concurring in part and dissenting in part.
The leading case entitling defendants to judicial review of the sufficiency of evidence used an apt example: "Under our system of criminal justice even a thief is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." Jackson v. Virginia, 443 U.S. 307, 323-24, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The "constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless." Id. at 323, 99 S.Ct. 2781.
Whatever else may be said of these two bounty-hunting defendants, they were not proven burglars. I would uphold their felony menacing convictions but reverse their burglary convictions.
A. The Atypical Colorado Burglary Statute Requires Proof Defendants Subjectively Knew Entry Was Unlawful.
The trial court, without objection, instructed the jury that burglary required proof that defendants "knowingly unlawfully entered or remained unlawfully" in another's residence. This adverbial juxtaposition is highly atypical. Only for the rarest of crimes must defendants have known their actions were unlawful. See Cheek v. United States, 498 U.S. 192, 199-200, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991); People v. Holmes, 959 P.2d 406, 414 (Colo.1998).
The requirement of proof defendants knew the unlawfulness of their entry is rooted in Colorado burglary statutes. § 18-4-2083(1), C.R.S.2008 (second degree burglary statute applying where defendant "knowingly breaks an entrance into [not charged here], enters unlawfully in, or remains unlawfully" in a building with intent to commit a crime therein); see also § 18-4-202(1), C.R.S.2008 (similar first degree burglary statute with additional elements). The People concede "knowingly" extends to "enters unlawfully" and modifies both words, requiring proof defendants knew their entry was unlawful.
Review of other jurisdictions burglary statutes confirms this Colorado requirement is atypical. The Model Penal Code (MPC) contains »o scienter requirement as to the entry: it defines burglary to occur where one "enters a building or occupied structure ... with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." MPC § 221.1(1). Thus, under the MPC, as long as a defendant's purpose was to commit a crime inside, it is irrelevant whether a defendant believed the entry was authorized.
Most burglary statutes, like the MPC, make irrelevant a defendant's belief that entry was authorized. Thirty-four states and the District of Columbia impose no scienter element regarding entry. See Statutory Ap*897pendix part A to this opinion. Two other state statutes imposing a scienter requirement clearly suggest a defendant need not have known entry was illegal. See Appendix part B. In most remaining states it cannot readily be determined from the statutes whether such knowledge is required. See Statutory Appendix parts C & D. Only two other state statutes clearly suggest the prosecution must prove a burglary defendant knew the entry was illegal. See Statutory Appendix part E.
Prior Colorado burglary statutes, like most other states' statutes, did not require proof of knowingly unlawful entry. See Ch. 121, see. 1, § 40-4-2083(1), 1971 Colo. Sess. Laws 427 (formerly covering one who "knowingly breaks an entrance into, or enmtfers, or remains unlawfully in a building" with intent to commit crime therein) (emphasis added). In 1999, however, a divided supreme court held the former statute "require[d] proof that the defendant intended to commit a crime inside at the moment he first became a trespasser." Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999). The Colorado legislature promptly amended the statute to cover unlawful entries in which the intent to commit another crime was formed later, but for the first time added "unlawfully" after "enters." Thus, contrary to the model instruction under the former statute, it is no longer sufficient that a defendant "knowingly entered" the building, CJI-Crim. 14:03 (1983); rather, to be guilty of burglary, a defendant must have "knowingly entered unlawfully."
This atypical requirement usually is not significant, as defendants entering others' premises to commit crimes often will know they had no lawful right to enter. But where "the Government must prove that the defendant acted with knowledge that his conduct was unlawful," Ratzlaf v. United States, 510 U.S. 135, 137, 114 S.Ct. 655, 126 L.Ed.2d 615 (1994), a defendant who "truly believed" he was acting lawfully is not guilty "however unreasonable a court might deem such a belief" Cheek, 498 U.S. at 202, 111 S.Ct. 604. The "knowingly" requirement is not satisfied in Colorado just because a defendant reasonably should have known some fact or cireumstance. See People v. DeHerr-era, 697 P.2d 734, 740-41 (Colo.1985) (discussing § 18-1-501(5), C.R.98.2008); People v. Bornman, 953 P.2d 952, 954 (Colo.App.1997), followed in Auman v. People, 109 P.3d 647, 665 (Colo.2005).
