I recently participated in a webinar with my colleagues Chris McLaughlin and Kirk Boone about the right of tax appraisers to enter private property. The webinar is available for purchase here. Professor McLaughlin has blogged about the issue before, and he has written again following our discussion. This post encapsulates what I learned in preparation for that webinar. It summarizes the laws governing criminal trespassing in North Carolina, glancing briefly back to their antecedents in the common law and looking ahead to recent statutory changes.
In particular, an amendment due to take effect at the end of this year makes invasion of the curtilage of another second-degree trespassing if the intruder enters between midnight and six a.m. The idea that certain conduct might be more culpable at night is not unfamiliar to our criminal law. Indeed, the crime of burglary cannot be committed by day. If this seems an antiquated throwback to a time before electric illumination, it is well to remember that the malignity of the offense does not so much arise from its being done in the dark, as at the dead of night, “when sleep has disarmed the owner and rendered his castle defenseless.” 4 Bl. Com. *224. Our law has traditionally afforded the home special protection, whether the intruders be law breakers or law enforcement. Trespassing joins burglary, the castle doctrine, and the Fourth Amendment in protecting that space.
Common law and early statutory offenses
In its broadest sense, the word trespass can mean any unlawful act committed against the person or property of another. Trespass, Black’s Law Dictionary (10th ed. 2014). In the criminal context, before the word “misdemeanor” gained currency, older writers used the term “trespass” to refer to an offense below the grade of felony. Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 405 (3rd ed. 1982); cf. 4 Bl. Comm. *130 (“treason, felony, or trespass”). The law of larceny still refers to a trespassory taking, meaning one without authority or consent. Perkins, Criminal Law, 303-04; State v. Jones, 369 N.C. 631, 634, 800 S.E.2d 54, 57 (2017) (“the taking must be by an act of trespass.”). Unlawful entry onto real estate is a particular kind of trespassing (“trespass quare clausum fregit”), and the crime generally requires a greater showing of harm than the tort.
The common law recognized an offense known as forcible entry and detainer, which required a showing of violence or intimidation. Perkins, Criminal Law, 487. From colonial times, North Carolina statute made forcible entry and detainer a misdemeanor. See N.C.G.S. § 14-126 (1981). Another statute made it a misdemeanor, punishable by fine and imprisonment, to enter upon the lands of another after being forbidden to do so. See N.C.G.S. § 14-134 (1981). Both statutes were repealed in 1987 when the legislature created first- and second- degree trespassing.
The common law also recognized forcible trespass to real property as a separate offense. (Our caselaw does not always distinguish between this offense and forcible entry and detainer.) The gist of the offense is a high-handed invasion of the actual possession of another, he being present. State v. McCauless, 31 N.C. (9 Ired.) 375, 376 (1849). Forcible trespass requires an assault on the occupant. State v. Blackmon, 36 N.C. App. 207, 210, 243 S.E.2d 417, 419 (1978); see also David J. Sharpe, Forcible Trespass to Real Property, 39 N.C. L. Rev. 121 (1960-61). As a common law offense, forcible trespass was unaffected by the repeal of Sections 14-126 (forcible entry and detainer) and 14-134 (entry after being forbidden), though charges are apparently rare.
Criminal trespassing in the first, second, and third degree
Enacted in 1987, Section 14-159.12 provides that a person commits first-degree trespassing if without authorization he enters or remains in a building or on the premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders. N.C.G.S. § 14-159.12(a). As of 2018, first-degree trespassing also includes entering upon the lands of the Eastern Band of Cherokee Indians after being excluded by a resolution of the Tribal Council. Id. at (a)(3). Except as provided, first-degree trespassing is a Class 2 misdemeanor. Id. at (b). Amendments effective 1 December 2023 increase the penalty for first-degree trespassing on facilities used for electric power, natural gas, public water, or agricultural activities.
Pursuant to Section 14-159.13, a person commits second-degree trespassing if without authorization he enters or remains on the premises of another: (1) after he has been notified not to enter or remain, or (2) that are posted with notice not to enter the premises. N.C.G.S. § 14-159.13. Subsection (1) resurrects the older statutory offense of entry after being forbidden, noted above. Subsection (2) creates an alternative mechanism for notice: the posting of signs. The owner need only post signs “in a manner reasonably likely to come to the attention of intruders.” Id.; see also In re S.M.S., 196 N.C. App. 170, 173, 675 S.E.2d 44, 46 (2009) (“Girl’s Locker Room” sign provided sufficient notice respondent was not authorized to enter). This differs from the more specific statutory requirements for signage before a person may be convicted of trespassing on posted property for hunting, fishing, or trapping. See N.C.G.S. § 14-159.7 (requiring signs of at least 120 square inches posted every 200 yards or purple paint eight inches long every 100 yards).
Second degree trespassing by entering after notice not to enter is a Class 3 misdemeanor. N.C.G.S. § 14-159.13(b). As noted above, amendments effective 1 December 2023 make it also second-degree trespassing to enter or remain on the curtilage of the dwelling of another between the hours of midnight and six a.m. Trespassing of this sort is made a Class 2 misdemeanor.
In general, a crime is a lesser included offense if all the elements of the lesser are included in the definition of the greater. State v. Robinson, 368 N.C. 402, 407, 777 S.E.2d 755, 758 (2015). By statute, first- and second-degree trespassing are declared to be lesser included offenses of felony and misdemeanor breaking or entering. N.C.G.S. § 14-159.14; cf. State v. Williams, 150 N.C. App. 497, 505, 563 S.E.2d 616, 621 (2002) (first-degree trespassing is lesser included offense of misdemeanor breaking or entering); State v. Hamilton, 132 N.C. App. 316, 320, 512 S.E.2d 80, 84 (1999) (first-degree trespassing is a lesser included offense of felony breaking or entering). And since breaking or entering is a lesser included offense of burglary, there is a continuum from that greater offense to the lesser offense of trespassing. See State v. Montgomery, 341 N.C. 553, 566, 461 S.E.2d 732, 739 (1995) (breaking or entering is a lesser included offense of burglary).
