Trespass vs Burglary

Introduction

For red teamers conducting physical security testing, understanding the legal difference between trespass and burglary is critical. Although the two offenses may appear similar, they carry vastly different legal consequences. Trespass is typically a misdemeanor, while burglary is always a felony. The distinction can determine whether an incident results in a minor legal issue or a career ending criminal charge.

The key legal factor that separates these offenses is intent.

Why This Distinction Matters

Trespass is generally treated as a lower level offense. In most jurisdictions, it is classified as a misdemeanor and may result in fines, short term detention, or local jail time. When proper authorization exists, trespass charges are often resolved quickly.

Burglary carries far more severe consequences. It is classified as a felony in all states and commonly carries prison sentences ranging from two to twenty years or more. A burglary conviction can result in a permanent criminal record, loss of civil rights, loss of security clearances, and long term damage to professional credibility.

Because physical red team activities often resemble criminal behavior, misunderstanding this distinction creates substantial risk.

Defining Trespass

Trespass is defined as entering or remaining on property without permission. This may involve entering a restricted area without authorization or staying on property after being asked to leave.

Trespass does not require proof of additional criminal intent. Prosecutors do not need to show that theft, damage, or other criminal activity was planned or attempted. Physical presence without permission is sufficient.

For this reason, trespass is usually charged as a misdemeanor offense.

Defining Burglary

Burglary is defined as unlawful entry into a structure with the intent to commit a crime inside. Two elements must be present at the time of entry.

First, the entry itself must be unauthorized. Second, the individual must have intent to commit a crime when entering the structure.

It is not necessary for prosecutors to prove that a crime was completed. The offense is considered complete at the moment of entry if criminal intent is established. This is why burglary charges escalate rapidly and are difficult to defend.

Intent is the central factor in burglary cases.

The Coalfire Case Study

A well known example illustrating this risk is the Coalfire courthouse incident in Iowa in 2019.

Two authorized security consultants were conducting a physical security assessment of a courthouse. They had written authorization from the state and entered the building at night as part of the test.

Local law enforcement was not notified of the engagement. When an alarm was triggered, the county sheriff responded and observed what appeared to be an unlawful break in of a government building.

The consultants were arrested and charged with third degree burglary, despite having valid authorization. They spent time in jail and faced felony charges before the case was ultimately dismissed.

The incident demonstrates that authorization alone may not protect testers if responding law enforcement is unaware of the engagement.

Protecting Yourself During Physical Engagements

Several steps reduce the risk of trespass or burglary charges during physical red team operations.

Red teamers must understand state specific definitions of trespass and burglary. Some states expand burglary definitions to include vehicles or outdoor structures. Others increase penalties based on time of day.

Written authorization must be clear, specific, and carried at all times during the engagement.

Local law enforcement should be notified in advance of any physical testing. This includes the agencies that will respond to alarms or suspicious activity.

All actions should be carefully documented, including timestamps and actions taken during the engagement.

Key Takeaways

Trespass involves being on property without permission and is typically a misdemeanor.
Burglary involves unlawful entry with intent to commit a crime and is always a felony.
Intent at the time of entry is the defining legal factor.
Authorization alone may be insufficient if law enforcement is not informed.
Clear documentation and proactive coordination are essential for physical red team safety.

Understanding and respecting this distinction is essential for conducting lawful physical security testing.