Third-degree burglary contains two separate offenses

Subdivision 3(a) is the traditional nonresidential burglary provision. It applies only when no higher burglary degree controls and requires an intended or completed theft, felony, or gross misdemeanor inside the building. Subdivision 3(b), added in 2023, targets a narrower repeat retail-entry situation in a building otherwise open to the public. The two paragraphs share a maximum penalty but have different elements and different Minnesota Sentencing Guidelines severity levels.

Why the complaint must identify the paragraph

A charge under paragraph (a) should identify the building, nonconsensual entry or remaining, and the theft, felony, or gross misdemeanor allegedly intended or committed inside. A paragraph (b) charge should allege the prior notice, its timing, the intended or completed theft, and the qualifying prior conviction and sentence. A generic statement that the accused “committed third-degree burglary” does not explain which facts must be defended.

Third degree is not defined by property value

The value of property may determine the level of an alleged theft, but third-degree burglary is not simply burglary involving property under a dollar threshold. Under paragraph (a), an intended theft of any amount can qualify, as can a qualifying felony or gross misdemeanor. Under paragraph (b), the statute adds notice and prior-record elements to theft in a publicly open building. Value may affect companion theft charges and restitution, but it is not the organizing principle for the burglary degree.

Subdivision 3(a): traditional third-degree burglary

The traditional provision begins “except as otherwise provided” in section 609.582. That language matters. Burglary of a dwelling, burglary involving an occupied dwelling, a dangerous weapon, an assault, certain banks or pharmacies, an access tool, or specially protected buildings may fall under a higher degree. Paragraph (a) commonly applies to an ordinary nonresidential building when the intended or completed offense inside is theft, a felony, or a gross misdemeanor.

Entry into a building without consent

Minn. Stat. § 609.581 (2026) defines a building as a structure suitable for sheltering human beings, including an appurtenant or connected structure. “Enters a building without consent” means entering without consent from the person in lawful possession, obtaining entry through artifice, trick, or misrepresentation, or remaining inside without consent.

A broken door is not required. Entering an unlocked warehouse, office, garage, or storage structure can be nonconsensual. A person invited into a reception area can exceed consent by entering a locked employee area or may remain unlawfully after being told to leave. The State must prove the applicable form of nonconsensual entry, not simply that an owner disapproved after the fact.

Intent to steal while in the building

Theft is broader than physically carrying merchandise away. Minn. Stat. § 609.52 (2026) contains multiple forms of theft, each with required conduct and intent. When theft is the alleged independent crime, the prosecutor should identify the theory. The jury should not be invited to infer “theft” from mere presence, handling property, or violating a workplace rule.

Intent is usually proved circumstantially. Forced entry, concealment, knowledge of the premises, possession of bags or tools, disabling an alarm, selecting valuable items, moving property toward an exit, messages, and flight may support an inference. Each fact can also have an innocent explanation. The evidence must prove the accused’s intent at the legally relevant time beyond a reasonable doubt.

Intent to commit a felony or gross misdemeanor inside

Paragraph (a) also covers entry with intent to commit a felony or gross misdemeanor while in the building. A simple misdemeanor other than theft is not enough for third-degree burglary; it may implicate fourth-degree burglary instead. The grade of the independent crime is therefore an element, not a charging convenience.

Potential independent offenses can include felony property damage, certain assaults, controlled-substance crimes, gross-misdemeanor interference with emergency communications, or another offense meeting the statutory grade. The prosecutor must prove the elements and level of the named offense. A judge or jury cannot decide whether the independent crime qualifies from a label alone.

Crime committed after nonconsensual entry

The second alternative applies when a person enters without consent and actually steals or commits a felony or gross misdemeanor while inside. It does not require proof that the person possessed that intent at the instant of entry. The State must still prove nonconsensual entry or remaining, the completed independent crime, and the connection to the building.

This distinction matters in remaining-without-consent cases. A person might enter lawfully during business hours, move into a restricted area, stay after permission is withdrawn, and then commit a qualifying offense. The timeline must show when consent ended and when the crime occurred.

The independent offense must occur—or be intended to occur—inside

Third-degree burglary is worded more narrowly than first- and second-degree burglary. It expressly requires intent to steal or commit the felony or gross misdemeanor “while in the building,” or actual commission while there. In Munger v. State, 749 N.W.2d 335, 339–41 & n.4 (Minn. 2008), the Minnesota Supreme Court contrasted this express language with the broader intent clause in first-degree burglary. Read the official opinion.