A person commits third-degree trespassing if, without written authorization, he enters or remains on the premises of another for the purpose of hunting, fishing, trapping, loitering, or operating an all-terrain vehicle. Third degree trespassing is a misdemeanor punishable by fine (up to $200) and/or imprisonment (up to 30 days). This act applies only to Davidson, Iredell, Rowan, Wilkes, and Yadkin County. 1991 Session Laws 252 & 862; 1993 Session Laws 593 & 659.
Fourth Amendment and Castle Doctrine Implications
The Fourth Amendment bars unreasonable searches and seizures. U.S. Const. amend. IV. The text lacks any explicit enforcement mechanism; the founders probably considered the common law remedy of trespass sufficient. Indeed, the constitution was in effect for nearly a century before the Supreme Court found in it any support for the exclusion of evidence obtained in violation of the Fourth Amendment, the current exclusionary rule. Bradford P. Wilson, The Fourth Amendment as More than a Form of Words: The View from the Founding in The Bill of Rights: Original Meaning and Current Understanding, 151, 153-58 (Eugene W. Hickok, Jr., ed., 1991).
In Katz v. United States, 389 U.S. 347 (1967), the United States Supreme Court seemed to have buried the trespass theory of Fourth Amendment coverage, preferring to ask whether the person had any reasonable expectation of privacy in the premises. See Terry v. Ohio, 392 U.S. 1, 9 (1968). But in United States v. Jones, 565 U.S. 400 (2012), it resurrected the trespass theory as an alternative, holding that the installation of a GPS tracking device on a vehicle constituted a search. And in Florida v. Jardines, 569 U.S. 1 (2013), the Supreme Court held police conducted a search when they took a drug-sniffing dog onto the front porch of the defendant’s residence. The physical intrusion alone, the majority said, was sufficient to show a search occurred. See 1 Wayne R. LaFave et al., Search & Seizure: A Treatise on the Fourth Amendment § 2.1(e) (6th ed. 2020). Given the open fields doctrine (left intact by Jones and Jardines), it is still possible for a state actor to commit a trespass without violating the Fourth Amendment, though charges are unlikely.
The Supreme Court in Jardines reasoned that, by bringing a drug dog, police exceeded their implied license to approach the door. Jardines, 569 U.S. at 9. In the Fourth Amendment context, North Carolina appellate courts have likewise recognized an implied license to approach a home’s entrance, even if the property is posted with no trespassing signs. See State v. Falls, 275 N.C. App. 239, 253, 853 S.E.2d 227, 237 (2020) (“the presence of a no trespassing sign, by itself, might not expressly revoke the implied license”); State v. Smith, 246 N.C. App. 170, 177, 783 S.E.2d 504, 509 (2016) (sign alone, in context with other factors, was insufficient to revoke implied license). Apparently, no case has examined the consequences of the implied license for criminal trespassing, though it seems safe to assume that it is permissible for a private person to approach the front door.
Trespassers official or otherwise run a more dangerous risk than having their evidence suppressed. Under the common law, a person is permitted to use deadly force to defend his home when he reasonably believes an intruder intends to commit a felony or inflict serious injury therein. State v. Blue, 356 N.C. 79, 87, 565 S.E.2d 133, 138 (2002). Section 14-51.2 expands the definition of home for purposes of defensive force to include “[a] building or conveyance of any kind, to include its curtilage, whether the building is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed as a temporary or permanent residence.” N.C.G.S. § 14-51.2(a)(1). The same statute declares that a lawful occupant is presumed to have had a reasonable fear of imminent death or serious bodily harm when using defensive force against an intruder “unlawfully and forcefully entering.” Id. at (b); see also State v. Lee, 370 N.C. 671, 675, 811 S.E.2d 563, 566 (2018) (noting presumption of reasonable fear of death or bodily harm); but see State v. Walker, 286 N.C. App. 438, 448, 880 S.E.2d 731, 739 (2022) (statute creates “presumption that deadly force is reasonable”), disc. review denied, __ N.C. __, 887 S.E.2d 879 (2023). Thus, depending on the severity of the invasion, the consequences of trespassing include civil suit, criminal charges, suppression of evidence, and forcible ejection by a lawful occupant.
Conclusion
For a time, it was possible (if only roughly) to characterize first-degree trespassing as the unauthorized entry of a building and second-degree trespassing as entry onto grounds duly posted. That formulation is no longer accurate. First-degree trespassing now includes entry onto Cherokee lands after banishment, and second-degree trespassing will include entry onto another’s curtilage between midnight and 6 a.m., whether posted or not. It is not surprising that trespassing should return to the concept of curtilage. Now part of the patois of search and seizure, the word was used by Blackstone to describe where a burglary might occur, even if the building was not joined to the dwelling. 4 Bl. Comm. P. *225. Of course, trespassing can occur elsewhere. But like the Fourth Amendment and the castle doctrine, our trespassing laws recognize the sanctity of the home.
Practically, the most important takeaway is that our trespassing statutes have been amended effective 1 December 2023. Penalties are increased for first-degree trespassing on public utilities. And second-degree trespassing includes a nighttime invasion of another’s curtilage.