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Can I Be Arrested for Breaking Into My Own Home?

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By Ephrat Livni, Esq. on November 11, 2015 2:07 PM

You can be arrested for breaking into your own home but it is unlikely that you will be charged or that the charges will stick. It may be that neighbors spot you jimmying a lock, don't recognize you, and call the cops. Or maybe a patrol car is driving by and wonders why you're crawling through the front window.

Whatever the case, you should be able to avoid arrest by explaining who you are and showing some proof you live in the place. But you can be arrested for breaking into your home, and it certainly has happened before. Here is how to handle it.

Talking to the Cops

If you are confronted by police while trying to get into your own home, stay calm. If you respond aggressively, chances are good that the situation will escalate. However infuriating it may be to be questioned about entering your house, consider the situation from the officer's perspective. It doesn't look like your house right now

Make it easy for police to deal with you and it will be easier for you, too. If no one is listening to you and officers are insistent on cuffing you, let them do it. Sure, it seems nuts. But if you resist, you could pick up a legitimate charge for that. The resisting arrest charge will not go away just because the burglary charge turned out false.

Burglary Defined

You will not end up with a burglary conviction for breaking into your house, even if charged. Burglary has three elements:

  • The unauthorized breaking and entry
  • Into a building or occupied structure
  • With the intent to commit a crime inside

While your breaking and entry may appear unauthorized, you do have permission to enter your home, and you have no intent of committing a crime. No prosecutor could prove burglary based on an arrest for trying to get into one's home. It seems highly unlikely that charges will be filed even if you are unfortunate and get arrested.

Henry Louis Gates, Jr.

In 2009, Harvard African-American history scholar Henry Louis Gates Jr. was famously arrested for breaking into his own home, according to the New York Times. He and a cabbie jimmied his lock and managed to get inside his Cambridge house. But a cop still came by shortly afterward and asked Gates to step outside.

Gates showed identification but the officer was not satisfied. When Gates yelled at the officer and became "disorderly" he was arrested and taken down to the station. He was released after a few hours.

But Professor Gates -- apart from being a prominent professor -- is a friend of President Obama. After much media attention was given to the scandalous and baseless arrest, officer, professor, VP and president, all met at the White House for a peaceful beer summit.

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