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Scenario:

  • A person is caught on the roof of a building without having any prior authorization to be there.
  • When asked to leave by security/building personnel he complies.
  • Security reports to the police that they are confused on how he got on the roof as access to it is locked, and when police search there are no burglary tools or signs of a forced entry.
  • The suspect doesn't volunteer any information or answer questions.

Is this Trespassing or Breaking & Entering?

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    A little more investigation is needed. That would not answer either one definitively.
    – Mimedfp
    Commented May 1 at 17:39
  • Is the first "they" different than the second "they"? It seems that way from context, but you should clarify... And did they get "in" the building, or were they just "on" the roof? Commented May 1 at 18:51
  • @MichaelHall The first they is the person caught on the roof. The second they is the security/building personnel
    – JuicySeals
    Commented May 1 at 19:21
  • OK, I tried to clarify the scenario with an edit, please let me know if it remains try to your intent... Commented May 1 at 20:25
  • Where I live, climbing over a fence makes you guilty of breaking and entering IFF all of the gates through the fence are locked. IDK what the judge would say about climbing up the side of a building, but it seems like there is some similarity between the two. Commented May 1 at 20:34

2 Answers 2

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Florida law makes a number of distinctions the depend upon the nature of the property. I assume a residence, but the question isn't clear what kind of structure is involved. There are half a dozen or so special rules in Florida law that depend upon the type of the structure.

Trespassing involves being on the property of another without permission. While an implied license is assumed to walk up to a front door, this limitation wouldn't apply in the case of being on a roof. But, being told to leave and not promptly leaving is an offense.

Florida has several trespass laws, some applicable to public property or caves, and another pertaining to being inside a structure, which do not apply. The most relevant Florida statute states:

810.09 Trespass on property other than structure or conveyance.—

(1)(a) A person who, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance:

1. As to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in s. 810.011; or

2. If the property is the unenclosed curtilage of a dwelling and the offender enters or remains with the intent to commit an offense thereon, other than the offense of trespass, commits the offense of trespass on property other than a structure or conveyance.

(b) As used in this section, the term “unenclosed curtilage” means the unenclosed land or grounds, and any outbuildings, that are directly and intimately adjacent to and connected with the dwelling and necessary, convenient, and habitually used in connection with that dwelling.

(2)(a) Except as provided in this subsection, trespass on property other than a structure or conveyance is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(b) If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person, or if the offender willfully opens any door, fence, or gate or does any act that exposes animals, crops, or other property to waste, destruction, or freedom; unlawfully dumps litter on property; or trespasses on property other than a structure or conveyance, the offender commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

(c) If the offender is armed with a firearm or other dangerous weapon during the commission of the offense of trespass on property other than a structure or conveyance, he or she is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any owner or person authorized by the owner may, for prosecution purposes, take into custody and detain, in a reasonable manner, for a reasonable length of time, any person when he or she reasonably believes that a violation of this paragraph has been or is being committed, and that the person to be taken into custody and detained has committed or is committing the violation. If a person is taken into custody, a law enforcement officer shall be called as soon as is practicable after the person has been taken into custody. The taking into custody and detention in compliance with the requirements of this paragraph does not result in criminal or civil liability for false arrest, false imprisonment, or unlawful detention.

(d) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed is a construction site that is:

1. Greater than 1 acre in area and is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”; or

2. One acre or less in area and is identified as such with a sign that appears prominently, in letters of not less than 2 inches in height, and reads in substantially the following manner: “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.” The sign shall be placed at the location on the property where the permits for construction are located. For construction sites of 1 acre or less as provided in this subparagraph, it shall not be necessary to give notice by posting as defined in s. 810.011(5).

(e) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed upon is commercial horticulture property and the property is legally posted and identified in substantially the following manner: “THIS AREA IS DESIGNATED COMMERCIAL PROPERTY FOR HORTICULTURE PRODUCTS, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”

(f) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed upon is an agricultural site for testing or research purposes that is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED AGRICULTURAL SITE FOR TESTING OR RESEARCH PURPOSES, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”

(g) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed upon is a domestic violence center certified under s. 39.905 which is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED RESTRICTED SITE AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”

(h) Any person who in taking or attempting to take any animal described in s. 379.101(19) or (20), or in killing, attempting to kill, or endangering any animal described in s. 585.01(13) knowingly propels or causes to be propelled any potentially lethal projectile over or across private land without authorization commits trespass, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. For purposes of this paragraph, the term “potentially lethal projectile” includes any projectile launched from any firearm, bow, crossbow, or similar tensile device. This section does not apply to any governmental agent or employee acting within the scope of his or her official duties.

