§708-815  Simple trespass.  (1)  A
person commits the offense of simple trespass if the person knowingly enters or
remains unlawfully in or upon premises.



(2)  Simple trespass is a violation. [L 1972, c
9, pt of §1; gen ch 1993]



 



COMMENTARY ON §§708-813 TO 815



 



  The essence of the offense of criminal trespass is
"entering and remaining unlawfully," as defined by §708-800.  It is
basic to the offense that the actor have some knowledge that the actor's
presence on the premises is not licensed, invited, or privileged.



Under that
definition, a person does not transgress when he enters or stays in a place
open at the time to the public, unless he is specifically warned not to enter
or remain.  The fact that some portions of the premises were open to the public,
including the defendant, does not mean that he has a privilege with reference
to closed-off portions.[1]



  The simple offense (i.e., §708-815) is defined in terms of
entering or remaining on premises with knowledge of this fact ("...the
person knowingly enters or remains unlawfully in or upon premises"). 
Simple trespass is a violation.



  Two degrees of aggravated trespass are provided by the Code. 
The most serious aggravation occurs when the trespass is to a dwelling as
defined by §708-800.  Section 708-813 (criminal trespass in the first degree),
makes this offense a misdemeanor.  "The alarm caused to inhabitants by the
entry, and the likelihood of violence which may injure someone, including the
intruder, are sufficient to warrant increased penalties."[2]  A second,
less serious aggravation, occurs when the premises are enclosed or fenced. 
Under §708-814 (criminal trespass in the second degree), this kind of trespass
is made a petty misdemeanor.



  Act 55, Session Laws 1974, amended §708-813(1), relating to
criminal trespass in the first degree, by making it an offense for a person to
knowingly enter or remain unlawfully in or upon the premises of a hotel or
apartment building in addition to a dwelling.  The law was changed primarily to
deal with the problem of prostitution in hotels and apartments.  Senate
Standing Committee Report No. 699-74.  Section 708-813 was also amended by Act
32, Session Laws 1975, which added subsection (2).  The purpose of the new
language was to aid ranchers in proceeding against rustlers.  The Legislature
found that it was difficult to catch rustlers in the act.  Under the new
subsection, one apprehended in an enclosed area in possession of a firearm
could be punished as a misdemeanant.



  Act 49, Session Laws 1974, amended §708-814, criminal
trespass in the second degree, to include the situation where a person is
unlawfully on school premises and refuses to leave after reasonable warning or
request to leave.  In explaining the change, the House Committee on Judiciary and
Corrections in Standing Committee Report No. 727-74 stated:



"Your
Committee understands that there are some schools without fences and under
present statutes, persons trespassing on such premises commit the offense of
simple trespass.  Simple trespass is a violation and is enforceable only by
means of a penal summons.  Your Committee finds that persons trespassing on
school premises, whether fenced or unfenced, should be subject to the offense
of criminal trespass in the second degree, a petty misdemeanor."



  Where adverse circumstances, e.g., flood, storm, etc.,
require one to take refuge upon the premises of another, such action is not
penal because it comes within the choice of evils justification set forth in
§703-302.



  Any trespass statute which is applied in situations involving
political or religious solicitation becomes subject to constitutional
scrutiny.  As the drafters of the Proposed Michigan Revised Criminal Code, one
of the sources from which this chapter of the Code is derived, noted:



This activity
does not fall within §[708-815] because (a) in most instances the entry is
privileged by custom and therefore is not unlawful within the definition of
'enter or remain unlawfully' in §[708-800], if the owner does not post his
premises or give specific notice to the religious or campaign worker to stay
off or leave the premises there is no change in the customary law, and (b) even
if the owner does not desire the person to enter, the latter does not 'know'
within the meaning of §[702-206(2)(b)] that he is entering or remaining
unlawfully unless the notice is communicated to him.  If he forces his way into
an enclosure that is posted or into a dwelling, with the knowledge that his
presence is not wanted he fits the language of §§[708-813 to 815], but can
still contend that the statute as to him under the circumstances infringes on
his freedoms of speech or religion.  Even if he prevails with regard to the
prosecution against him, however, this does not void the statute as far as
cases not involving these freedoms are concerned, under well-established
constitutional case law.[3]



  Previous Hawaii law imposed a single low-grade misdemeanor
sanction for trespass.[4]  The offense was not differentiated, as in the Code,
and did not account adequately for the varying circumstances in which trespass
may arise.



 



SUPPLEMENTAL COMMENTARY ON §§708-813 TO 815



 



  Act 177, Session Laws 1981, rearranged the former text and
added subsection (1)(c) to §708-813, formerly §708-814(1)(b), thereby upgrading
trespass upon school premises from a petty misdemeanor to a misdemeanor.  The
increase in penalty was designed to curb vandalism and violence on school
campuses, much of which appeared to be caused by person unlawfully there. 
Senate Standing Committee Report No. 720, House Standing Committee Report No.
627.



