Surreptitious Remaining An Actus Reus Of Burglary

Burglary, a serious offense in most jurisdictions, involves the unlawful entry into a structure with the intent to commit a crime inside. The actus reus, or the guilty act, of burglary traditionally encompasses the physical act of breaking and entering. However, modern statutes and the Model Penal Code have broadened this definition to include surreptitious remaining, which refers to the act of staying unlawfully in a building with the intent to commit a crime. This article delves into the concept of surreptitious remaining, its implications, and how it expands the scope of burglary laws.

The Evolution of Burglary Laws

Historically, burglary was defined narrowly, focusing on breaking and entering a dwelling at night with the intent to commit a felony. This definition was rooted in the need to protect the sanctity of the home and the safety of its occupants during the vulnerable hours of darkness. Over time, the definition of burglary has evolved to reflect changes in societal norms and the need to address a wider range of criminal behaviors. Many jurisdictions have expanded the definition to include entry into any structure, not just dwellings, and during any time of day. Furthermore, the list of intended crimes has grown beyond felonies to include misdemeanors in some cases.

The inclusion of surreptitious remaining as an actus reus represents a significant development in burglary law. It addresses situations where a person may lawfully enter a building but subsequently remains with the intent to commit a crime. This could occur, for example, if a person enters a store during business hours with no ill intent but then hides until after closing with the plan to steal merchandise. Without the surreptitious remaining provision, such conduct might not be considered burglary under traditional definitions.

Surreptitious Remaining: A Key Element of Burglary

Surreptitious remaining as an element of burglary addresses scenarios where an individual, who may have initially entered a premises lawfully, remains unlawfully with the intent to commit a crime. This concept is crucial in modern burglary statutes because it captures situations that traditional breaking and entering definitions might miss. The Model Penal Code, a significant influence on criminal law reform in the United States, explicitly includes surreptitious remaining in its definition of burglary, highlighting its importance in contemporary legal thought.

Understanding the Concept

The core of surreptitious remaining lies in the transition from lawful presence to unlawful presence coupled with criminal intent. Imagine a person entering a department store during opening hours. Initially, their presence is lawful. However, if this person hides in a fitting room until the store closes, with the intention of stealing merchandise, their status changes. They are now remaining surreptitiously, that is, secretly or by stealth, and their intent transforms their action into a potential act of burglary. This distinction is vital because it broadens the scope of burglary beyond forced entry, addressing situations where deception or opportunism plays a role.

The Role of Intent

Intent is a critical component of surreptitious remaining. The prosecution must prove that the individual not only remained unlawfully but did so with the specific intent to commit a crime within the premises. This element differentiates burglary from simple trespass or unlawful remaining. For instance, if an individual remains in a building after hours due to being accidentally locked in, without any criminal intent, they would not be guilty of burglary under the surreptitious remaining doctrine. The intent to commit a crime—whether it be theft, assault, or any other unlawful act—is what elevates the act to burglary.

Examples and Scenarios

Consider a few scenarios to illustrate this concept further:

1. The Office Intruder: An employee stays late in the office, hiding until everyone leaves, with the plan to access confidential files. Here, the initial entry was lawful, but the remaining is surreptitious and with criminal intent.
2. The Movie Theater Hider: An individual watches a late-night movie and, instead of leaving, hides in the restroom until the theater closes, intending to steal from the concession stand. Again, the surreptitious remaining with intent makes this a potential burglary.
3. The Accidental Stay: A shopper becomes engrossed in browsing and doesn't realize the store is closing. They are locked inside but have no intention to commit a crime. This situation does not constitute burglary because the element of criminal intent is missing.

These examples underscore the importance of both the unlawful remaining and the intent to commit a crime. The surreptitious remaining clause ensures that individuals who exploit a lawful entry to commit unlawful acts are held accountable under burglary statutes.

How Surreptitious Remaining Expands the Scope of Burglary

Surreptitious remaining significantly broadens the scope of burglary laws by capturing scenarios that traditional definitions of breaking and entering might overlook. This expansion is crucial in addressing modern criminal behaviors and ensuring that individuals who exploit lawful access for unlawful purposes are held accountable.

Addressing Loopholes in Traditional Laws

Traditional burglary laws, which focus on breaking and entering, often fail to address situations where an individual gains lawful entry but then remains with criminal intent. For example, consider an employee who stays late at the office, hides until everyone leaves, and then steals company property. Under a strict breaking and entering definition, this act might not be considered burglary because the initial entry was lawful. However, the surreptitious remaining clause closes this loophole by recognizing that the unlawful act occurs when the person remains hidden with the intent to commit a crime.