That difference should appear in the complaint and instructions. An intent to commit an unrelated crime somewhere else does not satisfy paragraph (a) merely because the person also entered a building without consent.

Accomplice liability

The statute expressly covers direct action and accomplice liability. Under Minn. Stat. § 609.05 (2026), the State must prove intentional aid and the required criminal mental state. A lookout, driver, planner, or person who provides access information can be liable when the evidence shows knowing assistance. Mere friendship, presence, or driving without knowledge of the plan is not enough.

Subdivision 3(b): theft after a leave-and-do-not-return notice

Paragraph (b) is not a general rule turning every shoplifting case into felony burglary. It applies only when all of several conditions are present. The provision is relatively new, so older Minnesota articles and form pages may not mention it or may describe the current statute incompletely.

The building must be open to the public

The provision begins with entry into a building open to the public. Retail stores are the common example, but the language is not limited to a particular industry. A person ordinarily enters such a building with consent. Paragraph (b) creates a specific burglary rule when a valid prior direction to leave and not return changes the legal significance of a later entry.

The paragraph excludes government buildings, religious establishments, historic property, and school buildings identified in subdivision 2(b). Those locations have their own second-degree burglary rule for theft or property damage. The State cannot use paragraph (b) to bypass the protected-building classification.

Entry must occur within one year of notice

The accused must have been told to leave the building and not return, and the alleged reentry must occur within one year. Both parts matter. An instruction to leave for the day is not necessarily a one-year no-return notice. A general store policy posted somewhere the person never saw may not prove individualized notice. An expired notice does not satisfy the one-year element.

The defense should obtain the original trespass-warning form, body-camera or security video, audio, signature record, identity information, delivery method, store database entry, and any written duration. The State should prove that the accused was the person warned and that the notice covered the particular building. A company-wide database entry may not show what was actually communicated.

Intent to steal or completed theft

The person must enter with intent to steal while inside or actually steal while inside. A prohibited entry by itself may be trespass but does not establish third-degree burglary under paragraph (b). Shopping, accompanying another person, seeking assistance, using an in-store service, or entering by mistake is not burglary unless the theft element is proved.

Store evidence should show the item, ownership, price or value where relevant, concealment or control, movement, payment opportunity, and required intent. Self-checkout cases demand careful review of scan data, product codes, payment records, register video, screen prompts, and whether an error was intentional. Leaving the store is not invariably required for every theft theory, but it can be highly relevant to intent.

A qualifying conviction within the preceding five years

The statute requires a conviction within the preceding five years for one of the listed Minnesota offenses or a conforming offense from another state, the United States, or a foreign jurisdiction. The current list includes burglary, public-assistance fraud, unemployment-benefit fraud, simple or aggravated robbery, theft, mail theft, receiving stolen property, and specified financial-card, check, and fraud offenses.

The prosecutor must prove more than a criminal-history printout. Counsel should verify the statute of conviction, judgment date, offense and disposition, jurisdiction, and whether a non-Minnesota offense truly conforms to one of the listed statutes. An arrest, dismissed charge, or ordinance violation is not automatically a qualifying conviction.

The sentence on the prior case also matters

Paragraph (b) requires that the person received a felony sentence for the prior offense or a sentence stayed under section 609.135 when the offense to which the plea was entered would allow a felony sentence. This language prevents every low-level prior theft from satisfying the enhancement.

Certified judgments, plea records, sentencing orders, and the statute in effect at the time are necessary. A misdemeanor sentence on an offense that could have been charged more seriously may not qualify. Conversely, a stayed felony disposition may qualify even without executed prison time. The inquiry is legal and document-specific.

The five-year calculation should be written out

Dates should not be estimated from a background report. The alleged current entry date and prior conviction date should be placed on a timeline. If the prior is from another jurisdiction, the record must establish both date and equivalence. A defect in either the conviction or sentencing element can reduce the allegation to fourth-degree burglary, trespass, theft, or another appropriate charge depending on the remaining facts.

