What is trespassing (legally)?

travlnusa · #21 05/02/07, 08:45 AM

[QUOTE=[B]If people ask to hunt your property they are invited guests if you agree. Best not to agree![/B]

In Wisconsin, there are laws that protect the landowners from court action from hunters. They have been tested in courts and have been held up.

I am sure it varies from state to state

GREG VT · #22 05/02/07, 09:24 AM

Quote:

Originally Posted by ZealYouthGuy

Not at all, the law ruling from 1964 which is quoted in these law cases and was a law case itself says:

We recognized this principle in Davis v. United
States, 327 F.2d 301 (9th Cir. 1964), stating that anyone may
"openly and peaceably knock [on an individual's door] with
the honest intent of asking questions of the occupant thereof
-- whether the questioner be a pollster, a salesman, or an offi-
cer of the law.

So perhaps the District Court justices are being disingenuous, but I am not.

I think you may have missed this important piece of the puzzle;

"The thrust of Hammett's argument comes
from our statement in Davis suggesting that officers may only
enter the curtilage of a home to speak with its occupants in the
absence of "express orders from the person in possession
against any possible trespass. . . ." Davis , 327 F.2d at 303.
This argument, however, is inapposite to the facts at hand."

More specifically;

""express orders from the person in possession
against any possible trespass. . . ." Davis , 327 F.2d at 303."

palani · #23 05/02/07, 09:27 AM

[QUOTE=travlnusa]

Quote:

Originally Posted by [B

If people ask to hunt your property they are invited guests if you agree. Best not to agree![/B]
In Wisconsin, there are laws that protect the landowners from court action from hunters. They have been tested in courts and have been held up.

I am sure it varies from state to state

Are fishermen hunters? How about treasure hunters? Or the geo-cacher who asks permission to cross your property? Or morel hunters. Does Wisconsin law protect the landowner from these classes as well?

How about the guy who asks permission to use your land to parachute jump on. Locally around 20 years ago a farmer gave permission for a parachute group to land land on his farm and one of them broke his leg. As you might guess he was awarded the farm. His status was 'invited guest' and no one told him the land would be hard.

I don't object to hunters. I used to do my share of it. If anyone asks permission to hunt I make it clear they are not invited guests and they are not service people. That only leaves trespassers. While I won't call the sheriff on them I don't worry if they break a leg or shoot each other either.

If you decided to permit access to your property because the guy is a hunter and is exempt from normal landowners duties because of Wisconsin law do you now have to worry about what he is hunting? If he is a pheasant hunter and happens to shoot a deer out of season did you give him permission to use your property for this 'illegal' activity? Maybe you are now an accomplice?

travlnusa · #24 05/02/07, 09:42 AM

[QUOTE=palani]

Quote:

Originally Posted by travlnusa

Are fishermen hunters? How about treasure hunters? Or the geo-cacher who asks permission to cross your property? Or morel hunters. Does Wisconsin law protect the landowner from these classes as well?

How about the guy who asks permission to use your land to parachute jump on. Locally around 20 years ago a farmer gave permission for a parachute group to land land on his farm and one of them broke his leg. As you might guess he was awarded the farm. His status was 'invited guest' and no one told him the land would be hard.

I don't object to hunters. I used to do my share of it. If anyone asks permission to hunt I make it clear they are not invited guests and they are not service people. That only leaves trespassers. While I won't call the sheriff on them I don't worry if they break a leg or shoot each other either.

If you decided to permit access to your property because the guy is a hunter and is exempt from normal landowners duties because of Wisconsin law do you now have to worry about what he is hunting? If he is a pheasant hunter and happens to shoot a deer out of season did you give him permission to use your property for this 'illegal' activity? Maybe you are now an accomplice?

The law does cover fishermen. As far as the rest goes, I would tend to doubt it.

The hunter is repsonsible for what they harvest, not the landowner.

Forgive me for posting without having thought out all the examples you cited. I will refrain from doing so in the future.

seedspreader · #25 05/02/07, 09:51 AM

Quote:

Originally Posted by GREG VT

I think you may have missed this important piece of the puzzle;

"The thrust of Hammett's argument comes
from our statement in Davis suggesting that officers may only
enter the curtilage of a home to speak with its occupants in the
absence of "express orders from the person in possession
against any possible trespass. . . ." Davis , 327 F.2d at 303.
This argument, however, is inapposite to the facts at hand."

