Va. Supreme Court declares: POSTED not good enough

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According to the Virginia Supreme Court, a property being posted is not enough to be convicted of trespassing. There must be proof the posting was by someone authorized to post.

The opinion, Baker v. Commonwealth, could have implications for those who carry.

In this appeal, we consider whether the Commonwealth is required to establish as an element of the offense of trespassing that a “no trespassing” sign on private property was posted by a person authorized by the statute to exclude entry upon the property.

Proof of the existence of the “no trespassing” signs on the property alone is insufficient to satisfy the elements of trespass set forth in Code § 18.2-119. Without evidence that a “no trespassing” sign was posted by one of the enumerated persons authorized by the statute to prohibit entry upon the property, the Commonwealth failed to put on sufficient evidence of Baker’s guilt. For the reasons set forth above, we therefore reverse the judgment of the Court of Appeals, vacate Baker’s conviction under Code § 18.2-119, and dismiss the indictment.

Reversed, vacated, and dismissed.

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Repeater wrote:

According to the Virginia Supreme Court, a property being posted is not enough to be convicted of trespassing. There must be proof the posting was by someone authorized to post.

The opinion, Baker v. Commonwealth, could have implications for those who carry.

In this appeal, we consider whether the Commonwealth is required to establish as an element of the offense of trespassing that a “no trespassing” sign on private property was posted by a person authorized by the statute to exclude entry upon the property.

Proof of the existence of the “no trespassing” signs on the property alone is insufficient to satisfy the elements of trespass set forth in Code § 18.2-119. Without evidence that a “no trespassing” sign was posted by one of the enumerated persons authorized by the statute to prohibit entry upon the property, the Commonwealth failed to put on sufficient evidence of Baker’s guilt. For the reasons set forth above, we therefore reverse the judgment of the Court of Appeals, vacate Baker’s conviction under Code § 18.2-119, and dismiss the indictment.

Reversed, vacated, and dismissed.

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Ha ha, I see we have been reading the same web page this afternoon! I just posted a list of relevant opinions.

As I noted on my post, I suppose that in reality this only means that in future trespass cases, the Commonwealth's Attorney will trot out an authorized person to say they posted the signs.

TFred

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So if I post my property, what proof do I need that I posted it?

Did the one who posted in this case not testify?

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Glock27Bill wrote:

So if I post my property, what proof do I need that I posted it?

Did the one who posted in this case not testify?

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As we (almost) all like to say, IANAL, but from reading this opinion and others, I do believe that these cases are decided based on what happened, not necessarily what is right or wrong. I don't think they can go "fix" things at this level.

So to answer your question, yes, I assume that in the original case, the Commonwealth did not provide any proof that the poster was authorized, and that was the issue. I'm sure it would be trivial at this point to find out the answer to that question, but that is no longer the question at hand, but rather the process that occurred along the way.

That's why I said that I suspect all CA's offices from now on will drag out an authorized poster in every trespass case, so other than adding an extra step and witness, I doubt this case will have any particular impact, other than the rare occasion where such a person cannot be found.

TFred

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TFred wrote:

Glock27Bill wrote:

So if I post my property, what proof do I need that I posted it?

Did the one who posted in this case not testify?

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As we (almost) all like to say, IANAL, but from reading this opinion and others, I do believe that these cases are decided based on what happened, not necessarily what is right or wrong. I don't think they can go "fix" things at this level.

So to answer your question, yes, I assume that in the original case, the Commonwealth did not provide any proof that the poster was authorized, and that was the issue. I'm sure it would be trivial at this point to find out the answer to that question, but that is no longer the question at hand, but rather the process that occurred along the way.

That's why I said that I suspect all CA's offices from now on will drag out an authorized poster in every trespass case, so other than adding an extra step and witness, I doubt this case will have any particular impact, other than the rare occasion where such a person cannot be found.

TFred

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I really don't think it will have any effect on 98% of the cases. I go to the Magistrate and get the warrants and have to testify at the trial. Most of the time the CA doesn't even get involved.

Only once, has a LEO obtained the warrant and I still had to testify.

What this will do, is stop LE from using a posted sign as a replacement for the largely unenforceable, loitering law.

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take a photo of you hanging the sign, stick it in an evelope, address it to yourself, drop it in the mail, stick it in a safe place and don't open it....no arguements.

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This is a good case i think - S. Ct. syaing don;t apply criminal tresspass law willy nilly - "Without evidence that a "no trespassing" sign was posted by one of the enumerated persons authorized by the statute to prohibit entry upon the property, the Commonwealth failed to put on sufficient evidence of Baker’s guilt."

As applied to criminal tresspass for refusing the authorized agent's order to leave a premises, I think the ruling reinvfroces the general notion that the police cannot become agents of owners and order people off premises - the true owner or his authorized agent must do it.

On the other hand, nobody should ever want to to be litigating at a criminal defendant where the government is in charge of the process, so i suggest always erring on the side of caution when told to leave the premises of any place - i.e., beat feet.

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I bet we start seeing trespass notices with a space for the property owner to sign and date.

I wonder how long it will take for the courts to decide if a "no guns" sign automatically means you are trespassing. IIRC property rules are unenforceable; the owner/agent must identify a rule violation, then attempt to remove the party, before the police can come and arrest.

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paramedic70002 wrote:

I bet we start seeing trespass notices with a space for the property owner to sign and date.

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Good, let them own it (their policy).

If it's a small business, they can do without our patronage.

If it's a place with a corporate office, I'm sure some of you shrewd folks around here can come up with some fun wording when you call Corporate.