(i) The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property trespassed upon is an agricultural chemicals manufacturing facility that is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED AGRICULTURAL CHEMICALS MANUFACTURING FACILITY, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”

(j)1. The offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the offender trespasses with the intent to injure another person, damage property, or impede the operation or use of an aircraft, runway, taxiway, ramp, or apron area, and the property trespassed upon is the operational area of an airport that is legally posted and identified in substantially the following manner: “THIS AREA IS A DESIGNATED OPERATIONAL AREA OF AN AIRPORT AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY.”

2. For purposes of this paragraph, the term “operational area of an airport” means any portion of an airport to which access by the public is prohibited by fences or appropriate signs and includes runways, taxiways, ramps, apron areas, aircraft parking and storage areas, fuel storage areas, maintenance areas, and any other area of an airport used or intended to be used for landing, takeoff, or surface maneuvering of aircraft.

(3) As used in this section, the term “authorized person” or “person authorized” means any owner, his or her agent, or a community association authorized as an agent for the owner, or any law enforcement officer whose department has received written authorization from the owner, his or her agent, or a community association authorized as an agent for the owner, to communicate an order to leave the property in the case of a threat to public safety or welfare.

The language in bold is the "entering" part of breaking and entering. The breaking part would be among other things criminal mischief (a.k.a. vandalism). In this case there is neither entering within the meaning of the trespass statute nor destruction of property within the meaning of the criminal mischief statute, so what is colloquially called breaking and entering doesn't appear to have happened.

Of course, it is possible that the suspect got into his position with other illegal acts that law enforcement hasn't figured out yet. Indeed, the circumstances strongly suggest that some other crime was intended or committed to get in that position, although there isn't enough detail in the question to know (and generally speaking, we try to provide answers at Law.SE about whether someone was actually violating the law and not whether law enforcement will be competent enough to prove it).

This might also be a case of attempted burglary, but one would first have to be able to prove, with circumstantial evidence, why the suspect was on the roof, and show that it was with an intent to commit a crime.

As shown below, burglary generally requires that you be "in" the structure, which it isn't obvious that being on a rooftop satisfies.

The Florida burglary statue states:

810.02 Burglary.—

(1)(a) For offenses committed on or before July 1, 2001, “burglary” means entering or remaining in a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

(b) For offenses committed after July 1, 2001, “burglary” means:

1. Entering a dwelling, a structure, or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter; or

2. Notwithstanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance:

a. Surreptitiously, with the intent to commit an offense therein;

b. After permission to remain therein has been withdrawn, with the intent to commit an offense therein; or

c. To commit or attempt to commit a forcible felony, as defined in s. 776.08.

(2) Burglary is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender:

(a) Makes an assault or battery upon any person; or

(b) Is or becomes armed within the dwelling, structure, or conveyance, with explosives or a dangerous weapon; or

(c) Enters an occupied or unoccupied dwelling or structure, and:

1. Uses a motor vehicle as an instrumentality, other than merely as a getaway vehicle, to assist in committing the offense, and thereby damages the dwelling or structure; or

2. Causes damage to the dwelling or structure, or to property within the dwelling or structure in excess of $1,000.

(3) Burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;

(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains;

(c) Structure, and there is another person in the structure at the time the offender enters or remains;

(d) Conveyance, and there is another person in the conveyance at the time the offender enters or remains;

(e) Authorized emergency vehicle, as defined in s. 316.003; or

(f) Structure or conveyance when the offense intended to be committed therein is theft of a controlled substance as defined in s. 893.02.

