Maryland Criminal Defense · Theft & Property

Burglary in Maryland: The Four Degrees, the Penalties, and Why the Charge on Your Paper Is Not the Charge You Are Stuck With

Four burglary counts from one night is not a clerical error. It is a range — and the distance between the top of it and the bottom is seventeen years.

By Amir Guerami, Esq. · The Guerami Law Firm, LLC

You expected one charge. What arrived was a stack of them — first degree, third degree, fourth degree, plus theft, plus malicious destruction of property — all for a single night that lasted a few minutes.

That stack frightens people more than any single count does, because it looks like the State has already decided who you are. It has not. What it has done is charge every degree the facts could conceivably support, and it is waiting to see which ones hold up.

Understanding how Maryland's burglary law is built is the first honest step toward pushing back on it.

The Statute

Four Degrees, Two Buildings, One Question About Intent

Maryland's burglary statutes live at Md. Code, Crim. Law §§ 6-201 through 6-205. Every one of them is assembled from the same four components: a breaking, an entering, a type of structure, and — in three of the four degrees — a specific intent.

Change the structure or change the intent, and the degree changes with it.

• First degree — § 6-202. Breaking and entering the dwelling of another with the intent to commit theft, a crime of violence, or arson. Felony, up to 20 years. This is the most serious burglary charge Maryland has, and it exists because the law treats entering a home where people sleep as categorically different from entering a warehouse.

• Second degree — § 6-203. Breaking and entering the storehouse of another with that same intent. A storehouse is essentially any structure that is not a dwelling — a store, an office, a warehouse, a shed, a detached garage, a trailer. Felony, up to 15 years. The statute also contains a separate firearm provision: breaking and entering a storehouse with intent to steal a firearm carries up to 20 years, the same ceiling as first degree.

• Third degree — § 6-204. Breaking and entering the dwelling of another with intent to commit a crime — any crime. Felony, up to 10 years.

• Fourth degree — § 6-205. A misdemeanor carrying up to 3 years, and broader than most people realize. It covers breaking and entering a dwelling, breaking and entering a storehouse, being in or on the dwelling, storehouse, or the yard, garden, or other property belonging to them with intent to commit theft, and possessing burglar's tools with intent to use them.

Read first degree against third degree and the design becomes obvious. First degree demands proof that you meant to steal, hurt someone, or set a fire. Third degree only demands proof that you meant to do something unlawful in there. It is the State's insurance policy against a failure of proof on the top count.

And note what is missing from the first two variants of fourth degree: intent. Under § 6-205, the State does not have to prove you meant to do anything once you were inside. The breaking and the entering are enough.

First degree demands proof of what you meant to do. Fourth degree demands nothing but that you got in.

Definitions

The Two Words That Decide the Degree

"Dwelling." Maryland's definitions section, § 6-201, matters more than most defendants ever learn. A dwelling is a structure used as a place where people sleep — a home. Whether anyone happened to be inside at the time does not control the analysis.

But the label is not automatic. A house gutted for renovation with no one living in it may not be a dwelling. A detached garage, a barn, a storage unit, a construction trailer — those are typically storehouses. That single distinction moves the ceiling from 20 years to 15, or a felony to a misdemeanor.

"Breaking." Maryland has kept a real breaking requirement, and it is more defendant-friendly than people assume. The force required is minimal — pushing open a closed but unlocked door counts, and so does lifting an unlatched window. But there must be some force applied to some barrier. Walking through a door standing wide open, or entering a business during posted hours, is not a breaking.

Maryland also recognizes what the older cases call a constructive breaking — gaining entry through fraud, threat, or arrangement with someone inside. But that has to be proven too.

★Leverage Point

Two questions decide how many years are on the table, and both of them are facts the State must prove.

• Was the structure legally a dwelling — a place someone actually lived and slept?

• Was there a breaking — actual force applied to an actual barrier?

• If the answer to the first is no, first and third degree fall away.

• If the answer to the second is no, there is no burglary in any degree.

The Insider Lens

What Prosecutors Actually Look At Before They Pick a Degree

When I was the one filing these charges, the decision was made in the first week, and it turned on two things.

First, what kind of building is it, and can I prove it? That is not a formality. It requires an actual witness who can say people lived there, slept there, kept it as a home. If the property was vacant, mid-renovation, tenant-less, or in foreclosure, first and third degree get shaky and the case slides toward second or fourth.