More specifically;

""express orders from the person in possession
against any possible trespass. . . ." Davis , 327 F.2d at 303."

No, really I didn't. I think you missed the part in the Friedeli case that quotes this case:

The existence of such a sign by itself does not withdraw permission to enter
access routes to a house or other portions of the curtilage impliedly open
to the public.8

GREG VT · #26 05/02/07, 10:16 AM

Again not an apples to apples comparision.

"Contrary to Friedli's claims below and on appeal, prior to entering
the home the detectives were in a place that was impliedly open to the
public. The easement road provided access to and was shared by four other
residences. There was no closed gate or other barriers, no 'No
Trespassing' sign at the entrance to the easement road, and no fences
around Friedli's individual property. Further, the officers did not
deviate from a direct route to Friedli's residence in employing a
legitimate 'knock and talk' based on a tip from his landlord. Although the
trial court did find that Friedli probably had a 'No Trespassing' sign on a
tree in his yard, it found that the officers did not see it.7 The
existence of such a sign by itself does not withdraw permission to enter
access routes to a house or other portions of the curtilage impliedly open
to the public.8 "

Note the N-T sign was "on a tree in his yard" and not at the entrance to his driveway.

Also note where they specifically reference "no 'No Trespassing' sign at the entrance to the easement road"

From any of the cited cases it is not made clear that a properly "posted" property can be entered by any individual especially a non LEO.

All of these cases concern LEO's with at least some "probable cause".

Not the same situation as me legally posting my property with the intent of keeping solicitors from bothering me.

palani · #27 05/02/07, 10:17 AM

[QUOTE=travlnusa]

Quote:

Originally Posted by palani

Forgive me for posting without having thought out all the examples you cited. I will refrain from doing so in the future.

Please don't let any of my comments affect your posting. I have had over 50 years of observing to develop opinions and that is all they are.

The general view of this board seems to be that trespassers belong in a class that should be shot. Speaking as a perpetual trespasser I don't share this view. A maxim of Law is that possession is, as it were, the position of the foot. You might own a piece of paper that claims you own everything in sight but all you possess at any time can be covered by your feet.

doc623 · #28 05/02/07, 10:21 AM

What is "curtilage of a home "?

Wayne02 · #29 05/02/07, 10:26 AM

These trespassing threads are always interesting. I came across this "Open field doctrine" while researching the Indiana guys case as outlined in the other thread. I had not heard of the "open field" thing before.

Quote:

''Open Fields.'' --In Hester v. United States, 96 the Court held that the Fourth Amendment did not protect ''open fields'' and that, therefore, police searches in such areas as pastures, wooded areas, open water, and vacant lots need not comply with the requirements of warrants and probable cause. The Court's announcement in Katz v. United States 97 that the Amendment protects ''people not places'' cast some doubt on the vitality of the open fields principle, but all such doubts were cast away in Oliver v. United States. 98 Invoking Hester's reliance on the literal wording of the Fourth Amendment (open fields are not ''effects'') and distinguishing Katz, the Court ruled that the open fields exception applies to fields that are fenced and posted. ''[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.'' 99 Nor may an individual demand privacy for activities conducted within outbuildings and visible by trespassers peering into the buildings from just outside. 100 Even within the curtilage and notwithstanding that the owner has gone to the extreme of erecting a 10- foot high fence in order to screen the area from ground-level view, there is no reasonable expectation of privacy from naked-eye inspection from fixed-wing aircraft flying in navigable airspace. 101 Similarly, naked-eye inspection from helicopters flying even lower contravenes no reasonable expectation of privacy. 102 And aerial photography of commercial facilities secured from ground-level public view is permissible, the Court finding such spaces more analogous to open fields than to the curtilage of a dwelling. 103

http://en.wikipedia.org/wiki/Open_fields_doctrine

http://caselaw.lp.findlaw.com/data/c...ment04/04.html

seedspreader · #30 05/02/07, 11:00 AM

I hope everyone understands that I wish "no trespassing" included and covered as much as I thought it did in the past, but I think knowledge is strength and if you move your "door" for knocking on with a gate and fences... then it seems like you are in a better position to defend your right to privacy.

The Indiana video... I've been looking up info and haven't found ANYTHING. Don't you think that's strange? If the guy had a fence and gate, I wonder what would have happened? Would the Cop have let the lady climb the gate/fence? Would he have "ordered" the gentleman to open it?

