under 8 U.S.C. § 1101(a)(43)(G) when a sentence of one year or more is imposed. See: Immigration Consequences of Massachusetts Criminal Charges.

Defense

No breaking. A defendant who entered through an open doorway or window without removing any barrier has not committed a breaking under Massachusetts law. The Commonwealth must prove a specific act of force, however slight, removing a barrier to entry.

No felony intent. The Commonwealth must prove beyond a reasonable doubt that the defendant entered with intent to commit a specific felony. Presence inside a structure without proof of felony intent may support only a misdemeanor charge.

Challenging identification. Breaking and entering cases frequently rely on surveillance footage, fingerprint evidence, and witness identification. Each of these is subject to challenge. Fingerprint evidence must be analyzed by a qualified examiner whose methodology satisfies Daubert standards under Commonwealth v. Patterson (445 Mass. 626, 2005). Eyewitness identification evidence is subject to cross-examination on viewing conditions, stress, and suggestive lineup procedures under Commonwealth v. Collins (470 Mass. 255, 2014).

Suppression of evidence. Physical evidence found through a warrantless search of a vehicle, a residence, or a person is subject to suppression. See: Illegal Searches and Seizures in Massachusetts.

Constructive possession challenges. When multiple people were present at or near the scene, the Commonwealth must prove the specific defendant committed the breaking and entering rather than an accomplice.

Related Pages

• Massachusetts Shoplifting and Larceny Defense
• Illegal Searches and Seizures in Massachusetts
• Arraignment in the Massachusetts Trial Court
• Clerk-Magistrate Hearings in Massachusetts
• CWOF, Pretrial Probation, and Diversion in Massachusetts FAQs
• Criminal Defense for Licensed Professionals in Massachusetts
• Immigration Consequences of Massachusetts Criminal Charges
• Massachusetts CORI Sealing and Expungement
• Massachusetts Criminal Defense Trial Results

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