Criminal trespass is a crime that is generally understood in theory. Most people understand that if they walk onto property that is not theirs against the explicit, vocal wishes of the property owner that they are trespassing. Similarly, ignoring a “no trespassing” sign is also obviously trespassing. However, the laws surrounding trespassing are not as black and white as they seem on the surface.

Cornell Law School cites 25 CFR § 11.411 as the federal statute addressing criminal trespass. Under this statute there are three ways an individual can be found to have committed criminal trespass if the accused knowingly does the following:

• “enters or surreptitiously remains in any building or occupied structure”
• “enters or remains in any place as to which notice against trespass is given by:
  • (1) Actual communication to the actor; or
  • (2) Posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or
  • (3) Fencing or other enclosure manifestly designed to exclude intruders.”
• “defies an order to leave personally communicated to him or her by the owner of the premises or other authorized person.”

What this means in simple terms is that criminal trespass requires two basic elements: being somewhere the individual shouldn’t, and knowing that they are not supposed to be there.

While some clients may be inclined to use the defense of ignorance to defend against a criminal trespass charge, this would not be a winning strategy. Most prosecutors who press trespass charges will simply need to demonstrate that there was some prominently displayed “No Trespassing” sign or produce witnesses who attest that the defendant was asked to leave.

There are exceptions to trespass laws. One option to avoid criminal trespass charges is to combat them directly. If a client is accused of trespassing on privately held grounds but actually stayed on public grounds. These cases typically occur when no building was entered and it is a question of whether a property line was crossed.

Another defense to criminal trespass is a necessity. If an individual enters a store outside of business hours, that is likely trespass. If the individual entered the store to take shelter from a hurricane, blizzard, or another life-threatening phenomenon, then the defense of necessity may outweigh the disaster. This defense will expose the individual to any civil penalties stemming from damages to the location, however.

The best defense to criminal trespass is to avoid it entirely. Some easy steps to avoid trespassing charges are the following:

• Be aware of any “no trespassing” signage or fenced off areas
• If asked to leave the property, do so quickly and respectfully
• Avoid any place where it feels like it may be private property without authorization
• Always seek to acquire permission from an individual or group before entering property held by that entity.

Above all, always be sure to obey local regulations and laws. If you are arrested or fined for trespassing, contact an attorney to review your best options.