Burglary and Trespass Defense

Arizona's burglary and trespass laws share a set of definitions in A.R.S. § 13-1501. A few of them do most of the work:

• Enter or remain unlawfully means entering or staying on premises when your intent for being there is not licensed, authorized or otherwise privileged. There is one carve-out: going into a store that is open to the public, during business hours, to take merchandise on display is not unlawful entry, as long as you stay out of unauthorized areas.
• Entry means any part of your body, or any part of an instrument, intruding inside the outer boundary of a structure or property. Reaching through an open window can count.
• Structure is broad. It covers buildings, vehicles, railroad cars, vending machines, payment devices and other places with sides and a floor that are used for lodging, business, transportation, recreation or storage. A residential structure is one adapted for both human residence and lodging, whether or not it is occupied.
• Fenced yards have their own definitions. A fenced commercial yard must be surrounded completely by fences, walls, buildings or similar barriers. A fenced residential yard surrounds or is next to a home and is enclosed by a barrier.

Criminal trespass requires that you acted knowingly, and most forms turn on entering or remaining unlawfully. The degree depends on the place:

• Third degree (A.R.S. § 13-1502): any real property after a reasonable request to leave from an officer, the owner or another person in lawful control, or after reasonable notice prohibiting entry. It also covers railroad tracks, yards and rolling stock.
• Second degree (A.R.S. § 13-1503): a nonresidential structure or a fenced commercial yard.
• First degree (A.R.S. § 13-1504): a residential structure or fenced residential yard; entering a residential yard and looking into the home in reckless disregard of the occupant's privacy; a critical public service facility, such as a posted utility, transit or emergency services site; entering a mineral claim to work it; or desecrating religious property on someone else's land.

Burglary adds the intent element:

• Third degree (A.R.S. § 13-1506): entering or remaining unlawfully in a nonresidential structure or a fenced commercial or residential yard with the intent to commit any theft or felony there, or entering any part of a motor vehicle with a manipulation key or master key with that intent.
• Second degree (A.R.S. § 13-1507): entering or remaining unlawfully in a residential structure with the intent to commit any theft or felony there.

Possessing tools adapted or commonly used for burglary, while intending to use them in a burglary, is a separate crime under A.R.S. § 13-1505. So is buying, selling, possessing or using a motor vehicle manipulation key or master key, with exceptions for people such as locksmiths and dealers using a master key in their lawful business, and for a single manipulation key held without intent to commit a theft or felony.

Burglary in the first degree (A.R.S. § 13-1508) is second or third degree burglary in which you or an accomplice knowingly possess explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony. It is a class 3 felony for a nonresidential structure or a fenced commercial or residential yard, and a class 2 felony in a residential structure.

For a first felony offense that is not a dangerous offense, A.R.S. § 13-702(D) sets these prison ranges:

The same table lists a lower mitigated term and a higher aggravated term for each class. Prior felony convictions raise these ranges. If a felony is a dangerous offense, A.R.S. § 13-704(A) sets longer ranges, such as 5 to 15 years for a first class 3 offense.

For misdemeanors, A.R.S. § 13-707 caps jail time and A.R.S. § 13-802 caps fines:

Surcharges are added to any fine. Our felony defense and misdemeanor defense pages explain more about how these cases move through court.

First degree burglary and dangerous allegations. First degree burglary involves a weapon, explosive or dangerous instrument, so the state can also allege it as a dangerous offense when a weapon was used or displayed in a threatening way. A dangerous allegation moves sentencing to A.R.S. § 13-704. For a first dangerous offense, the range for a class 2 felony is 7 to 21 years with a presumptive term of 10.5 years, and for a class 3 felony 5 to 15 years with a presumptive term of 7.5 years. A person sentenced under § 13-704 is not eligible for probation (§ 13-704(G)).

Intent. Burglary requires the intent to commit a theft or felony inside. The state usually tries to prove intent from circumstances, such as what you carried and what you did. If you went in for another reason, the facts may support trespass at most.

Permission. Entry is unlawful only if your reason for being there was not licensed, authorized or otherwise privileged. Roommates, family members, former partners, workers and guests may have some permission. We look at keys, texts, lease terms and past practice.

The kind of place. The degree depends on the property. Whether a building is adapted for human residence and lodging, or whether a yard is fully enclosed, can move a case between degrees or from a felony to a misdemeanor.

The store exception. If the case is really about taking displayed merchandise from a store open to the public during business hours, and you stayed out of unauthorized areas, the law says the entry itself was not unlawful. That can make it a theft case instead. See our theft and shoplifting page.

Notice and requests to leave. Third degree trespass requires a reasonable request to leave or reasonable notice prohibiting entry. We look at whether that request or notice actually happened, who gave it, and whether it was reasonable.

Identification and the search. Many cases rest on video, fingerprints or someone being found nearby. We test the identification and review how police gathered evidence. If a search was not lawful, we can ask the court to exclude what was found.