Notwithstanding any other law, separate judgments and sentences for burglary with the intent to commit theft of a controlled substance under this paragraph and for any applicable possession of controlled substance offense under s. 893.13 or trafficking in controlled substance offense under s. 893.135 may be imposed when all such offenses involve the same amount or amounts of a controlled substance. However, if the burglary is committed during a riot or an aggravated riot prohibited under s. 870.01 and the perpetration of the burglary is facilitated by conditions arising from the riot; or within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the term “conditions arising from the riot” means civil unrest, power outages, curfews, or a reduction in the presence of or response time for first responders or homeland security personnel and the term “conditions arising from the emergency” means civil unrest, power outages, curfews, voluntary or mandatory evacuations, or a reduction in the presence of or response time for first responders or homeland security personnel. A person arrested for committing a burglary during a riot or an aggravated riot or within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

(4) Burglary is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Structure, and there is not another person in the structure at the time the offender enters or remains; or

(b) Conveyance, and there is not another person in the conveyance at the time the offender enters or remains. However, if the burglary is committed during a riot or an aggravated riot prohibited under s. 870.01 and the perpetration of the burglary is facilitated by conditions arising from the riot; or within a county that is subject to a state of emergency declared by the Governor under chapter 252 after the declaration of emergency is made and the perpetration of the burglary is facilitated by conditions arising from the emergency, the burglary is a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. As used in this subsection, the terms “conditions arising from the riot” and “conditions arising from the emergency” have the same meanings as provided in subsection (3). A person arrested for committing a burglary during a riot or an aggravated riot or within a county that is subject to such a state of emergency may not be released until the person appears before a committing magistrate at a first appearance hearing. For purposes of sentencing under chapter 921, a felony offense that is reclassified under this subsection is ranked one level above the ranking under s. 921.0022 or s. 921.0023 of the offense committed.

For example, if he was trying to parachute into his own backyard in the neighborhood, but got carried onto the roof by a gust of wind, and then the parachute blew away before law enforcement arrived, it wouldn't be attempted burglary, or breaking and entering. Trespass liability in that fact pattern would depend upon the level of intent required for criminal trespass in Florida law. Florida requires enough intent that this would probably not be a crime.

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  • You are confused as to what breaking and entering is. Most places do not have a law titled that. It is used to enhance burglary or other offenses, being that a break in occured making the offense more serious.
    – Mimedfp
    Commented May 1 at 20:19
  • that is nowhere close to being true. What state are you basing that on?
    – Mimedfp
    Commented May 1 at 20:22
  • Most places have a breaking and entering offense. But at the state level at least, it seems that it is dealt with in the burglary and trespass statutes (and probably vandalism statutes as well).
    – ohwilleke
    Commented May 1 at 20:31
  • @Mimedfp, You are arguing with an extremely credible and prolific contributor here. I am confident he is correct, and the link I posted in the comment on your answer solidifies this... Commented May 1 at 20:31
  • Where I live, walking up to the front door is trespassing, but mere trespassing is not a crime. Where I live, you are guilty of unlawful trespassing if you walk on somebody's property after they have asked you to keep off of it. They can ask you to your face, or they can ask you by sending a letter, or they can "ask" you by posting signs that meet a certain standard of visibility at certain intervals around the perimeter of the property. (In places near to where I live, they can "ask" by painting purple, horizontal stripes around tree trunks at the perimeter of the property.) Commented May 1 at 20:32
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Breaking and entering usually refers to a burglary or other crime that was committed after the person broke in. It is often used as a catchall phrase.

Trespassing usually means a person was asked to leave and is there.

Being on the roof does not say that either of those things occured.

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    You are just wrong. Burglary as distinct from breaking and entering, involves entering into property without permission with intent to commit a crime. Breaking and entering is usually a separate and lesser offense.
    – ohwilleke
    Commented May 1 at 20:18
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    "Breaking and entering is defined as the entering of a building through force without authorization." Source: law.cornell.edu/wex/breaking_and_entering Commented May 1 at 20:28
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    You can "break into" and "enter" an outdoor space that is enclosed by a fence. Where I live, you can be found guilty of breaking and entering even if you didn't actually "break" anything (e.g., if all you did was climb over the fence.) Commented May 1 at 20:39
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    "Produce the law then." OK. All it takes is one: ncleg.net/enactedlegislation/statutes/html/bysection/chapter_14/… Commented May 1 at 20:44
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    We can vote the other answer up because of its thoroughness (as is usual for ohwileke), and vote this one down because it's so terse and general that it's not very useful. Actually, people can vote up/down for whatever reason they like.
    – Barmar
    Commented May 1 at 21:22

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