Criminal Trespass Laws
Being on someone else’s property without permission may seem like a small transgression, but it can lead to criminal charges. Trespass is often classified as a misdemeanor. Still, any criminal record can damage personal and professional opportunities. If you have been arrested for this offense, you should not try to talk your way out of the situation on your own. Whatever you say to law enforcement might work against you as the case proceeds. Instead, you should discuss your situation with an attorney who can explore any available defenses.
What Is Criminal Trespass?
Criminal trespass usually involves being on someone else's property without their permission.
Elements of Criminal Trespass
A prosecutor pursuing a conviction for criminal trespass usually needs to prove two main elements. First, the defendant must have been on someone else’s property without their consent or other authorization. This might involve entering a property with a No Trespassing sign, for example, or it might involve staying on the property after the owner told the defendant to leave. The prosecutor also must prove a culpable mental state. The defendant must have known that they were not allowed to be on the property, or that they were required to leave.
Some criminal trespass statutes target additional acts beyond the basic definition of this crime. For example, the Georgia statute also prohibits intentionally causing up to $500 in damage to someone else's property without their consent, as well as knowingly and maliciously interfering with the possession or use of someone else's property without consent. The Iowa statute also prohibits being on a property and wrongfully placing something there without the permission of the owner or occupant.
Example of Criminal Trespass
Phil gets drunk at a party at someone else’s home. The homeowner tells Phil that he needs to leave. If Phil refuses and stays on the property, this would be considered trespass.
On the other hand, consider a situation in which Phil is hiking across a field. There are no signs or barriers indicating that entry is forbidden, nor does Phil encounter anyone. Even if the owner of the field does not want people there, this likely would not be considered trespass because Phil did not have notice that his presence was not allowed.
Offenses Related to Criminal Trespass
Some other offenses that could be charged in situations similar to those supporting criminal trespass charges include:
- Burglary: could be charged if the defendant entered someone else’s property while intending to commit a crime there
- Arson: could be charged if the defendant set fire to someone else’s property after entering it without permission
- Assault and battery: could be charged if the defendant got into a fight with the property owner after being told to leave or not enter the property
Since criminal trespass tends to be a relatively minor crime, but also a relatively simple crime to prove, a prosecutor might negotiate with a defendant for a guilty plea to that charge in exchange for dropping more serious and more complex charges.
Defenses to Criminal Trespass
A defendant might avoid a conviction by arguing that they actually had consent from the property owner. Or perhaps they had another legal basis for being on the property. For example, perhaps they had an “easement,” which is a legal right to cross part of someone else’s land for a certain purpose. They also might claim that they did not know that they were not allowed to be on the property, especially if there were no signs or fences.
More general criminal defenses might apply as well. These could include mistaken identity, such as when security cameras capture a blurry image. If the property owner has a grudge against the defendant, they might be able to argue that they were falsely accused for this reason.
Penalties for Criminal Trespass
Some statutes prohibiting criminal trespass divide the crime into degrees according to the type of property. For example, Arizona provides that second-degree criminal trespass includes knowingly entering or remaining unlawfully in a non-residential structure or a fenced commercial yard, while first-degree criminal trespass includes knowingly entering or remaining unlawfully in a residential structure or a fenced residential yard. Second-degree criminal trespass carries up to four months of imprisonment. First-degree criminal trespass involving a fenced residential yard carries up to six months of imprisonment, while first-degree criminal trespass involving a residential structure generally carries 0.5-1.5 years of imprisonment, with a presumptive one-year sentence.
Third-degree criminal trespass in New York covers conduct such as knowingly entering or remaining unlawfully in a building or on property that is fenced or otherwise enclosed in a manner designed to exclude intruders. Second-degree criminal trespass covers conduct such as knowingly entering or remaining unlawfully in a dwelling. Third-degree criminal trespass carries up to three months in jail, while second-degree criminal trespass carries up to one year in jail. (First-degree criminal trespass, which is a felony, covers limited situations involving firearms and other deadly weapons.)
States such as Georgia and Michigan take a simpler approach. Each of these states classifies nearly all forms of criminal trespass as a single misdemeanor offense. A conviction in Georgia carries up to 12 months of imprisonment, while a conviction in Michigan carries a maximum jail term of 30 days.