The real America is a scary place. The logic of "if you don't have something to hide" by the cop is common among many people... in fact many on this board.

My point of this thread is to make sure everyone knows a few signs or purple paint may theoretically "protect" you, but the interpretation of those laws seems far different than the intent of those laws.

seedspreader · #31 05/02/07, 11:03 AM

Quote:

Originally Posted by doc623

What is "curtilage of a home "?

http://en.wikipedia.org/wiki/Curtilage

Quote:

Curtilage is a legal term describing the enclosed area of land around a dwelling. It is distinct from the dwelling by virtue of lacking a roof, but distinct from the area outside the enclosure in that it is enclosed within a wall or barrier of some sort.

It is typically treated as being legally coupled with the dwelling it surrounds despite the fact that it might commonly be considered "outdoors".

This distinction is important under US law for cases dealing with burglary and with self defense under the Castle Doctrine. Under Florida law, burglary encompasses the English common-law definition and adds (among other things) curtilage to the protected area of the dwelling into which intrusion is prohibited. Similarly, a homeowner does not have to retreat within the curtilage under Florida's Castle Doctrine.

The curtilage (like the home) is also protected from unreasonable search and seizure under the Fourth Amendment of the U.S. Constitution.[1]

seedspreader · #32 05/02/07, 11:06 AM

Quote:

Originally Posted by GREG VT

Again not an apples to apples comparision.

"Contrary to Friedli's claims below and on appeal, prior to entering
the home the detectives were in a place that was impliedly open to the
public. The easement road provided access to and was shared by four other
residences. There was no closed gate or other barriers, no 'No
Trespassing' sign at the entrance to the easement road, and no fences
around Friedli's individual property. Further, the officers did not
deviate from a direct route to Friedli's residence in employing a
legitimate 'knock and talk' based on a tip from his landlord. Although the
trial court did find that Friedli probably had a 'No Trespassing' sign on a
tree in his yard, it found that the officers did not see it.7 The
existence of such a sign by itself does not withdraw permission to enter
access routes to a house or other portions of the curtilage impliedly open
to the public.8 "

Note the N-T sign was "on a tree in his yard" and not at the entrance to his driveway.

Also note where they specifically reference "no 'No Trespassing' sign at the entrance to the easement road"

From any of the cited cases it is not made clear that a properly "posted" property can be entered by any individual especially a non LEO.

All of these cases concern LEO's with at least some "probable cause".

Not the same situation as me legally posting my property with the intent of keeping solicitors from bothering me.

That's fine Greg, if you believe that and feel secure in it... it doesn't really affect me either way.

I would be interested, the next time someone disobeys your sign and knocks on your door in seeing the results of your prosecution of them on trespassing charges.

logbuilder · #33 05/02/07, 12:31 PM

ZYG,

Am I to understand that if you see a sign at the entrance to a property that says No Trespassing that you would still enter for the purpose of talking to them about your religious beliefs?

If so, seems to me that their intentions to not have uninvited guests was pretty clear and your ignoring their wishes is blatantly disrespectful. Personally, I don't need someone at my door professing their goodness and religion when they have so obviously thought so little of my wishes as to ignore my sign. In my eyes, someone who does this has zero credibility.

Just my opinion.

GREG VT · #34 05/02/07, 01:26 PM

Quote:

Originally Posted by ZealYouthGuy

That's fine Greg, if you believe that and feel secure in it... it doesn't really affect me either way.

I would be interested, the next time someone disobeys your sign and knocks on your door in seeing the results of your prosecution of them on trespassing charges.

Why did you start a thread about the legality and definition of trespassing if "it doesn't affect me (you) either way"?

The fact is, it does affect you if you are going to be walking past N-T signs to solicit homeowners.

Honestly I do not KNOW the correct answer but the cites you reference are not good enough to make the case that you (non LEO with no probable cause to investigate) can ignore N-T signs and walk up someone's driveway to knock on their door.

Even if it turns out that you can, it still does not negate the fact that ethically an individual should respect the privacy of others .

seedspreader · #35 05/02/07, 01:46 PM

Quote:

Originally Posted by logbuilder

ZYG,

Am I to understand that if you see a sign at the entrance to a property that says No Trespassing that you would still enter for the purpose of talking to them about your religious beliefs?