Prior-record evidence creates prejudice

A qualifying prior is an element of paragraph (b), but telling a jury unnecessary details about a prior theft or robbery risks improper propensity reasoning. Counsel should address stipulations, redaction, bifurcation where legally available, limiting instructions, and the minimum evidence needed to prove the element. The jury’s task is to decide the current allegation, not punish a person again for the past.

What counts as entry without consent?

For paragraph (a), Minnesota recognizes three forms: physical entry without permission, entry obtained through trick or misrepresentation, and unlawful remaining after permission ends. A building open to the public generally supplies consent unless it was expressly withdrawn before entry. Paragraph (b) separately addresses a later entry after a leave-and-do-not-return instruction.

Consent comes from the person in lawful possession

The relevant person may be an owner, tenant, business operator, or another person legally entitled to possess the premises. Title is not always controlling. A property owner may lack permission to enter a tenant’s leased space; an employee’s authority may be limited to work areas and hours; one roommate may not control another’s private room.

Scope of permission

Permission to enter a lobby, store floor, or loading dock does not necessarily extend to a locked office, stockroom, roof, or computer room. But the State must prove the boundary. Signs, locks, barriers, employee policies, access credentials, and prior practices can show whether the accused knew or reasonably understood that the area was restricted.

Entry by trick or misrepresentation

Someone who falsely claims to be a repair worker, delivery person, inspector, or authorized employee may receive apparent permission yet enter without consent under the statutory definition. The alleged deception must obtain the entry. A false statement unrelated to access does not automatically invalidate otherwise lawful consent.

Remaining after consent ends

An invitation can be withdrawn. An employee can be directed to leave; a customer can be removed after closing; a guest can be told the visit is over. The evidence should establish a clear withdrawal, the person’s continued presence, and the timing of the alleged independent crime. An argument or awkward social cue is not necessarily an unmistakable revocation.

Partial bodily intrusion can be entry

Munger recognized that intrusion of any body part, including a hand through a window to move a curtain, can satisfy entry. The court described the physical rule before resolving the separate intent question. Doorbell footage, broken screens, window position, fingerprints, and the threshold shown in video can therefore be decisive even when the accused never placed both feet inside.

A tool alone and the threshold

Whether inserting an object without bodily intrusion constitutes the alleged entry can involve additional legal and factual analysis, including how the object was used and the precedent applicable to the charged theory. The complaint should specify the act. Counsel should not concede “entry” merely because an object touched the interior side of a door or window.

The independent-crime requirement

Burglary requires an offense beyond the trespass that supplies nonconsensual entry. The State cannot say the crime intended inside was simply the unlawful entry itself. Paragraph (a) narrows the qualifying independent crimes to theft, felonies, and gross misdemeanors. Paragraph (b) requires theft.

State v. Colvin and double use of the entry

In State v. Colvin, 645 N.W.2d 449, 452–56 (Minn. 2002), the Minnesota Supreme Court held that intent to violate the no-entry term of an order for protection did not establish the independent crime for burglary. The no-entry violation already supplied the unlawful entry. Read the official opinion.

A separate no-contact violation, property damage, assault, theft, or another qualifying offense may present a different issue when supported by evidence. Colvin requires the prosecution to identify conduct independent of entry and prove its legal elements.

The jury needs the definition of the alleged offense

A charge stating only “intent to commit a felony” leaves the fact-finder without a legal measure. Jury instructions should name and define the alleged theft, felony, or gross misdemeanor. If the prosecution presents alternatives, unanimity and verdict-form questions should be addressed before deliberations.

Claim of right and theft intent

A genuine belief that property belongs to the accused can negate the intent required for some theft theories, though self-help entry may still be unlawful and other offenses may apply. Ownership records, receipts, messages, separation agreements, workplace policies, and the person’s conduct can support or contradict the claim. The defense should distinguish a bona fide ownership dispute from a fabricated excuse.

Defenses to third-degree burglary

The strongest defense depends on the paragraph. A paragraph (a) case may turn on consent or the level and location of the independent crime. A paragraph (b) case may fail because the notice was unclear or expired, the prior record does not qualify, or theft intent cannot be proved.

Consent or authorized access

Keys, codes, job duties, leases, messages, work orders, past practice, and witness testimony may establish permission. The defense should define its scope: who authorized entry, for which area, at what time, and for what purpose. Physical ability to enter is not the same as legal consent, but possession of a working credential can corroborate an authorization claim.