Incorporating Modern Criminal Tactics

Modern criminal tactics often involve exploiting access rather than forcing entry. Surreptitious remaining addresses these tactics by focusing on the individual's conduct after entry. This is particularly relevant in today's world, where technology and access control systems can be bypassed through deception or exploitation of trust. For instance, a person might enter a building under the guise of a visitor but then remain hidden to commit a crime later. The surreptitious remaining provision ensures that such actions are covered under burglary laws.

Protecting a Wider Range of Properties

Traditional burglary laws often focused on dwellings, reflecting a historical emphasis on protecting the home. However, modern statutes, influenced by the Model Penal Code, have expanded the definition of burglary to include a wider range of structures, such as commercial buildings, offices, and even vehicles. Surreptitious remaining supports this broader scope by addressing unlawful activities within any structure, regardless of its primary use. This is essential in protecting businesses and other non-residential properties from criminal activity.

The Model Penal Code's Influence

The Model Penal Code (MPC) has played a significant role in the evolution of burglary laws, particularly in the inclusion of surreptitious remaining. The MPC's definition of burglary encompasses situations where an individual "enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." This definition explicitly includes the scenario where a person remains unlawfully with criminal intent, aligning with the concept of surreptitious remaining.

Many states have adopted the MPC's approach, incorporating surreptitious remaining into their burglary statutes. This widespread adoption reflects a recognition of the need to address the gaps in traditional laws and to adapt to modern criminal behaviors. The MPC's influence has been instrumental in shaping a more comprehensive and effective approach to burglary law.

The Significance of the Model Penal Code

The Model Penal Code (MPC) has significantly influenced modern criminal law, particularly in defining and expanding the scope of burglary. The MPC's approach to burglary includes not only traditional breaking and entering but also surreptitious remaining, which has become a critical component in many state statutes. Understanding the MPC's perspective is essential for grasping the full context of surreptitious remaining in contemporary law.

MPC's Definition of Burglary

The MPC defines burglary more broadly than traditional common law definitions. According to the MPC, burglary occurs when a person "enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." This definition encompasses several key elements:

1. Entry: The MPC's definition includes any form of entry, not just forceful breaking and entering. This means that even if a person enters a building through an unlocked door or during business hours, they can still be charged with burglary if they have the intent to commit a crime.
2. Building or Occupied Structure: The definition extends beyond dwellings to include any building or occupied structure. This broadens the scope of burglary to cover commercial properties, offices, and other non-residential structures.
3. Purpose to Commit a Crime: The individual must have the specific intent to commit a crime inside the structure. This intent is crucial, as it distinguishes burglary from mere trespass.
4. Unlawful Presence: The MPC addresses surreptitious remaining by implication. If a person enters lawfully but remains with the intent to commit a crime, their presence becomes unlawful, thus fulfilling the requirements for burglary.

Surreptitious Remaining in the MPC

The MPC does not explicitly use the term "surreptitious remaining," but its definition of burglary inherently includes this concept. The key is the phrase "unless the premises are at the time open to the public or the actor is licensed or privileged to enter." This implies that if a person's privilege to be on the premises expires (e.g., by remaining after closing hours) and they have the intent to commit a crime, they can be charged with burglary.

For example, consider a person who enters a store during business hours with no criminal intent but then hides in a restroom until the store closes, planning to steal merchandise. Under the MPC, this person has committed burglary because they remained in the building after it was no longer open to the public, with the intent to commit a crime. This is a clear application of the surreptitious remaining principle.

Impact on State Laws

The MPC has had a significant impact on state criminal laws across the United States. Many states have adopted the MPC's definition of burglary, either verbatim or with slight modifications. This widespread adoption has led to a more consistent and comprehensive approach to burglary law, particularly in addressing situations involving surreptitious remaining.

States that have incorporated the MPC's principles into their burglary statutes often include provisions that explicitly cover scenarios where a person's lawful presence turns unlawful due to their intent and actions. This ensures that individuals who exploit a lawful entry for criminal purposes are held accountable.

Examples of State Statutes

To illustrate the influence of the MPC, consider a hypothetical state statute that closely follows the MPC's language:

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.

Under this statute, surreptitious remaining is implicitly covered. If a person enters a building lawfully but remains after hours with the intent to commit a crime, they have violated this statute.

Some states have even more explicit language. For example, a statute might state:

A person commits burglary if, without authority, he knowingly enters or remains within a building or occupied structure with the intent to commit any felony or theft therein.

This language clearly covers surreptitious remaining by including the phrase "remains within," ensuring that individuals who stay unlawfully with criminal intent are subject to burglary charges.

Conclusion

In conclusion, surreptitious remaining is a crucial element in modern burglary statutes, reflecting the evolution of criminal law to address contemporary criminal behaviors. By including surreptitious remaining as an actus reus, statutes and the Model Penal Code ensure that individuals who exploit lawful entry for unlawful purposes are held accountable. This expansion of burglary law is essential for protecting a wide range of properties and adapting to the complexities of modern criminal tactics.