Property Invasion, Damages, Trespass trespassing on commercial property (convenience store)

[baccofal]

Hello,

I am inquiring regarding a case of alleged trespassing, with some peculiarities. These are the basic details:
A friend was asked not to appear at a convenience store by store owner who wrongly suspected him of stealing.
The friend at a subsequent point needed to obtain cash from his bank account and entered the store to use the atm. The store owner called the police, who arrived, and filed a report. My friend waited for their arrival. The police suggested to him that he should not have entered the store, even to use an ATM machine (supposedly owned by a bank), once he was asked not to by the owner. The owner did not make a forceful accusation regarding theft to the police. My friend also asked the owner to 'speak English,' at some point during the discussion with the police. The owner has spoken in another language to his subordinate. This appeared on the report.
The police issued my friend a ticket. The town prosecutor indicated that he is threatened with about $300.00 in fines -- for a misdemeanor.

My question is: does the accusation have merit? Does the issue of the ATM play a role? Is the $300.00 fine reasonable?

I would appreciate any answer -- and I definitely appreciate the time that you are taking to review this inquiry.

B.

 

[mightymoose]

I don't think there is any merit here... not unless there is a documented history between the parties involved. Short of a court order requiring him to stay away from the property, it is a public place that he can access the same as anyone else.

That sometimes won't stop the police from taking a report though. However, the fact that they take a report and issue a citation doesn't mean much. What matters is how the attorneys treat it once it gets to them. From what you indicate here I can't imagine this issue would get far. He needs to argue the point that it is a public place and that he had a legitimate purpose on the property.

 

[CdwJava]

If he had been previously asked not to enter, then he returned, that might be sufficient to complete the crime of trespassing in your state. Additionally, if he was asked to leave by the clerk or owner, and he refused, then he was almost certainly guilty of trespassing.

Public or not, using an ATM or not, he does not have a right to go into a private place of business where he has been told to stay away from.

That being said, whether the state will prosecute this is another matter. They may decide to pursue it, or they may decide to drop it. But, I suggest your friend stay away from that store and find himself another ATM.

- Carl

 

[baccofal]

Mightymoose, CdwJava,

Thank you both for your considered replies. They asess the situation rather differently, but perhaps my friend can benefit from both. Maybe he can claim that he believed the store/ATM were public places (which he did), and see what the court does next.

My friend did not ultimately retain an attorney. Would anyone be able to comment regarding whether it would be advisable to pursue an argument such as the one suggested re. public spaces without an attorney? Whatever the legal situation, I would not want the judge to be irritated if the case comes to trial. If CdwJava's argument applies in this case, could it still make sense for him to claim anything regarding the 'publicness' of the space/Bnak machine?

Thank you again,

B

 

[CdwJava]

Thank you both for your considered replies. They asess the situation rather differently, but perhaps my friend can benefit from both. Maybe he can claim that he believed the store/ATM were public places (which he did), and see what the court does next.

While it is publicly accessible, it is inside of private property. A court is not likely to allow him to argue that he did not understand that "no" means "no."

I suspect your friend came back to tweak the clerk or owner, and was using the ATM as an excuse.

My friend did not ultimately retain an attorney. Would anyone be able to comment regarding whether it would be advisable to pursue an argument such as the one suggested re. public spaces without an attorney?

If he does not engage an attorney, he can expect to lose.

Whatever the legal situation, I would not want the judge to be irritated if the case comes to trial. If CdwJava's argument applies in this case, could it still make sense for him to claim anything regarding the 'publicness' of the space/Bnak machine?

He can CLAIM anything. But, it is not a true public place, it is a place open to the public that is privately controlled. They can refuse entry and service.

The key here is going to be what the elements of trespass include. If all that is necessary for the crime to be complete is an admonition not to return, he is guilty. If it requires being asked to leave, then refusing, if he had not been asked to leave when he went in (i.e. the cops were simply called right away) then he may not be guilty.

What state is this in, and what code section has he been cited for violating?

- Carl

 

[mightymoose]

How much time passed between the time he was initially told not to return and the time he did return?

Regardless, without a documented history of the matter, there is nothing to support the store owner's claim that your friend was told to stay away unless he acknowledged that in a statement to the police.

I really can't see this going anywhere. Personally I wouldn't be too concerned about an attorney for such a petty offense, but if he is concerned about a blemish on his record, may as well consult one just to be safe.

There won't be any jail time for this if convicted. I just can't see anyone wasting their time with this.

 

[CdwJava]

Different states take these things differently - just like different counties. In my county they just might prosecute this sort of trespassing, maybe in yours they wouldn't. A lot depends on credibility of the victim.

And, of course, video could play a part in it.

It is ALWAYS a good idea to consult an attorney rather than risk getting blindsided.

- Carl

 

[mightymoose]

The only trespass law I see at fast glance...

New Jersey Criminal Laws
2C:18-3. Unlicensed entry of structures; defiant trespasser; peering into dwelling places; defenses

b.Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:

(1)Actual communication to the actor; or
***
d.Defenses. It is an affirmative defense to prosecution under this section that:
(2)The structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure; or

 

[CdwJava]

So, if he was told to stay away and he entered or remained after such notice, he would be guilty of that section.

The key is whether there is retroactivity in the law or how long a stay away warning is valid in the OP's state. I have read it in some states where by statute or case law such notice can last for 30 days, others for hours. Like in CA, it may not be entirely clear and may be subject to additional rules.

The point is, he should not just waltz into the courtroom assuming this is nothing. I have seen more than one perpetrator get blindsided by what he thought was a nothing case only to find out he was facing a year or more in the hoosegow.

- Carl

 

[mightymoose]

Actually no... as the scenario was described, he meets the defense also listed in the statute.... this is assuming there was not shouting or other disorderly conduct going on.

 

[CdwJava]

The defense probably does not apply if he did not comply with the "lawful conditions" imposed to access or remain. If he were told to leave, he was given notice not to enter or remain, he was not complying with the lawful conditions to access or remain on the premises.

If interpreted otherwise, there could be no trespassing law of any privately owned business in the entire state. I suspect the cops there would know that trespassing was legal if that were the case.

As with anything, there is likely case law that applies these statutes and remedies the apparent contradiction.

Even if he had a case to make for the defense, it is an affirmative defense would generally still apply at trial. And given the number of attorneys that seem to specialize in this, it appears to be often applied law. That implies that it is not so clear that arguing "they were open to the public" is a clear win for the defense. Yet another reason to consult legal counsel if charges are filed.

- Carl