Trespassing

Trespass arrests come in all shapes and sizes. There’s Trespass to a Structure, Trespass to a Conveyance (i.e. car), “Armed” Trespassing, Trespass to a Construction Site, and Trespass on School Property. Trespass is the kind of criminal charge that can sneak up on an unsuspecting innocent citizen. Be careful. For those of you arrested for trespass, you know exactly what I’m talking about. But, never fear, there are plenty of ways to attack a trespass accusation, so feel free to call criminal Orlando trespassing lawyer John Guidry anytime to discuss the situation. Here’s a few things you should know.

Definition of Trespass

Trespass is found in Section 810.08(1), Florida and states that:

Whoever, without being authorized, licensed, or invited, willfully enters or remains in any structure or conveyance, or, having been authorized, licensed, or invited, is warned by the owner or lessee, to depart and refuses to do so, commits the offense of trespass in a structure or conveyance.

Ok, so what does “willfully” mean? As used in the trespass statute, “Willfully” refers to a general intent and merely means that the entry or remaining be intentionally, knowingly and purposely done. Rozier v. State, 402 So. 2d 539 (Fla. 5th DCA 1981). But also watch out for the proof on the element of “warning”. The “warning” element is easy to prove in a posted “No Trespassing” sign case, but it’s not so simple when the person is present at a public place, such as a store or mall. For more details on the adequacy of trespass warnings in a public place, check out my article “Mall Security, Flexing Their Muscles“.

The Classic “Do Not Return” Command

Many trespass cases arise out of a situation in which someone is told to leave, yet fails to do so within the time frame expected. However, just because you’ve been told to leave once, doesn’t necessarily mean that the crime of trespass is committed the next time you step foot on that same property. In can mean that, of course, depending upon the type of warning given initially. But, in the case of K.J. v. State of Florida, K.J. was convicted of trespass because he was in a public park after it closed. 107 So.3d 523 (Fla. 4th DCA 2013). Now, K.J. seemed to be aware that this could be a problem, because when the police showed up and asked him to approach, K.J. took off running. Believe it or not, one in shape officer was able to catch this running juvenile. The officer then told K.J. to “stay out of the park” and “don’t come back.”

Now, do you think K.J. listened to this advice? No, of course not. So, K.J. found himself arrested the next day when he returned to the park, figuring the same officer from the night before wouldn’t be around the next day. Fortunately, the appeals court overturned the conviction, reasoning that the officer had no right to tell K.J. to not return the next day, holding that the “officers did not see the juvenile engaging in any activity while the park was closed which justified warning him to ‘stay out of the park’ while the park was open.” id. Thus, when the “Do Not Return” warning is found to be invalid, the subsequent trespass will be struck down. For more information on this case, check out my article “Trespassing Case Overturned“.Trespass to a Conveyance (Car)

So, let’s say your friend invites you for a ride in his new car (which happens to be stolen, but you don’t know it). What elements must be proven to convict on this Trespass to a Conveyance accusation? Florida Standard Jury Instruction 13.3 shows that the State must prove the following three elements beyond a reasonable doubt:

1. The defendant willfully entered the conveyance.
2. The conveyance was in the lawful possession of the victim.
3. The defendant’s entering in the property was without the permission, express or implied, of the victim, or any other person authorized to give that permission.

Permission to enter a conveyance need not be given in express words, It can be implied from the circumstances. It is lawful to enter a conveyance of another if, under all of the circumstances, a reasonable person would believe that she had the permission of the owner or occupant. And that’s the key to these cases, the fact that any person asked to ride along in a friend’s new car would go ahead and do it, it’s reasonable to do so. However, if the car has a broken window, or an ignition that is rigged, you’re in trouble. Any obvious sign that the car has been stolen may render your presence in the vehicle to be ‘unreasonable’. In P.W. v. State, 730 So. 2d 422, 423 (Fla. 5th DCA 1999), the court reversed a ‘conviction’ for trespass in an occupied conveyance because the State merely proved that the car was stolen and that the defendant was a passenger in the car, but failed to prove that the defendant knew or should have known the vehicle was stolen. See also J.D. v. State, 604 So. 2d 936, 937 (Fla. 3d DCA 1992) (a case where the court also hinged its decision on the fact that the defendant knew the vehicle was stolen).

Many trespass cases involve the protected free speech rights we all enjoy under the Constitution, clashing with private property owner’s right to conduct peaceful commerce. Consider, for example, a shopping mall’s desire to ban peaceful protesters for fear of scaring away customers, with their right to free speech in what can be considered a ‘quasi-public’ place (though, technically, a mall is private property). A stand alone store like Wal-Mart may have more of a right to trespass a citizen than a shopping mall, because a shopping mall is considered more ‘public’ than a stand alone store (regardless of it’s size). These issues are so fact sensitive, that you should call criminal attorney John Guidry with any questions regarding such an arrest. The call is free, so you’ve got no cash loss here, only knowledge to gain.

Trespass to a Construction Site

Trespass to a Construction site can be difficult to prove, as this felony version of trespass adds several important elements, specifically, sign posting requirements which depend upon the size of the construction site. If the construction site is greater than 1 acre, the sign should say something like “THIS ARE IS A DESIGNATED CONSTRUCTION SITE AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY”. If the construction site is less than one acre, then a sign must be posted (in letters not less than 2 inches tall) stating something like “THIS AREA IS A DESIGNATED CONSTRUCTION SITE, AND ANYONE WHO TRESPASSES ON THIS PROPERTY COMMITS A FELONY”. This sign must be posted where the building permits are posted.

But the basic addition here is that the construction site must be “legally posted”. So, what does that mean? Section 810.011(5)(a), Florida Statute, defines posted land as land upon which signs are placed not more than 500 feet apart along, and at each corner of the boundaries, and upon which signs there appears prominently in letter not less than two inches in height, the words “no trespassing” and the name of the owner.

Speak With a Legal Professional

There are exceptions to the above definition depending upon the size of the property and whether or not a dwelling is located somewhere on the land. Call an Orlando trespassing lawyer to discuss your particular facts.