Civil vs. Criminal Trespass

Civil Trespass

Trespass is an unauthorized entry upon the land of another.  Trespass can be committed by anyone, including police officers and customs officers. Law enforcement personnel acting within the course of their duties may be excused under some circumstances from what would otherwise be trespassing acts.

If there are damages that result from a trespass, a civil cause of action can be brought against the trespasser.

Criminal Trespass

Criminal trespass is one of the most common criminal cases.  Someone charged with robbery and burglary, for instance, can be convicted of criminal trespass, since it is a lesser included offense of burglary. Probable cause that a person has committed criminal trespass is often the reason that someone is arrested.

Then, in the process of that arrest, an investigation reveals a larcenous intent, or a search reveals drugs or other evidence of crimes.  The lawfulness of the original arrest for trespass is therefore crucial since if it was not a lawful arrest, the evidence subsequently found can be suppressed.

The criminal trespass statutes in New York protect “premises” and “real property.”  The laws define “premises” to mean any building, or place where business is carried on.  But the definition also includes any other structure, like a car or boat, if used for overnight lodging, as well as schools and trucks.

How Does the Government Determine a “Trespass?”

The laws prohibit unlawful “entering” or “remaining” on such premises, absent a license or privilege to do so. You’re not trespassing unless you “knowingly” enter or remain on the premise. All public buildings impliedly give you a license and privilege to enter and remain.

Similarly, public retail establishments, or ticketed events, invite customers to enter if someone authorized by the building owner orders you not to enter, or not to remain, that you are trespassing.

There is also an implied license and privilege to enter into any apparently unused land unless it is enclosed to exclude intruders, like by a fence, or “no trespassing” signs conspicuously warn against entry.

Trespassing on School Grounds

Schools have slightly different rules.  The presumption is that you do not have a license or privilege to enter or remain in a school.  You need written permission, or a relationship involving responsibility for a student, or a legitimate business purpose relating to the school.

Degrees of Criminal Trespass in New York

The issue of the degree of trespass is important since simple criminal trespass is just a violation. A police officer can neither arrest nor temporarily detain a person for committing a violation – only tickets are issued for violations. The person cannot be searched, and if they are, and evidence of a crime is found, that evidence must be suppressed.

There are three degrees of criminal trespass in New York that can result in arrest:

• Criminal trespass in Third degree. 

Is when you knowingly enter a building, or land that is fenced in, which is used as an elementary or secondary school or children’s camp, or public housing project, and there is a “no trespassing” sign conspicuous posted.  Or you are told to leave a secondary or elementary school, or public housing project, by someone in charge.  This is a class B misdemeanor.

• Criminal trespass in the Second degree 

Is when you enter or remain unlawfully in a dwelling, or you are a registered sex offender entering a school that your former victim attends.  This is a class A misdemeanor.

• Criminal trespass in the First degree 

Is when you trespass while you know that you, or another participant in the crime, possesses an explosive, or firearm and ammunition.  This is a class D felony.

Simple Trespass

If a building is owned by a private landlord, not part of a public housing project or school, and not a dwelling, unlawful entry is just a violation, “simple trespass.” Entering land which is fenced and has “no trespassing” signs conspicuously posted is simple trespass.

Police officers who see a defendant, running from them, jump over a fence into a closed lot, have probable cause to believe the defendant is committing a trespass.

Third Degree Trespass

Places where there are young children, and public housing projects, are given special protection. If a police officer has probable cause to believe you have committed a trespass in the third degree, you can be arrested, and searched.

The rules with regard to schools:

• If you are at an elementary school or secondary school, or a children’s camp, without license or privilege to be there, it is trespass in the third degree.

• If you are told to leave school and don’t, it is trespass in the third degree.

The rules with regard to public housings:

• Public housing projects, like those owned by the New York City Housing Authority (NYCHA), were considered open to the public until 1992 when the legislature added the crime of criminal trespass in the third degree. That law specifically prohibits trespassing in public housing projects.
• If a person does not reside in the building and is not visiting a resident of the building, it is trespassing to be there, even though the building is “public property.”  It doesn’t matter whether the person is in a public part of the building, a common space, or the dwelling area.

• If they are in a staircase, or a community room, where people do not reside, it is trespass in the third degree, a class B misdemeanor.

The rules with regard to dwelling area:

• If they are in the dwelling area, it is trespass in the second degree, a class A misdemeanor.
• It is standard practice for police officers to enter public housing projects to conduct floor by floor patrols of the premises searching for loiterers, drug users, people consuming alcohol, and trespassers. The police officers question those they encounter to determine whether they are on the premises lawfully.

• They may request identification, or a key, to separate trespassers from legitimate visitors.  If they’re told the person is visiting, they will go to the apartment allegedly visited and seek corroboration.

What Questioning is Permitted by Police Officers

The rules for police contact with civilians were set forth in People v. De Bour. That case established a four-tier, common-law analysis of police-civilian encounters.

• Level one 

Allows an officer to approach an individual and inquire about basic, non-threatening matters such as name, address, and destination. This is known as a “request for information.” The police must have an articulable reason for the questioning, but the idea need not be indicative of criminality.

• Level two 

The police officer’s questions can focus on the possibility of criminality.  This is known as the “common-law right to inquire,” and requires that an officer have a “founded suspicion that criminal activity is afoot.”

• A level three 

Contact, allows the police to stop and detain a person when the officer has reasonable suspicion that the person is committing, committed, or is about to commit, a crime.

A level three contact authorizes an officer to frisk a person for weapons where he reasonably suspects that there is a danger of physical injury.

• Level four 

Permits the police to take into custody and arrest a person when he has probable cause to believe the person has committed a crime.

What if the Public housing project has a history?

