Burglary Charges in Minnesota: The Four Degrees

What Burglary Requires

At its core, burglary (Minn. Stat. § 609.582) is: entering a building without consent, while intending to commit a crime there (or actually committing one) — either directly or as an accomplice. Two points surprise people:

• No forced entry is needed. You can commit burglary by entering through an unlocked or open door, by using a trick or misrepresentation to get consent, or by staying in a building after consent is withdrawn.
• A building open to the public is entered with consent — unless consent was expressly withdrawn before entry.

The Four Degrees

First-Degree Burglary (Felony — the most serious)

Entering a building without consent, intending to or actually committing a crime, where any one of these is true:

• the building is a dwelling and another person (not an accomplice) is present;
• the burglar possesses a dangerous weapon (or an item made to look like one) or an explosive; or
• the burglar assaults a person in the building or on the property.

A conviction for burglary of an occupied dwelling carries a mandatory minimum of at least six months.

Second-Degree Burglary (Felony)

Entering without consent and with criminal intent where, for example: the building is a dwelling (with no one present); the entry is forcible into a portion containing a bank or a pharmacy/place where controlled substances are kept; the burglar possesses a tool to gain access to money or property; or the building is a government building, religious establishment, historic property, or school.

Third-Degree Burglary (Felony)

Entering a building without consent with intent to steal or commit a felony or gross misdemeanor (or actually doing so), where the specific aggravating features of first- and second-degree are absent.

Fourth-Degree Burglary (Gross Misdemeanor)

Entering a building without consent with intent to commit (or actually committing) a misdemeanor other than theft. This is the least serious form.

What Counts as a "Building" or "Dwelling"

A "building" is a structure suitable for sheltering people, including attached or connected structures. An individual apartment can be a "building," and even a non-public part of an otherwise public structure can qualify. A "dwelling" is a building used as a permanent or temporary residence — and the "dwelling" classifications carry the most serious consequences.

Possession of Burglary or Theft Tools

It's a separate felony (Minn. Stat. § 609.59) to possess tools, instruments, or devices with intent to use them to commit burglary or theft. You can face this charge based on the tools and your intent, even without a completed burglary.

Common Defenses to Burglary

• Consent to enter — you had permission, or the building was open to the public and consent wasn't withdrawn.
• No criminal intent at entry — burglary requires intent to commit a crime; if that intent wasn't present, the charge may fail or be reduced.
• Claim of right — you believed you had a right to be there.
• Mistaken identity / insufficient evidence — common where no one saw the entry.
• Challenging the degree — disputing whether it was a "dwelling," whether someone was "present," or whether a weapon was involved, which can lower the degree dramatically.

What this means for you: Because the degree turns on specific facts — was it a dwelling, was someone home, was a weapon involved — challenging those facts can be the difference between a low-level felony and a charge carrying a mandatory minimum.

Key Terms

• Without consent: Entry not permitted — including by trick, or by staying after consent ends.
• Dwelling: A building used as a residence — triggers the most serious degrees.
• Occupied dwelling: A dwelling with someone present — first-degree, with a mandatory minimum.
• Burglary tools: Items possessed with intent to use for burglary or theft — a separate felony.