  Act 201, Session Laws 1979, added §708-814(c) to upgrade the
penalty for the acts referred to from a violation to a petty misdemeanor.  The
Legislature found that the police would not place persons charged with simple
trespass under physical arrest without a penal summons being first obtained. 
In upgrading the offense, the Legislature sought to give retailers a more
effective means of removing persons who harass or inconvenience customers or
cause a loss of sales.  House Standing Committee Report No. 984.



  Act 89, Session Laws 1996, amended §708-813(1) by clarifying
that the provisions of the subsection pertain to both public and private
schools.  Conference Committee Report No. 64.



  Act 146, Session Laws 1998, addressed the problem of
trespassing and amended §708-814 by requiring that written warnings [to leave]
be given by the owner or lessee of the premises or their agent, or by a police
officer.  In State v. Sadler, 80 H. 372, 375 (1996), the Hawaii intermediate
court of appeals held that the offense of criminal trespass in the second
degree under §708-814(1)(b) "contemplates a warning or request
contemporaneous with a person entering or remaining unlawfully on the
premises".  Therefore, in order to convict a person for criminal trespass
in the second degree, the person must refuse a warning or request to leave that
is made contemporaneously with the person's entering or remaining on the
premises.  The legislature found that under the court's interpretation of the
current law, as long as a trespasser left the premises immediately upon being
ordered to do so, the trespasser could return that same day with no fear of
arrest.  The interpretation was burdensome on commercial establishments because
owners and operators were unable to meaningfully evict trespassers who may
interfere with business and commit property crimes.  Conference Committee
Report No. 81, House Standing Committee Report No. 711-98.



  Act 200, Session Laws 2000, among other things, amended §708-813(1)
by qualifying that the pre-arrest warning requirement is excepted between the
hours of 10:00 p.m. and 5:00 a.m., when most persons have no legitimate purpose
on campus.  House Standing Committee Report No. 1283-00.



  Act 50, Session Laws 2004, amended §708-814(1) to protect
public property from trespassers by applying the offense of criminal trespass
in the second degree, a petty misdemeanor, to persons who enter or remain
unlawfully on any public property after a reasonable warning or request to leave
has been given by the owner or lessee of the property.  House Standing
Committee Report No. 901-04.



  Act 181, Session Laws 2005, amended §708-814 by specifying
that a person commits criminal trespass in the second degree if the person
enters or remains on agricultural lands without the permission of the owner of
the land, the owner's agent, or the person in lawful possession of the land. 
Agricultural theft is a critical problem for Hawaii's farmers, who are
especially vulnerable to theft since farms are usually located on large plots
of land in sparsely populated areas, isolated from law enforcement.  Although
many farms have fences and other simple barriers surrounding their property,
the obstacles are easily overcome by thieves and do little to deter
trespassing.  Conference Committee Report No. 78, Senate Standing Committee
Report No. 1164.



  Act 212, Session Laws 2005, established the petty misdemeanor
offense of criminal trespass onto public parks and recreational grounds
(§708-814.5).  Act 212 also repealed the amendments made to the offense of
criminal trespass in the second degree (§708-814) by Act 50, Session Laws
2004.  Act 50 was intended to address the problem of squatters in public parks
or campgrounds, but the law was being broadly used in circumstances not related
to squatting.  Conference Committee Report No. 82.



 



Case Notes



 



  Where defendant requested court to instruct jury on
time-barred lesser included offense of simple trespass under this section,
defendant waived statute of limitations under §701-114(1)(e).  87 H. 108, 952
P.2d 865.



  Where police had probable cause to arrest defendant without a
warrant for fourth degree theft, a petty misdemeanor under §708-833, and simple
trespass, a violation under this section, and §803-6 authorized them to cite,
rather than arrest, defendant for those offenses if defendant did not have any
outstanding arrest warrants, outstanding warrant check on defendant by police
not unconstitutional.  91 H. 111 (App.), 979 P.2d 1137.



 



Decision under prior law.



  Member of public can commit trespass on public property where
member's presence is not authorized.  53 H. 634, 500 P.2d 560.



 



Hawaii Legal Reporter Citations



 



  Conflict with administrative rules.  78-2 HLR 78-781.



 



__________



§§708-813 To 815 Commentary:



 



1.  Prop. Mich. Rev. Cr. Code, comments at 196.



 



2.  Id.



 



3.  Prop. Mich. Rev. Cr. Code, comments at 197.



 



4.  H.R.S. §771-1.