No theft, felony, or gross-misdemeanor intent

Trespass is not automatically burglary. A person may enter to retrieve belongings, seek help, perform work, shelter from danger, or mistakenly use the wrong door. Objective evidence such as messages, tools appropriate for lawful work, immediate explanation, and lack of concealment can create reasonable doubt about criminal purpose.

The independent crime was only a simple misdemeanor

Under paragraph (a), a simple misdemeanor other than theft does not satisfy third-degree burglary. If the State proves intent to commit only such an offense, fourth-degree burglary or another charge may be the proper classification. The court must determine the grade from the statute governing the independent offense.

The alleged crime was not intended or committed inside

Paragraph (a) expressly ties the theft, felony, or gross misdemeanor to the building. If the evidence shows only an unrelated outside offense, the third-degree element may fail. The defense should insist that the jury instruction preserve the words “while in the building.”

Insufficient reentry notice

For paragraph (b), the State must prove a direction to leave and not return. A warning issued to another person, a notice for a different store, a temporary request to leave, an unsigned database entry, or a message never delivered may be insufficient. Video and the original form are more reliable than a later summary.

Notice older than one year

An otherwise valid notice does not satisfy paragraph (b) if the alleged entry occurs outside the statutory one-year period. The calculation should use exact dates and any legally relevant time rules. A company policy claiming a longer ban cannot extend this criminal element.

No qualifying prior conviction or sentence

The alleged prior may be outside five years, not on the statutory list, nonconforming, dismissed, or followed only by a nonqualifying misdemeanor sentence. Certified records are essential. The defense can challenge legal equivalence of out-of-state offenses because similar names do not guarantee comparable elements.

No theft intent in the public building

A person may violate a trespass notice without intending theft. Payment mistakes, forgotten merchandise, confused self-checkout, return disputes, and another shopper’s actions can be misread. Full register data, video, receipt history, product codes, and conduct after being approached help distinguish mistake from intent.

Mistaken identity

Commercial video may show a hat, coat, or vehicle rather than a face. Store trespass databases can contain misspellings, merged profiles, poor photographs, and outdated identifiers. Facial comparison by a lay witness, license-plate evidence, and account records should be tested against original files and corroborating evidence.

No accomplice liability

Accompanying a person who steals does not automatically establish intentional aid. The State must prove the accused knew the crime’s essential nature and intentionally assisted it. Shopping together, driving, or standing nearby can be innocent. The timing of any aid and communications is central.

Suppression of evidence

Police searches of phones, vehicles, homes, or bags require lawful authority. Custodial interrogation and identification procedures must comply with constitutional rules. Private store employees are generally not government agents, but coordinated conduct can raise fact-specific issues. The remedy depends on the source of the violation and the evidence obtained.

Evidence that should be preserved

• Complete surveillance: all cameras, normal-speed footage, the period before entry, movement inside, checkout, exit, and any stop.
• Access records: keys, codes, fobs, alarm events, door sensors, employee schedules, and building-management logs.
• Consent evidence: leases, work orders, messages, trespass notices, delivery records, store policies, and prior access practice.
• Retail transaction data: register journals, self-checkout logs, product codes, payment authorization, receipts, returns, and loyalty-account history.
• Prior-notice proof: original warning, signature or refusal, body camera, security audio, delivery method, photograph, covered location, and duration.
• Prior-conviction records: certified complaint, plea or verdict, judgment, sentencing order, offense statute, and foreign law where applicable.
• Property evidence: ownership, serial numbers, price, recovery location, condition, and chain of custody.
• Digital location: phone, vehicle, navigation, parking, and account data, interpreted with their accuracy limitations.
• Witness statements: 911 audio, body camera, first reports, interviews, and any discussion among witnesses before formal accounts.

Demand native video, not a phone recording of a monitor

Exported native files preserve timestamps, frame rate, resolution, and sometimes camera identifiers. A phone video of a security screen can omit frames, crop the scene, or create misleading timing. The defense should obtain retention policies, export logs, and the unedited sequence from every relevant angle.

Store databases are evidence, not self-authenticating truth

A loss-prevention system may record a trespass notice, prior incident, photograph, or name. The defense should determine who entered the data, when, from what source, and whether the system tracks amendments or deletions. A database flag does not itself prove that a legally sufficient warning was communicated.

