A new case was handed down by the Utah Supreme Court last week, Utah v. Machan, which addresses the interesting issue of whether one can burglarize one’s own home. Machan was arrested and escorted out of his home by police officers. He was forced to take up a new residence after his wife got a restraining order against him which prohibited from going to the home to see his wife or his kids. The restraining order lasted for 150 days. Three days after the restraining order terminated Machan decided to go into the home and wait for his wife and kids to return. He barricaded the door and waited with a .22 rifle. When his wife and kids arrived home his son saw that his father was in the home with the gun and so yelled at his mom to flee. Machan’s older son was able to force his way into the home and disarm his father. The police were called and Machan was arrested and charged with various crimes include aggravated burglary.
At the preliminary hearing, the judge found that there was not sufficient evidence to find that the burglary charge should be bound over for trial because the prosecutor did not meet his burden of showing that Machan had relinquished his right to enter the home. The Utah Supreme Court agreed with the trial court.
Under Utah Code 76-6-202(1) a person is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit a felony. Based on this statutory language, the Utah Supreme Court focued on “whether Mr. Machan surrendered his possessory rights to the family home prior to his entry and alleged assault.” Whether a person has the privilege to enter into property is not determined simply by ownership. Instead, it is determined by whether the person had occupancy or possessory rights at the time the entry was made. For cotenants of property (people who live together) whether one of the cotenants has the exclusive right to possess the property is based on principles of contract law. Under Utah contract law, a cotenant gives up his rights to possess property only if he does so voluntarily. One spouse cannot unilaterally revoke the right of the other spouse to possess the marital home.
The Utah Supreme Court found that Machan did not voluntarily relinquish his rights and that the state did not provide any evidence to the contrary. Machan was forced from his home through a court order, not by his own choice. Based on this involuntarily removal from his home, he could not be found to have burglarized his home because there was no evidence that he gave up his possessory interest, so he was not there “unlawfully” at the time of the incident.