B. The Trial Evidence Failed to Show Defendants Knew Their Entry Was Ilegal.
We accordingly must decide whether a jury properly could have found defendants subjectively knew their entry violated Colorado law. The "task is to determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt." People v. Dunlap, 124 P.3d 780, 819 (Colo.App.2004) (citing Jackson v. Virginia, and Colorado cases).
1. The Legal Problems
The main problem with finding defendants knowingly exceeded the legal limits on their bonding agent privilege is that those limits have not previously been established in Colorado. While the majority holds today a common law privilege exists in this State, it relies on a "necessity" requirement to limit when bonding agents are privileged to enter a home to effectuate recapture. But these defendants could not subjectively have known they were exceeding previously-unannounced limits on a common law privilege.
The majority discerns these limits from Supreme Court language that "if necessary, [bonding agents] may break and enter [an accused's] house" to "seize him and deliver him up in their discharge." Taylor v. Taintor, 16 Wall. 366, 83 U.S. 366, 371, 21 L.Ed. 287 (1872). Taylor did not elucidate the "if necessary" language, which may require no more than reasonableness. As Chief Justice Marshall wrote about the "necessary and proper" clause, U.S. Const. art. I, § 8, cl. 18:
Does [the word "necessary] always import an absolute physical necessity, so strong, that one thing to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the com-
*898mon affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.
McCulloch v. Maryland, 4 Wheat. 316, 17 U.S. 316, 413-14, 4 L.Ed. 579 (1819) (upholding congressional authority to establish a national bank). Other cases likewise recognize that the "word 'necessary'" does not always "refer to absolute necessity." Stenberg v. Carhart, 530 U.S. 914, 937, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000); see, e.g., Price v. Johnston, 334 U.S. 266, 279, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); Read v. Read, 119 Colo. 278, 285, 202 P.2d 953, 957 (1949).
Later cases have construed "the 'if necessary' qualification in Taylor" to require that bonding agents use "reasonable means." Lopez v. McCotter, 875 F.2d 273, 277 (10th Cir.1989). A reasonableness requirement is appropriate in a civil context but it muddies the issues under a criminal statute requiring proof of a knowingly unlawful entry. Indeed, in civil lawsuits against government agents for unreasonable searches or seizures, courts grant qualified immunity absent violation of "a clearly established Fourth Amendment protection." Saucier v. Katz, 533 U.S. 194, 207, 121 S.Ct. 2151, 150 LEd.2d 272 (2001). Not even that civil qualified immunity standard could be overcome here because the limits announced in the majority opinion were not clearly established-they did not even exist-in Colorado before today.
This area would benefit from legislative guidance. Absent such guidance, limits on bounty hunter rights to enter homes must be determined through common law adjudication. But due process confines courts applying common law rules retroactively and unforeseeably to criminal defendants. See generally Rogers v. Tennessee, 532 U.S. 451, 456-67, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) (discussing Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964)).
The Tenth Cireuit's Lopez decision, which overturned a bail bondsman's state conviction for attempted burglary, is illustrative. There, a New Mexico appeals court for the first time construed the Uniform Criminal Extradition Act (UCEA) to eliminate bondsmen's rights to recapture out-of-state fugitives without invoking extradition processes. The Tenth Circuit held this new construction could be applied prospectively a foreign bondsman must comply with the UCEA in seeking the rearrest of his principal" in New Mexico-but not "retroactively" in a criminal prosecution. 875 F.2d at 275-78 (citing Bowie and other due process cases). It concluded the bondsman lacked "fair warning that his conduct would be regarded as criminal." - Id. at 277-78.
Lopez highlights the constitutional problems where one judicial decision both articulates and then applies retroactively to a erim-inal defendant limits on the "very broad" common law privileges of bail bondsmen. Id. at 276-77. Here, we need not reach the constitutional issues because the Colorado burglary statute required proof defendants knew their entry was illegal. That proof cannot be supplied by violations of legal standards announced for the first time today.
