Criminal Trespass

The common law crime of criminal trespass generally consists of two basic elements. The first is trespass, which can be broadly defined as interference with another's actual and peaceable possession of property. Examples of such interference are entry onto or refusal to leave premises against the expressed wishes of the possessor. The second is breach of the peace, which generally involves force, violence, or some threat thereof. Where force is involved, issues concerning the title of ownership of property or the right to possession are irrelevant on the policy ground that such issues should be settled peacefully through the legal process rather than by potentially violent private action. Because of this concern with the use of force, the crime is sometimes referred to as forcible trespass.

Many statutes have abandoned the requirement of a breach of the peace, however, and prohibit any unauthorized intrusion. This can be accomplished by a general statutory prohibition of such intrusions (Model Penal Code, § 206.53) or by statutes aimed at particular conduct. Examples of the latter are specific prohibitions against entering upon land that has notices posted indicating that entry is forbidden; and against entering or refusing to leave despite a request to stay out or to leave by the person in possession of the premises. Where intrusion, rather than breach of the peace, is the focus of the prohibition, issues concerning ownership or some other right to be on the premises could become relevant. Thus, for example, a person cannot be convicted of entering land against the wishes of the person in possession if the former has a right to be on the premises.