I recently blogged about some of the questions that arise in connection with breaking or entering a motor vehicle, e.g., whether one commits that offense if one reaches into the open bed of a pickup truck. I’ve also been asked several questions recently about breaking or entering a building, and specifically, about what counts as a “building.”
The question seems simple enough. Under G.S. 14-54, it is a crime to “break or enter any building.” Plain old breaking or entering is a misdemeanor, but if the crime is committed with the intent to commit larceny or a felony in the building, as it often is, the offense is a felony. The statute actually defines “building” as “any dwelling, dwelling house, uninhabited house, building under construction, building within the curtilage of a dwelling house, and any other structure designed to house or secure within it any activity or property.”
The italicized language is, um, rather broad. Do those fake rocks made to hold spare house keys count as “buildings”? They’re certainly “designed to house or secure within [them] . . . property.” What about a vegetable garden surrounded by chicken wire? Is there any chance that I can prosecute the rabbits that always eat my green beans?
Looking at North Carolina Crimes helps advance the ball. It notes that “a building . . . may be a store, boiler room, shop, warehouse, bank, garage, mobile home, trailer put up on blocks and used for storage . . . or any other permanent structure with walls and a roof.” Jessica Smith, North Carolina Crimes 300 (6th ed. 2007). The “walls and a roof” language appears to come from State v. Gamble, 56 N.C. App. 55 (1982). The court there held that a fenced-in area used for parking and storage was not a “building.” Relying on a dictionary definition of “building” and on the history of our state’s breaking or entering statutes, the court ruled that a building requires “one or more walls and a roof.” That suggests that fake rocks and vegetable gardens are out. Bunnies, you can rest easy.
But hard cases remain. For example, what about open carports? I’m not aware of a North Carolina case on point, and cases in other jurisdictions are mixed. The answer may depend on whether the carport is attached to a house — and so has at least one wall — or whether it is completely free-standing. See generally, e.g., People v. Thorn, 176 Cal. App. 4th 255 (Cal. Ct. App. 2009) (intrusion into open carport supported burglary conviction); Jefferson v. State, 977 So. 2d 431 (Miss. Ct. App. 2008) (intrusion into detached carport did not support burglary conviction); State v. Johnson, 2006 WL 541333 (Wash. Ct. App. 2006) (unpublished) (intrusion into detached garage without door supported burglary conviction).
What about tents? North Carolina Crimes suggests that a tent is a dwelling for purposes of burglary, see Crimes at 295, from which it would seem to follow that a tent is a building for purposes of breaking or entering. Some support for this view comes from State v. Kaplan, 23 N.C. App. 410 (1974), which in passing characterized a tent as a “structure.” But see State v. Jake, 60 N.C. 471 (1864) (holding that a sturdy, permanent log cabin was a dwelling for the purposes of burglary and so “differs from a tent or a booth erected in a market or fair, in which no burglary could be committed, although the owner lodges in it”).
A useful collection of cases from across the country regarding the status of tents, doghouses, corn cribs, smokehouses, telephone booths, and other possible buildings is Jeffrey Ghent, What is “building” or “house” within burglary or breaking and entering statute, 68 A.L.R.4th 425 (1989). As always, I’d be interested to know about any recurrent issues not addressed above.