Welcome to Beerup Law
Attorney Ruth Beerup is a St. Charles, Missouri-based criminal defense lawyer who has spent her entire 25+ year career defending her clients' rights. She has seen successful outcomes on many trespassing charges and understands that these charges are often the result of law enforcement overreach. Give her a call at (636) 940-1111 to see if she can help with your situation.
Missouri Trespassing Laws
Trespassing 1st Degree
Per RSMo 569.140, a person commits the offense of trespass in the 1st degree if he or she knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure or upon real property. Real property basically means land. The land must be fenced or posted with notice against trespass, or notice must have been given to the trespasser by actual communication for a trespass 1st degree charge to be valid.
Missouri courts have shown that they will allow wide latitude for what is considered an inhabitable structure. Thus, any kind of construction, however flimsy, is likely to count. This includes carports, sheds, and greenhouses. Vehicles can also qualify, particularly campers or trailers.
The words “knowingly” and “unlawfully” can cause a bit of confusion. The state must prove that the person accused of trespass knew that they were in a place illegally. They generally do this with circumstantial evidence. For example, in State v Pugh 357 S.W. 3d 310, the defendant was found in the open door of a house by the owners when they arrived home at night. He ran away but was soon caught by the police. The defendant knew the owner's ex-girlfriend's son and said he was there to give him a ride, despite that person no longer living there. The appellate court held that the defendant's actions in running away were evidence of his knowledge that he had no legal right to be in the home.
A person can be charged with trespassing 1st degree on their own property if a co-owner has an order of protection against them. It is also possible the be accused of trespass in an open business. When you enter a business, you do so with the implied consent of the owner. Any behavior outside the bounds of that consent, such as interfering with operations or disturbing the peace, revokes that consent and causes you to be in trespass.
Trespassing 1st degree is a class B misdemeanor unless the victim is intentionally targeted as a law enforcement officer or close relative of a law enforcement officer, in which case it is a class A misdemeanor. If the property is part of a nuclear power plant, the trespass is a class E felony.
Trespassing 2nd Degree
Trespassing 2nd degree in Missouri occurs when a person enters unlawfully upon the real property of another. Real property is land, not buildings, for the purpose of this statute. Trespassing 2nd degree is an infraction, which is not even an actual crime and is punishable by a small fine of under $200. It is a crime of absolute liability. That means that there is no mental state component; you do not have to know that you are on another person's real property unlawfully. You are guilty just for being there.
What is the Difference Between Trespassing 1st and 2nd Degree in Missouri?
Trespass 1st degree covers buildings and real property, while 2nd degree only deals with real property. Additionally, the real property must be fenced or marked with notices against trespass for a 1st degree charge to adhere, but not for a 2nd. Trespassing 2nd degree is a crime of absolute liability, meaning that you can be guilty even if you were not aware you were on the property illegally, but you must knowingly be on property unlawfully for a trespassing 1st degree charge. Finally, trespassing 1st degree is a class B misdemeanor, a fairly serious crime punishable by up to 6 months in jail, and trespassing 2nd degree is an infraction punishable only by a small fine.
Missouri Purple Paint Laws
In addition to marking property with no trespass or similar signs, a landowner or lessee can warn against trespass by using purple marks on trees or posts. The mark must be a vertical line at least 8 inches in length, and the bottom of the mark must start at between 3 and 5 feet high. No specified width is given, but they must be readily visible to anyone approaching the property. The marks must be made at intervals of 100 feet or less.
Marking or capping the top of a post with purple is also acceptable. The top two inches (or more) must be capped. The bottom of the cap or mark must be between 3 and 5.5 feet high. The posts must be no more than 36 feet apart and readily visible to anyone approaching the property. Before you apply a cap or mark visible to all sides of a fence shared by different people, you must get the agreement of all owners or lessees of the property.
How Do You Beat a Trespassing Charge in Missouri?
The first step is to hire an experienced criminal defense attorney to represent you. It is never a good idea to take on a criminal matter by yourself. A respected criminal attorney can present your defenses to a prosecutor and negotiate with credibility in a way that is impossible for a non-lawyer. Like most laws, trespassing has subtle phrasing and complex case history that allows a skilled lawyer to create defenses where they are not obvious.
One such defense is the defense of necessity or justification as defined in RSMo 563.026. This defense can be used when a person finds themselves in a situation, through no fault of their own, where it is reasonable to do something that would typically be an offense in order to avoid greater harm. For example, if you were being chased by a dangerous dog and ran into someone's house, you would not be charged with trespass. The preceding example is extreme, but the defense of necessity can be used in many trespassing cases. As we see in City of St. Louis v. Klocker 637 S.W. 2d 174, however, this defense cannot be used to justify trespass in a clinic to prevent abortions.
Another defense is a claim of right. Here, a person would make the claim that they were legally privileged to enter the property in question. This defense would work differently with a 1st or 2nd degree charge. Trespass 2nd degree is a strict liability offense with no requisite mental state. Just being on someone else's real property unlawfully is enough to substantiate the charge. With trespassing 1st degree, though, a person must knowingly enter unlawfully. If the person reasonably thought they were not violating the law, a claim of right might be a good defense.
Sometimes, a thorough and careful reading of the charges can find a defense in technicalities. In State v. Richie 376 S.W. 3d 58, the defendant ran into a parking garage and, when he did not come back out in a timely manner, the attendant called the police. The defendant ran from the police but was ultimately apprehended. The defendant was charged with trespassing 1st degree for knowingly entering the parking garage unlawfully, but the conviction was overturned on appeal because it was determined that the parking garage was open to the public and the defendant had a right to enter. Had he been charged with unlawfully remaining, or if the garage had been posted “For Paying Customers Only,” the conviction likely would have held.
As you can see, dealing with a trespassing charge is something for which you need an experienced, knowledgeable lawyer. Ruth Beerup is that lawyer. She has spent her entire 25-year career on the defense, first as a public defender and later in private practice. Give her a call today to see if she can help you with your case.