If so, seems to me that their intentions to not have uninvited guests was pretty clear and your ignoring their wishes is blatantly disrespectful. Personally, I don't need someone at my door professing their goodness and religion when they have so obviously thought so little of my wishes as to ignore my sign. In my eyes, someone who does this has zero credibility.

Just my opinion.

Not at all... I got to reading about rights and court cases because of this issue and thread. I have stated copiously and consistently that I don't trespass knowingly on people's property.

As far as zero credibility... nice thought and paragraph but not relevant to anything I've said.

WisJim · #36 05/02/07, 02:05 PM

In Wisconsin, not too many years ago, the law was changed so that property does not have to be posted with signs, that a person is trespassing even if there are no signs, if he crosses the property line onto your property.

http://www.dnr.state.wi.us/org/land/...5section2b.pdf
http://www.aae.wisc.edu/aae336/Readings/TRESPASS.pdf

logbuilder · #37 05/02/07, 02:23 PM

Quote:

Originally Posted by ZealYouthGuy

I have stated copiously and consistently that I don't trespass knowingly on people's property.

Thanks for the clarification. I wish everyone was that respectful of NT signs.

This whole area of people entering your property has gotten me to do some research too. We've moved so far away from the spirit of the constitution. I'm less concerned with private individuals who come on my property than I am with representatives of the govt that think they have the rights to do whatever they want. I'm generally a law abiding person so I really have nothing to hide. However, based on principal, no govt employee can enter my property without my permission and unless I know their intentions are good, they won't get my permission.

texican · #38 05/02/07, 03:02 PM

I tell folks my insurance policy is a backhoe and the back 40... after that info sinks in, I tell em they'd best be careful... If someone were to injure themselves, for whatever reasons, permission or not, and they wanted to sue, I do'a believe that I could trespass against them, and hurt myself, and countersue, pretty dang quickly.

Or they could just disappear. SSS.

I'm pretty friendly to daytime trespassers, regardless whether they're innocent or up to no good. Every night time visitor, unexpected (even my family

) is greeted aggressively, till their intentions are known. The unwelcome ones usually head straight home to change their shorts, or call the sheriff. Had a call once from the sheriff, and he agreed with my side of the story, and asked me to please don't scare em so much...

seedspreader · #39 05/02/07, 03:35 PM

Quote:

Originally Posted by logbuilder

Thanks for the clarification. I wish everyone was that respectful of NT signs.

This whole area of people entering your property has gotten me to do some research too. We've moved so far away from the spirit of the constitution. I'm less concerned with private individuals who come on my property than I am with representatives of the govt that think they have the rights to do whatever they want. I'm generally a law abiding person so I really have nothing to hide. However, based on principal, no govt employee can enter my property without my permission and unless I know their intentions are good, they won't get my permission.

And that's really the thrust of it all, for me personally.

On my land, if there is a fence and gate, does that eliminate the showdown on that Indiana video?

My gut feeling is that a cop is going to do what they want to do and the rest of the system is going to support them.

Mike in Ohio · #40 05/02/07, 03:45 PM

Quote:

Originally Posted by ZealYouthGuy

Not at all... I got to reading about rights and court cases because of this issue and thread. I have stated copiously and consistently that I don't trespass knowingly on people's property.

Bob, in your very first post starting this thread you stated the following:

I am all for privacy. Post a "no trespassing" sign and you eliminate me from knocking on your door 90% of the time. If my life or families life is in danger... sorry, I am going to inconvenience you probably...

This means, at least to me, that you are willing to trespass on someone elses property regardless of whether it is posted or not.... at least 10% of the time based on your decision that your interests are more important than the property owners desire not to have you intrude on them.

I don't have a problem with that (in the circumstances you describe) as long as you accept that some people may choose to respond to your inconvenience in a less than receptive manner.

You've been to our house (still haven't convinced you to visit the farm <G>) and I'm sure you noticed our proximity to the turnpike and the lack of any other homes in our immediate area. We generally get people coming to our door 4-6 times a year because they broke down,ran out of gas, were in an accident,got stuck because of a storm, etc. We may be cautious but we've never failed to provide assistance - it may not be what the person is asking/demanding. For example, if they are saying they want in our house at 4am it's not going to happen. They can stay on the porch until the authorities arrive.

This is a lot different than someone coming up trying to evangalize.

Mike