Understanding Trespass Laws and Rights


We have provided more information about "WHAT IS TRESPASS" HERE

It is important to understand that trespass law differs from state to state. However, there are some common similarities in trespass law from state to state.

A row of law books on the shelf.

A 10th Circuit Precedent Decision

If you really want to know about trespass law from a federal and state perspective, you need to study the PDF version of the 10th Circuit No Trespassing Sign Decision, which included a well-written, logical dissenting opinion from Judge Gorsuch when he was seated on the 10th Circuit.

Essentially, the decision says that if you are to revoke the "implied consent" offered to anyone coming to your front door, including government agents and law enforcement, you had better put our No Trespassing sign on the front porch, as well as the front gate. You can study that decision HERE.

A Treatise on One of the Four Pillars of Property Rights: "THE RIGHT TO EXCLUDE"

Some of the information presented here came from a paper delivered to the King County Department of Development and Environmental Services (DDES) by the King County Prosecutor in Washington State, entitled:


The paper was designed to provide limits and parameters to DDES on what they can do and where they can go on private property in providing building permit reviews and entering private property for the purposes of gathering evidence in land use and environmental code violation cases. Although the paper touched on U. S. Constitutional protections, it focused mostly on the Washington State Constitution and Washington statute law. Even so, some of the information provided does carry across state lines, and it is up to the reader to determine if a Washington State law that we have shown here is also the law in their state.

One of the areas covered in the paper was Administrative Search Warrants. In most cases, search warrants can only be issued for probable cause by a judge in criminal violations. However, some states are now turning what would normally be civil violations of land use or environmental laws into criminal cases, thereby opening the door for a criminal search warrant. Code enforcement officers armed with a criminal search warrant, can then come on your property and in your home even if you have posted your property with No Trespassing signs.

One of the subjects touched on in the Prosecutor's paper was the curtilage or an area around your home and outbuildings where your livelihood takes place. The term is described in the U. S. Legal website as:

Curtilage is the immediate, enclosed area surrounding a house or dwelling. The U.S. Supreme Court noted in United States v. Dunn, 480 U.S. 294 (1987), that curtilage is the area immediately surrounding a residence that harbors the `intimate activity associated with the sanctity of a man's home and the privacies of life. Curtilage, like a house, is protected under the Fourth Amendment from unreasonable searches and seizures. Determining the boundaries of curtilage is imprecise and subject to controversy. Four of the factors used to determine whether to classify the area as curtilage include:

1) The distance from the home to the place claimed to be curtilage (the closer the home is, the more likely to be curtilage);

2) Whether the area claimed to be curtilage is included within an enclosure surrounding the home;

3) The nature of use to which the area is put (if it is the site of domestic activities, it is more likely to be a part of the curtilage); and

4) The steps taken by the resident to protect the area from observation by people passing by (shielding from public view will favor finding the portion is curtilage).

However, the prosecutor's paper states that government agents may enter areas of curtilage, which are impliedly open to the public, such as access routes and walkways to the house with this caveat:

This rule would not work when confronted by obvious indicia of a property owner's desire to exclude intruders, SUCH AS NO TRESPASSING SIGNS THAT SPECIFICALLY ADDRESSES GOVERNMENT AGENTS.

NARLO's No Trespassing sign specifically defines government agents as being intruders, except for fire or medical emergencies.

Warning Private Property

Without the owner's express
Verbal or written authorization

This includes any and all government agents, except in case of a fire or medical emergency.

Nevertheless, keep in mind that a police officer may come on your property at any time if the officer is investigating criminal activity. If, however, the officer wants to come into your home or an area determined to be the curtilage, the officer must have a warrant in hand, signed by a judge, specifically indicating the probable cause of criminal activity and the area to be searched. The NARLO No Trespassing sign states this fact in powerful, legally intimidating terms.

The paper indicated that open fields are fair game to any government agent or law enforcement officer if the fields are not posted with No Trespassing signs. A No Trespassing sign that specifically excludes government agents, as NARLO's No Trespassing sign does, is considerably more powerful than just a sign that says "No Trespassing."

Another area covered by the Prosecutor's paper is the issue of obtaining evidence by code enforcement agents or police or sheriff officers. In Washington State, there is an Exclusionary Rule which states:

"The judicial remedy for evidence that has been obtained in violation of the State Constitution is suppression. If evidence of a code violation is illegally obtained, it will be deemed inadmissible in both administrative proceedings or courts of law. If an item of evidence is suppressed, all evidence that was discovered subsequently and as a result of the illegal search is also subject to suppression."

What this means is if it is determined that a government agent came on your property when the property is clearly posted with a No Trespassing sign that excludes government agents, any evidence gathered can be rendered inadmissible in administrative proceedings or in a court of law. This could very well be the law in your state.