Minnesota Burglary Law: Can you Burgle Your Own Home?

An interesting case came up in Washington, D.C. recently.  A man was convicted of first-degree burglary; nothing particularly unusual in and of itself.  However, in a slightly odd twist, the home that was the subject was the home in which the man was living at the time of the incident!  The target of the burglary was apparently the man’s roommate, who had allegedly fallen afoul of local drug dealers.  The government’s theory was that the defendant had helped the drug dealers carry out their burglary by telling them that the roommate didn’t lock his door and by acquiescing to the burglary.  This led the appellate court in Washington, D.C. to ponder the question:  can you be convicted of burgling your own home?

In D.C., the answer to this question turned out to be yes, in certain circumstances.  The court decided to accept the idea that you could be convicted of burglary in that situation under an aiding and abetting theory—meaning, you helped someone else commit a burglary of the home—if the crime intended to be committed in the home, which formed the reason for the burglary, infringed upon the peaceful use and occupancy of a co-dweller of that home.

This issue could also arise in Minnesota, because under Minnesota law, one element of the offense of burglary is that the defendant entered a building without consent.  “Entering a building without consent” is defined as entering a building without the consent of the person in lawful possession.  So, the problem is, if a roommate or co-owner claims to have lawful possession of the home, can they be convicted of burglarizing it, since the law allows them to give consent to entry?

A 2009 Minnesota Supreme Court case considered this issue in part.  It found that a co-owner could divest himself of lawful possession of a piece of property and thereby become capable of burglarizing it.  Divesting oneself of lawful possession of property could happen in various ways:  one spouse moves out of the marital home after the couple separates, or one co-owner enters into a contract with a second co-owner to allow the second co-owner to live alone in the property.  In those situations, then, the key issue is whether the burglary defendant gave up the legal right to possess the property.

The Minnesota court apparently accepted the idea that you can’t burgle your own home if you are in fact in lawful possession of it, but that issue was never argued.  However, the D.C. court’s decision, focusing on the potential threat to peaceful use and occupancy of the co-dweller of the home, would fit with Minnesota’s interpretation of burglary as being not solely an offense against property but rather one that creates a special danger to human life, and its conclusion that in some circumstances, burglary should be considered a “person offense” rather than a “property offense.”

Kohlmeyer, & Hagen Law Office Chtd.
Mankato, Minnesota
507-625-5000