2. The Factual Problems
The burglary convictions could not stand even if the privilege limits announced by the majority could be applied to these defendants. The majority recognizes defendants were privileged, under both common law and the bail contract, to enter an apparent bail-jumper's home to effectuate recapture. And it assumes defendants believed this home was that of suspected bail-jumper John Vigil. How, then, could defendants have known their entry of the Vigil residence was unlawful? The majority concludes they could have known it was illegal because it was "unnecessary."
The majority cites three bases on which defendants properly could be found to have known the entry was unnecessary and therefore illegal. In my view, these bases ultimately involve the unreasonableness of defendants' entry. Because criminal burglary convictions require proof defendants subjec*899tively knew their entry was illegal, proving an unreasonable entry cannot suffice.
The first basis involves the alleged prematurity of the entry: defendants entered the home their "first day on the job," after "conducting only one hour of surveillance," when their company still had ninety days to recapture Vigil without forfeiting bail. But there is nothing in the common law privilege or bail contract requiring bonding agents to wait for a prescribed period before entering a bail-jumper's home for recapture. Under Taylor, one bailed from jail "is regarded as delivered to the custody of his sureties," whose "dominion is a continuance of the original imprisonment." 88 U.S. at 371. At most, whether defendants acted precipitously affects the objective reasonableness of their actions, but not whether they subjectively knew they could not enter the home to reassert "dominion" over a suspected bail-jumper.
Second, the majority concludes the evidence sufficiently proved defendants knew Vigil was not then in the home: it faults defendants for not "conducting extensive surveillance," for not having "seen Vigil inside," and for inadequate efforts to phone him and his brother. This again goes to reasonableness-perhaps defendants should have done more to ensure Vigil was there-but fails to prove they knew he was not there. The majority also faults defendants for remaining inside after occupants said Vigil did not live there. But this has nothing to do with the initial entry, and defendants were not required immediately to accept Vigil's relatives' claims that contradicted Vigil's own bail papers.
Finally, the majority relies on defendants' using a "ruse" of claiming to be law enforcement officers to gain entry. We need not condone this deception to conclude it does not prove defendants knew they had no legal right to enter the home. Ruse or not, the legality of entry turned on the scope of a common law privilege. Because the limits on that privilege (particularly those involving necessity) were unsettled at the time of the entry, defendants could not have been proven beyond a reasonable doubt to have known they were exceeding those limits.
Defendants had no privilege to menace third parties, and so I would uphold their felony menacing convictions. And they may be subject to civil liability to the extent their entry of the home and interactions with its occupants were unreasonable. But the evidence was legally insufficient to prove defendants committed burglary, as defined in Colorado, by knowing they unlawfully entered or remained in the home. To paraphrase the Supreme Court, "even a [felony menace] is entitled to complain that he has been unconstitutionally convicted and imprisoned as a burglar." Jackson v. Virginia, 443 U.S. at 323-24, 99 S.Ct. 2781.