Digital location has limits

Cell-tower records generally show a coverage area, not entry through a particular door. GPS can be more precise but may reflect a device left in a vehicle or carried by another person. Account use can show activity without proving who held the phone. Location evidence should be corroborated rather than overstated.

Statements to police or store security

A person may want to explain a checkout error or permission immediately. An anxious guess can later appear inconsistent with video or records the person has not seen. A person can identify evidence needing preservation while declining a detailed recorded interview until receiving legal advice. No one should fabricate an explanation or ask a witness to change an account.

Preserve; do not erase

Do not delete messages, reset a device, dispose of property, alter a receipt, or manipulate video. Preservation allows counsel to assess favorable and unfavorable evidence accurately. Destruction can lead to a separate allegation and make an innocent explanation appear dishonest.

Penalties and Minnesota Sentencing Guidelines

Both paragraphs authorize up to five years in prison and a $10,000 fine. The statutory maximum does not dictate the presumptive sentence. The current Minnesota Sentencing Guidelines offense-severity table ranks traditional third-degree burglary under subdivision 3(a) at severity level 4 and the public-building reentry offense under subdivision 3(b) at severity level 3.

Criminal-history score

The presumptive grid cell depends on the offense severity and the defendant’s criminal-history score. The score can include prior felonies, custody status when applicable, certain misdemeanors and gross misdemeanors, and juvenile points under detailed rules. Out-of-state offenses, decayed convictions, multiple sentences from one event, and custody status should be verified rather than estimated.

The prior conviction can matter twice in paragraph (b)

A prior offense is an element of subdivision 3(b) and may also affect the criminal-history score, subject to the Guidelines. That does not automatically create unconstitutional double punishment; offense elements and sentencing history serve different legal functions. But the record, timing, and scoring rules must be applied correctly.

Multiple convictions and sentences

A case may include burglary, theft, trespass, receiving stolen property, damage to property, or another independent offense. Minnesota law limits multiple convictions for the same offense or included offenses and can restrict multiple sentences for a single behavioral incident, subject to exceptions. The court must examine elements, time, place, and criminal objective.

Restitution

Restitution may cover loss directly caused by the offense, including stolen property, entry damage, or eligible expenses. The amount is not established solely by a retail price tag or owner’s estimate. The defense may challenge ownership, fair value, depreciation, recovery, insurance, duplication, repair necessity, and causation through the statutory procedure.

Probation and collateral consequences

A felony sentence may include an executed prison term or a stayed sentence with probation, depending on the Guidelines and lawful departure analysis. Conditions can include jail, restitution, treatment, no contact, exclusion from locations, or other requirements. A conviction also affects employment, housing, professional licensing, firearm eligibility, and future criminal history.

Immigration consequences

Noncitizens should obtain individualized immigration advice before a plea. Burglary, theft intent, the sentence imposed or authorized, and the record of conviction can carry significant federal consequences. A state disposition that avoids prison may still be damaging under immigration law.

Evidence-driven negotiation

Potential resolutions can include dismissal, fourth-degree burglary, trespass, misdemeanor or felony theft, receiving stolen property, or another offense, depending on proof and prosecutorial discretion. A persuasive defense presentation identifies the missing element—consent, inside-the-building intent, notice, one-year timing, qualifying prior, sentence, theft intent, identity, or accomplice aid—and supports it with original evidence.

The court process

A third-degree burglary case ordinarily begins by complaint, summons, or arrest. At the first appearance, the court addresses counsel, release, and conditions. Conditions may prohibit entry into a business or property, forbid contact, restrict travel, or require monitoring. Violating a condition can produce detention or another charge even if the burglary allegation is disputed.

Discovery may include surveillance, access logs, forensic reports, phone extractions, register data, trespass notices, certified prior convictions, statements, and search warrants. Pretrial motions may challenge probable cause, searches, statements, identification, prior-record proof, accomplice liability, the independent-crime instruction, or the legal sufficiency of paragraph (b).

At trial, the State bears the burden on every element beyond a reasonable doubt. The verdict form and instructions should identify paragraph (a) or (b), the form of entry, the independent crime, and all enhancement facts. A jury should not convict because a person has a prior record or violated a store rule; it must decide the current statutory elements from admissible evidence.