The short answer: NEVER.
- But what if you were looking for your missing child? Or a kidnapped woman who had been held hostage and raped every day for weeks? She knew her captor was coming back, and she might be in the same house with her child – could she break in then? What about to find a lost Alzheimer’s patient who wandered into his home and locked himself inside – could he bust his way out then? What if an ex-girlfriend or stalker has taken up residence inside your home that you used to share together but now she won’t leave, can you break it down then?
- We asked Orlando criminal defense attorney Richard Hornsby to shed some light on this complicated issue. First, please understand it is not legal for someone to simply walk into your home when you are away. This is trespass, a misdemeanor in the 1st degree. But what if you have a key? “Depending on how long they stay, it could elevate from trespassing to burglary,” Hornsby warned.
- “The crime of burglary occurs when an individual unlawfully enters or remains within a structure with the intent to commit a crime therein.” According to Florida Statute 810 .02(4), “the term “structure” includes an occupied vehicle and any enclosed space…for other than residential purposes.” A car would be included under the definition of structure, but only if it was being use for something other than residential purposes explains William D King.
- In most cases, a person can arrest someone they see breaking into their car or home, but there are other factors that must be into consideration. Did the person break in through an unlocked door or window? Did they enter because you asked them to (such as to fix something) and then they decided to stay without your permission? These could constitute “breaking” for purposes of burglary.
- If someone knowingly enters your home unlawfully, it is not legal even if you ask them to come inside. Anyone entering your vehicle or home that has no authority should leave immediately upon request.
- According to the above article, if the police officer catches somebody looking for a missing child/kidnapped woman/Alzheimer’s patient/stalker in his house (which he doesn’t have a key too), can he arrest them? Is this breaking and entering? No, it is not illegal.
- If you give someone consent to enter your home (such as the cable guy) but they stay after you ask them to leave, such action can be considers unlawful trespassing (a misdemeanor of the first degree). If you suspect someone is inside your home unlawfully but make no attempt to contact law enforcement or confront the person before trying to gain entry yourself, any subsequent actions could be viewe by prosecutors as “breaking” for purposes of burglary.
- Remember: if law enforcement officers respond and catch someone in your house. That has no authority to be there, they cannot arrest that individual – only YOU can! The police officer will then tell that person he is under citizen’s arrest or place him/her under arrest for trespassing explains William D King.
- Police officers are only allow to break into your home. If they have a warrant to do so, exigent circumstances exist. Or if you ask them to enter (such as in the case of a missing child). “A private individual cannot break into someone else’s property unless there is some exigent circumstance,” Hornsby said.
- “If they find this child, 911 should be call immediately. And law enforcement should respond instead of trying to go in you”. If you want to rescue your kidnapped wife or girlfriend, call the police first! They may tell you that it is not worth risking getting shot over. Especially since you don’t know where your “kidnap” person is.
The bottom line is this: if someone breaks into your home unlawfully. You can ask them to leave explains William D King. If they refuse to do so, that individual has committed the crime of trespass (a 1st degree misdemeanor) and/or burglary (if they entered with the intent to commit a felony). Also if the person breaks in through an unlocked door or window. They may not be committing the crime of burglary (if entering with intent to steal).
If the individual is on your property only briefly and you confront them before contacting law enforcement. Any subsequent action could be viewe by prosecutors as “breaking” for purposes of burglary.