Second, what evidence do I have of what he meant to do inside? Intent is invisible. It gets built out of circumstances: the time of night, whether tools were carried, whether anything was taken, whether property was moved or staged near an exit, and — more than anything else — what the defendant said afterward.

So I charged the top degree and the bottom degree in the same document. First degree set my ceiling for negotiation. Fourth degree guaranteed that even if intent evaporated at trial, something was still on the table.

That is worth sitting with, because defendants read a long list of counts as strength. Often it is the opposite.

A long list of counts is not a measure of how strong the case is. Very often it is a measure of how uncertain it is.

Costly Errors

The Mistakes That Do the Most Damage

!Do Not Do These Things

Each of these is a reasonable-sounding move that hands the State an element it might not otherwise have had.

• Do not explain why you were there. This is the single most common and most costly error in a burglary case. Every answer that sounds innocent — you were looking for a friend, you thought the place was abandoned, you were retrieving something you were owed — hands the State the presence element for free. Presence is frequently the hardest thing for the State to prove, especially where the identification is a partial camera image or a neighbor at a distance.

• Do not consent to a search. Phones, backpacks, cars, and storage units are where burglary cases are won or lost. Consent erases a suppression motion that might otherwise have ended the entire case.

• Do not treat fourth degree as the offer. Defendants see one misdemeanor count among the felonies and assume that is where this is heading. Fourth degree is the State's floor, not its position. Nothing about its presence on the charging document limits your exposure on the felony counts.

• Do not reach out to the property owner. A message intended to apologize, explain, or offer to pay for the damage is discoverable, is an admission, and — depending on how it is received — can generate a new charge.

!Do Not Assume This Stays in District Court

Burglary in the first, second, and third degree are felonies. Felony cases move to Circuit Court, where the exposure, the procedure, and the jury right all change. If a detective contacts you about a break-in, speak with a Maryland criminal defense lawyer before you say anything at all.

The Defense

What a Real Defense Looks Like

A serious burglary defense is a sequence of specific attacks, not a plea for sympathy. Run in order:

• Attack the structure. Was this legally a dwelling? Who lived there, and when did they last sleep there? Was it a storehouse used to store anything at all? The answer moves the degree, and the degree moves the years.

• Attack the breaking. If the door was open, the window was already broken, the gate was unlocked and standing ajar, or entry was through a common area, the breaking element is genuinely in dispute — and without a breaking there is no burglary in any degree.

• Attack the intent. First and second degree require intent to commit theft, violence, or arson. Third degree requires intent to commit some crime. Presence alone, even unlawful presence, is not intent. Where the State's intent evidence is nothing but the hour of the night, that is an argument worth making to a jury.

• Attack the identification. Burglary cases run on grainy footage, brief glimpses, and inference drawn from possession of property afterward. Every one of those has known weaknesses.

• Test how the evidence was gathered. Warrantless searches, consent obtained under pressure, phone extractions, and custodial statements are all challengeable. A granted suppression motion resolves more burglary cases than most defendants expect.

• Address merger and the sentence. Where multiple counts arise from one act, some may merge at sentencing. Where the record and facts support it, probation before judgment may be the objective on a misdemeanor count.

★On Probation Before Judgment

PBJ strikes the guilty finding and places you on probation instead of entering a conviction.

• It is discretionary — it depends on the facts, your record, and the county.

• It is not available on every count, and it is not an acquittal.

• No lawyer can promise it. It is a goal a defense builds toward, not a product it sells.

The Bottom Line

The Charging Document Is an Argument, Not a Verdict

What you are holding was written before anyone tested a single fact. It is the State's opening position, drafted to cover every degree the police report could arguably support.

Four degrees on one page describe a range of outcomes. They do not describe a result.

Where you land in that range depends on the structure, the breaking, the intent, and how hard someone makes the State prove each of them.

That work does not happen on its own.

Legal Disclaimer

This article is for general educational purposes only. It is not legal advice and does not create an attorney-client relationship. Maryland law changes, and every case turns on its own facts. If you or someone you love has been charged, speak with a Maryland criminal defense attorney about your specific situation before making any decisions.

Charged in Maryland?

If you have been charged with a crime or a serious traffic offense in Maryland, do not plead until you have spoken to a lawyer who has stood on both sides of the courtroom. Contact The Guerami Law Firm, LLC through NoPleaMD.com for a confidential consultation with Amir Guerami and his team.

The Guerami Law Firm, LLC NoPleaMD.com