STATUTORY APPENDIX STATE BURGLARY STATUTES
A. NO SCIENTER ELEMENT AS TO ENTRY
Alaska Stat. § 11.46.310(a) ("enters or remains unlawfully")
Ariz. § 18-1507(A) ("entering or remaining unlawfully")
Ark.Code § 5-89-201(a)(1) ("enters or remains unlawfully")
Cal.Penal Code § 459 ("enters")
Conn. Gen.Stat. § 58a-102(a) ("enters or remains unlawfully")
D.C.Code § 22-801(a) ("break and enter, or enter without breaking")
Fla. Stat. § 810.02(1)(b)(1) ("{elntering" unless premises were open or defendant was licensed or privileged)
Ga.Code § 16-7-1(a) ("without authority ... enters or remains") Idaho Code § 18-1401 ("enters")
Ind.Code § 385-48-2-1 ("breaks and enters")
Iowa Code § 718.1 ("having no right, license or privilege to do so, enters")
La.Rev.Stat. § 14:62(A) ("unauthorized entering")
Md.Code, Crim. Law § 6-202(a) ("break and enter")
Mass. Gen. Laws ch. 266, § 14 ("breaks and enters")
*900Mich. Comp. Laws § 750.110(1) ("breaks and enters")
Minn.Stat. § 609.582(1) ("enters a building without consent")
Miss.Code § 97-17-23(1) ("breaking and entering")
Nev.Rev.Stat. § 205.060(1) ("enters")
N.H.Rev.Stat. § 685:1(1) (Centers" unless premises were open or defendant was licensed or privileged)
N.J. Stat. § 2C:18-2(a)(1) ("[elnters" unless structure was open or defendant was licensed or privileged)
N.M. Stat. § 80-16-38 ("unauthorized entry”)
N.C. Gen.Stat. § 14-54(a) ("breaks or enters")
Okla. Stat. tit. 21, § 1485 ("breaks and enters")
Or.Rev.Stat. § 164.215(1) ("enters")
18 Pa. Cons.Stat. § 3502(a) ("enters" unless premises were open or defendant was licensed or privileged)
RI. Gen. Laws § 11-8-2(a) ("break and enter" without consent)
8.C. Code § 16-11-312(A) ("enters a dwelling without consent")
S.D. Codified Laws § 22-32-83 ("enters or remains" unless premises were open or defendant was licensed or privileged)
Tenn. Code § 39-14-402(a)(1) ("[elnters" building not open to public without effective consent of owner)
Tex. Penal Code $ 30.02(a)(1) (Centers" building not open to public)
Utah Code $ 76-6-202(1) ("enters or remains unlawfully")
Va. Code § 18.2-89 ("break and enter")
Wash. Rev. Code § 94.52.080(1) ("enters or remains unlawfully")
W. Va.Code § 61-3-11(a) ("break and enter")
Wyo. Stat. § 6-8-801(a) ("without authority, he enters or remains")
B. SCIENTER REQUIREMENT DOES NOT APPLY TO UNLAWFULNESS OF ENTRY
720 III. Comp. Stat. 5/19-l(a) ("without authority he knowingly enters or without authority remains")
Kan. Stat. § 21-8715 ("knowingly and without authority entering into or remaining within")
C. UNCLEAR WHETHER SCIENTER REQUIREMENT APPLIES TO UNLAWFULNESS OF ENTRY OR ONLY TO REMAINING UNLAWFULLY
Ala. Code § 18A-7-6(a) ("knowingly enters or remains unlawfully")
Del. Code tit. 11, § 825(a) ("knowingly enters or remains unlawfully")
Haw. Rev. Stat. § 708-811(1) ("intentional-Ty enters or remains unlawfully")
Ky. Rev. Stat. § 511.080(1) ("knowingly enters or remains unlawfully")
Me. Rev. Stat. tit. 17-A, § 401(1)(&A) ("enters or surreptitiously remains in a structure knowing that that person is not licensed or privileged to do so")
Mont. Code § 45-6-204(1) ("knowingly enters or remains unlawfully")
N.Y. Penal Law § 140.25 ("knowingly enters or remains unlawfully")
D. OTHER UNCLEAR SCIENTER REQUIREMENTS
Neb. Rev. Stat. § 28-507(1) ("willfully, maliciously, and forcibly breaks and enters")
N.D. Cent. Code § 12.1-22-02(1) ("willfully enters or surreptitiously remains ... when at the time the premises are not open to the public and the actor is not licensed, invited, or otherwise privileged to enter or remain as the case may be")
Ohio Rev. Code § 2911.12(A) ("Itlres-pass"); see Ohio Rev. Code § 2911.21(A)(1) *901(defining "trespass" to include "[kInowingly enter[ing] or remain[ing]")
Wis. Stat. § 948.10(Im) ("intentionally enters ... without the consent" of lawful possessor)
E. PLAINLY REQUIRES KNOWLEDGE OF ENTRY'S UNLAWFULNESS
Mo. Rev. Stat. § 569.170(1) ("knowingly enters unlawfully or knowingly remains unlawfully")
Vt. Stat. tit. 18, § 1201(a) (Centers any building or structure knowing that he is not licensed or privileged to do so")