The police must have some objective, credible reason to request information about a person’s residency.  Officers cannot question someone based on presence alone.  But if there is a prior history of criminality in the building, they have a reason to inquire.

Police officers patrol public housing developments, like the Polo Grounds in New York City, because they are in high crime areas known for violence and drugs. When a public housing project has a history of drug activity, the police may approach a person standing in the vestibule, and question them about residency, and ask for identification.

The person’s mere presence in the public housing building known for drug activities is sufficient to justify an officer’s inquiry into whether the individual is there lawfully. They can arrest someone for criminal trespass if they don’t live there and aren’t visiting someone. If they don’t, there is probable cause to arrest them for criminal trespass and conduct a search of their person.

Second Degree Trespass

A defendant is guilty of criminal trespass in the second degree if, without permission, the defendant knowingly and unlawfully enters a dwelling.  It is a dwelling, even if it is temporarily unoccupied, if the owner or his guests use it for overnight lodging, though just during warmer months.

The stairwell of a building, separated from the lobby, is for the use of residents and guests only, and failure to be a resident or guest can properly result in arrest for criminal trespass. If a dwelling is not entered, entry onto private property, which is not fenced or enclosed to exclude intruders, is not criminal trespass in the second degree, which is a crime. It may still be trespassing, which is a violation.

A license or privilege to enter or remain in a building extends to the public parts of the building and does not extend to parts of the building not open to the public.

Trespass in the First Degree

The difference between trespass in the first degree and the other trespass statutes is that the person is in possession of a firearm and ammunition, or an explosive device.

Summation

The trespass laws differentiate between simple trespass, which is just a violation, and trespass in places where special protection is needed, like schools, public housing, and dwellings.  Trespass crimes are often lesser included crimes in robbery and burglary, and easier to prove, since they do not require proof of larcenous intent at the time of entry.

Trespass laws are often the basis upon which police officers can question people, and the possibility of criminal trespass can result in a level two or level three inquiry, which can be much more intrusive.  When it can be shown that a level two or level three inquiry was unjustified, any fruits of those inquiries can be suppressed.

Therefore, disproving the presence of the elements of the trespass crime is often critical to the defense of more serious crimes.

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[1] For discussions, see, e.g., People v. Lee, 78 Misc.2d 1020, 357 N.Y.S.2d 805 (Sup Ct Bronx Co 1974).

[2] Hand v. Stray Haven Humane Socy. & S.P.C.A., Inc., 21 A.D.3d 626, 799 N.Y.S.2d 628 (3d Dep’t 2005).

[3] Hand v. Stray Haven Humane Socy. & S.P.C.A., Inc., 21 A.D.3d 626, 799 N.Y.S.2d 628 (3d Dep’t 2005).  Such a claim often arises as a result of an unlawful police search, or an environmental pollution case.

[4] People v. Hughes, 287 A.D.2d 872, 732 N.Y.S.2d 122 (3d Dep’t 2001).  People v. Degnan, 168 A.D.3d 1224, 91 N.Y.S.3d 804 (3d Dep’t 2019).

[5] See, e.g., Matter of Troy F., 138 A.D.2d 707, 526 N.Y.S.2d 521 (2d Dep’t 1988).

[6] CPL § 140.00(1), CPL § 140.00(2)

[7] CPL § 140.00(5)

[8] CPL § 140.05.

[9] People v. Watts, 32 N.Y.3d 358, 116 N.E.3d 60, 91 N.Y.S.3d 769 (2018).

[10] The statute still uses the archaic 19th-century spelling, “enclosed.”

[11] Then a search incidental to the arrest is lawful.  Matter of Troy F., 138 A.D.2d 707, 526 N.Y.S.2d 521 (2d Dep’t 1988).

[12] Matter of Victor M., 9 N.Y.3d 84, 876 N.E.2d 1187, 845 N.Y.S.2d 771 (2007).

[13] CPL § 140.15(1)

[14] People v. Williams, 175 A.D.2d 338, 572 N.Y.S.2d 416 (3d Dep’t 1991).

[15] People v. Velasquez, 217 A.D.2d 510, 630 N.Y.S.2d 303 (1st Dep’t 1995).

[16] CPL § 140.10(e).

[17] People v. Delossantos, 32 Misc.3d 865924 N.Y.S.2d 258 (Crim Ct. City of New York 2011).

[18] 40 NY2d 210 (1976).

[19] People v. Ventura, 30 Misc.3d 587, 913 N.Y.S.2d 543 (Sup Ct NY Co 2010).

[20] People v. Hill, 150 A.D.3d 627, 57 N.Y.S.3d 14 (1st Dep’t 2017).

[21] People v. Hill, 150 A.D.3d 627, 57 N.Y.S.3d 14 (1st Dep’t 2017).  Some courts have held that if the answers provided by the suspected trespasser do not reasonably infer some criminality – if they are honest answers – or even no answers at all – trespass cannot be inferred.  People v. Ruiz, 15 Misc.3d 1135(A), 841 N.Y.S.2d 822 (Sup Ct Bronx Co 2007).

[22] People v. Degnan, 168 A.D.3d 1224, 91 N.Y.S.3d 804 (3d Dep’t 2019).

[23] People v. Rodriguez, 159 A.D.2d 201, 552 N.Y.S.2d 13 (1st Dep’t 1990).

[24] People v. Rodriguez, 159 A.D.2d 201, 552 N.Y.S.2d 13 (1st Dep’t 1990).

[25] Matter of Troy F., 138 A.D.2d 707, 526 N.Y.S.2d 521 (2d Dep’t 1988).

[26] People v. Degnan, 168 A.D.3d 1224, 91 N.Y.S.3d 804 (3d Dep’t 2019).