Request By:
Lt. James A. Perry
Kentucky State Police
Mayfield, Kentucky 42066
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your request for an opinion concerning the offense of criminal trespass as it applies to entries upon residential property, business property, and property which is owned by an organization such as a church or civic group. Your specific concern deals with the interpretation of the offense of criminal trespass in the third degree, KRS 511.080, as it applies to these types of property.
KRS 511.080 provides that "a person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises." "Premises" is defined in KRS 511.010(4) as including buildings and any "real property. " Thus, the parking lots of business and other establishments as well as private residential property would be included in the definition of premises as used in KRS 511.080 and 511.010. Also, there is no differentiation between various types of owners of property, and therefore, the ownership of property makes no difference in a prosecution under this statute.
A crimical element in a prosecution under KRS 511.080 is determining what is meant by "enters or remains unlawfully. " This phrase is defined in KRS 511.090(1) to mean that the person has entered in or upon the premises "when he is not privileged or licensed to do so." It is provided in KRS 511.090(2) that a person who enters in or upon premises which are at the time open to the public does so with license or privilege unless he defies a lawful order not to enter or remain which was personally communicated to him by the owner or other authorized person. Thus if individuals enter upon the various premises you ask about during business hours they could not be prosecuted under KRS 511.080 unless they were asked not to enter or remain upon the premises by the owner or an authorized person. Your example of a swimming pool in a person's backyard would present no problem under KRS 511.090(2) as it would very likely never be open to the public and any person using the pool without being invited to do so by the owner is guilty of criminal trespass in the third degree whether or not he is asked to leave. However, individuals entering upon a parking lot pose a problem as we must determine what "open to the public" means.
A parking lot in a shopping center or at a church generally is not fenced and may, therefore, look very much like it is open to the public. Under prior law there was only one statute concerning criminal trespass on private property in situations like the ones in which you inquire and it was KRS 433.720 - Trespassing on enclosed premises. That statute required the owner to enclose his (non-farm) premises with a fence at least seven feet high and post a conspicuous notice before any person entering his property could be in violation of the statute. Under the new statute, entry onto any real property may constitute a criminal trespass and it does not matter that the area is not fenced or enclosed as those requirements were not included when KRS 511.080 was enacted. This is made all the more clear as KRS 511.070 - Criminal trespass in the second degree, specifically deals with entering in or upon fenced or enclosed premises and, therefore, it is obvious that a violation of KRS 511.080 can take place when the person enters unfenced premises. No matter how public an area appears, a person entering upon a privately owned parking lot while the business or other establishment it is meant to serve is not open is guilty of criminal trespass in the third degree if they enter the premises knowing they are not permitted there or remain when they are asked to leave.
Although a violation of the third degree criminal trespass statute may occur without any requirement that a warning be given if the premises are not open to the public, the statute does require the person to have "knowingly" entered or remained unlawfully. The term "knowingly" requires a knowledge of the unlawfulness of the intrusion. Brickey, Kentucky Criminal Law S. 12.09. The element of knowledge would obviously be present in the instance you mention where a sign is posted in the parking lot prohibiting any congregating during non-business hours. Individuals would also have knowledge if they were warned by the owner or other authorized person (a peace officer would be an authorized person when the owner requests the officer to ask persons to leave) that they should not be present on the premises. Knowledge might also be present if it is common knowledge in the area that individuals are not to be on the parking lots. Although a warning is sometimes not required it would be proper to simply ask the persons to leave before citing them, if this is practicable. The warning should be coupled with the admonition that any violators will be cited if they return to the premises at a later time.
Your last question is whether an officer who observes a violation of this statute must wait until the owner files a complaint and an arrest warrant is issued before he may cite the violators? This is not necessary. If a violation occurs in the officer's presence he may cite the violator immediately. It should be noted that in the event of a violation of KRS 511.080 the peace officer, in whose presence a violation is committed, has the option of issuing the violator a citation or making a custodial arrest. See KRS 431.005(1)(e); KRS 431.015(2); OAG 76-166. OAG 76-166 does state that a citation is very useful and should be used whenever possible due to the harmful effects an arrest has on a person. Because of these harmful effects the opinion suggests that an arrest should not be made unless it appears the person will not appear to answer the citation or the person is intoxicated, disorderly or dangerous to the public.
The disposition of individuals who enter upon residential premises to use the owner's swimming pool without his invitation may be somewhat different than that proposed in the above discussion concerning KRS 511.080 as if the premises are fenced or enclosed (as most swimming pools are, for insurance purposes and safety) the individuals would be guilty of criminal trespass in the second degree. Under KRS 511.070, criminal trespass in the second degree is a misdemeanor instead of a violation.
Regardless of whether the offense is a violation or a misdemeanor, if the officer arrives before the trespasser has left the owner's premises, an offense has been committed in the officer's presence and the officer may issue a citation, or make an arrest if necessary. If the trespasser is no longer on the premises, the owner of the property will have to swear out a complaint before a summons (preferably) can be issued or an arrest can be made.