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

Chapter 266 contains a family of breaking and entering offenses, and the section charged determines what the Commonwealth must prove, which defenses are available, and what sentence the court may impose. 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.

That last point is where most cases turn. A person accused of entering a building intending to take property faces a felony. A person accused of entering the same building intending something the law treats as a misdemeanor faces a six month exposure 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 is the most serious form. It 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, while any person is then lawfully inside, and the offender either is armed with a dangerous weapon at the time of the breaking or entry, arms himself in the house, or makes 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 figure is a floor, not a ceiling, and the life sentence is an available alternative in every case charged under this section.

Where the weapon is a firearm as defined in M.G.L. c. 140, § 121, the statute requires imprisonment in the state prison for life or for any term of years, but not less than 15 years. A subsequent offense involving a firearm is punishable by a state prison minimum of twenty years. A sentence imposed for a subsequent offense under this section may not be suspended, and the person may not be placed 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. It 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. The same section 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 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. That alternative counts at disposition, because the same conviction can be sentenced in either forum.

Proving the Nighttime Element

Nighttime is a defined statutory period rather than a reference to darkness. M.G.L. c. 278, § 10 provides that where a crime is alleged to have been committed in the night time, night time is the time between one hour after sunset on one day and one hour before sunrise on the next day, and that 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 fell within that period, and the element is contestable where the evidence leaves the timing uncertain. 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 general knowledge of matters 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).

Because the section charged depends on the hour, a case in which the Commonwealth cannot place the entry inside the statutory period is a different case from the one on 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. It 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 fits the facts when the felony intent is the weak part of the case, and it is the reason the intent element deserves attention 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

Sections 17 and 18 cover the same two acts, each with intent to commit a felony:

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

What separates the two sections is not the hour. It is whether a person lawfully inside was put in fear.

Section 17 applies where the owner or another person lawfully inside was put in fear. It 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. It 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. A person who commits any offense described in either section while armed with a firearm as defined in M.G.L. c. 140, § 121 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, or enters by false pretenses without breaking and, after entering, commits a larceny as defined by Section 30, with no person lawfully inside put in fear. It is punishable by imprisonment in the 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 in cases involving a person who talked his way through the door, because the Commonwealth may charge it 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. That distinction is not academic. It is the difference between a Section 16 or Section 18 charge and no breaking and entering charge at all, and it frequently depends on what a responding officer observed about the door or window rather than on what a witness later recalled.

Constructive Breaking

The statutory term “breaks” retains its common law meaning, and that 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).

Where the Commonwealth proceeds on a constructive breaking theory involving a dwelling house entered by false pretenses, counsel should also consider whether Section 18A states the offense more precisely, because the exposure differs.

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, and a case can fail on one while the other is established.

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: 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 points deserve care. First, presence inside a structure does not by itself establish that a person entered with felony intent, and it does not by itself establish that a person entered at all in the legal sense. Second, the failure of 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, and whether a lesser offense is available depends on the charging decision and on the evidence at trial.

The distinction between a Massachusetts felony and a misdemeanor determines the court, the maximum sentence, and much of the collateral exposure, so the intended offense drives consequences well beyond the charge itself.

Identification, Participation, and Possession

These are three separate questions, and running them together weakens a defense.

Identification asks whether the person on trial is the person who broke and entered. It is contested through the reliability of eyewitness identification, the quality of surveillance video, and the strength of any forensic comparison.

Participation asks 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 a separate matter, governed by the law of actual and constructive possession, and is most often litigated in connection with a receiving stolen property charge rather than the breaking and entering itself.

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

A breaking and entering accusation frequently arrives with a companion charge under Section 60, which 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 two charges travel 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. It does not require 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 them as separate trials of separate questions.

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. Where the property exceeds that value, or where the offense is a repeat, the authorized punishment is imprisonment in the state prison for not more than five years, or a fine of not more than $5,000. The value alleged is therefore worth contesting in its own right.

Search and Seizure Issues

Physical evidence in these cases usually comes from somewhere: a vehicle stop, a search of a residence, a search of a person, or a search of a phone. Whether that evidence is subject to suppression depends on 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. A motion to suppress asks whether the search fell within one of those exceptions and whether the Commonwealth can establish that it did.

Standing is a threshold question. A person who cannot establish a reasonable expectation of privacy in the place searched may be unable to challenge the search at all, and Massachusetts law on automatic standing in possessory offenses differs from federal law. Counsel should resolve standing before framing the motion.

The governing standards are set out at illegal searches and seizures in Massachusetts, and the rules for a phone or a computer, which require their own warrant and their own particularity analysis, are covered at Massachusetts phone and computer searches.

Statements are a separate question again. Whether anything a person said to police is admissible depends on custody, warnings, and voluntariness, and is governed by the rules 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 reviews these cases from the physical evidence outward rather than from the police narrative inward, because the narrative is written after the conclusion has been reached.

Expert and Identification Evidence

The Reliability Standard for Forensic Evidence

Massachusetts applies 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 that distinction 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, and the specific comparison performed in the specific case is open to challenge.

In-Court Identification

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

The rule addresses a specific risk. The courtroom setting itself suggests the answer, and confirmatory feedback between the first identification and the trial can inflate a witness’s apparent confidence without improving accuracy. Cross-examination alone may not cure that effect, which is why the question is litigated before the witness takes the stand rather than left to the jury to sort out afterward.

How These Cases Begin

Where a felony section is charged, a show cause hearing before a clerk-magistrate is available at the option of the police department rather than as a matter of right, and many of these cases begin with an arrest and proceed directly to arraignment.

Where the application alleges only the Section 16A misdemeanor, the person did not commit the offense in an officer’s presence, and no arrest was made, the accused ordinarily has a statutory right to a clerk-magistrate hearing before a complaint issues. A denial at that stage prevents the application from producing a complaint or an arraignment, though it 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, and 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 from arraignment forward, regardless of how the case ends. 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, and a record eligible for one 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, and the question should be answered against the governing rule rather than by assumption.

Immigration. 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, and an offense involving an intended theft or fraud may be analyzed as a crime involving moral turpitude, but neither follows automatically from the charge. The analysis belongs to immigration counsel working from the exact disposition and sentence. The framework is described at immigration consequences of Massachusetts criminal charges.

Students. A charge arising on or near a campus ordinarily triggers a parallel university disciplinary process that follows its own schedule and its own standard of evidence, addressed at college and university student criminal defense.

Related theft charges. Where the intended or completed offense was a theft, the elements and the value thresholds are set out at Massachusetts shoplifting and larceny defense.

Bottom Line

The section charged decides the case. A breaking and entering accusation is not one offense with one penalty. It is a choice among Sections 14, 15, 16, 16A, 17, 18, and 18A, and that choice 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. Each of those is a question the defense can contest.

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.