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There are decisions that clearly demonstrate that running away from the police is not, in and of itself, sufficient to rise to "reasonable, articulatable suspicion" that a crime was committed, is being committed, or is about to be committed.

[align=center]Ignoring or Running From Police Does Not Give Police Right to Seize and Pat Down for Firearms[/align]

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[align=left]Jones v. Commonwealth, __Va. __, __S.E.2d __ (2008), [/align]

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[align=left]"[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business." Id. at 125 (citing Florida v. Royer, 460 U.S. 491 (1983)). Moreover, a "'refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.'" Id. (quoting Florida v. Bostick, 501 U.S. 429, 437 (1991)). That was precisely what occurred here. Under these circumstances, Jones' failure to obey the officer's instructions cannot serve as the justification for his seizure. Simply put, Jones' actions were not on par with those of Wardlow in providing reasonable suspicion to police that criminal activity "[was] afoot." Because we hold that the trial court should have suppressed the handgun unlawfully seized from Jones' person, we need not and, thus, do not address the issue of whether the Commonwealth established that the handgun was a firearm within the meaning of Code §§ 18.2-308 and 18.2-308.2." [/align]

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[align=left]It has always been necessary for the prosecution to prove each and every element of the crime as defined in the legislation criminalizing the particular behavior. Often the courts are lax in "presuming" an element has been proved; rarely does a defendant challenge the proof of all elements.[/align]
[align=left]In this case the prosecution failed to present the required proof and the defendant somehow knew that. Whether or not the defendant was otherwise guilty of trespass he got off on a technicality. CAs are now on notice to cover all the bases. An affidavit from the property owner, agent or leasee would have sufficed.[/align]
[align=left]There is a lesson for us in here, as well as the CAs. Know what the law requires. Or hire an attorney that knows. The hoops were put there for a purpose - make them jump through each and every one cleanly.[/align]
[align=left]stay safe.[/align]
[align=left]skidmark[/align]

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One other thing occurs to me. People keep putting up signs with the word, "POSTED" in huge letters. But all that word means is, "Hey, I put up a sign!". Big deal. It does NOT mean, "no trespassing".

If the sign doesn't say, "no trespassing" in a way that's conspicuous, it doesn't mean anything at all. And, by the way, red letters on a black background, like those signs they sell at the hardware store, are not "conspicuous". Three-fifths of the male population of Northern European ancestry (which includes lots of folks who "self-identify" as "black") have red-green color blindness to some degree. To such people, dark letters on a dark background don't mean spit - it's not "conspicuous".

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user wrote:

One other thing occurs to me. People keep putting up signs with the word, "POSTED" in huge letters. But all that word means is, "Hey, I put up a sign!". Big deal. It does NOT mean, "no trespassing".

If the sign doesn't say, "no trespassing" in a way that's conspicuous, it doesn't mean anything at all. And, by the way, red letters on a black background, like those signs they sell at the hardware store, are not "conspicuous". Three-fifths of the male population of Northern European ancestry (which includes lots of folks who "self-identify" as "black") have red-green color blindness to some degree. To such people, dark letters on a dark background don't mean spit - it's not "conspicuous".

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That's part of the reason for white signs with black lettering. You cannot use color blindness as a defense against those. They are highly contrasting with non-affected colors.

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Glock27Bill wrote:

So if I post my property, what proof do I need that I posted it?

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I'm not sure if this will really answer your question or not, but I recently noticed a "posted" sign I had never seen before. It had information containing the property address, the plat number, the owner's name and contact number.

I had forgotten this until I saw your question, which now makes me wonder if the owner posted his property in this manner as an attempt to address the legal question of who posted the property. Just a thought.

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Back when I was much younger and hung my hat in another state, "Posted" referred to the fact that the property owner had gone down to the courthouse and recorded the fact that he had placed "No Trespassing" signs around the full perimiter of his property in conformance with the existing law [relating to size of signs, distance between signs, hight of signs, etc.]. The "Posted, No Trespassing" signs meant that a cop could rely on the fact that the property owner had put them up and get the info at the courthouse rather than have to summons the property owner for the hearing.

I am not aware of any such process here in Virginia. Any legal beagle know if you can do that?

stay safe.

skidmark

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skidmark wrote:

Back when I was much younger and hung my hat in another state, "Posted" referred to the fact that the property owner had gone down to the courthouse and recorded the fact that he had placed "No Trespassing" signs around the full perimiter of his property in conformance with the existing law [relating to size of signs, distance between signs, hight of signs, etc.]. The "Posted, No Trespassing" signs meant that a cop could rely on the fact that the property owner had put them up and get the info at the courthouse rather than have to summons the property owner for the hearing.

I am not aware of any such process here in Virginia. Any legal beagle know if you can do that?

stay safe.

skidmark

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You can pretty much record whatever you want to with the Clerk's office, providing that certain types of documents must be notarized. I've never heard of anyone doing that in Virginia, though they do it a lot in W.Va., at least in the county where my residence is located. They publish big ads in the newspaper, too. There's no legal requirement in either state, as far as I know (I'm not an attorney in W.Va.), so the only reason I can think of why they'd do it in "the rural part" of W.Va. is because of the very high probability of someone being accidentally shot while trespassing. Having recorded the "no trespassing" thing in land records, and advertising in a local paper of adequate circulation could be a defense in a civil case, because it provides "constructive notice" to the world that the world should "stay off my dirt,if the world doesn't want to get shot."

I, myself haven't done those things, though I suppose I ought to, as I'm pretty liberal about my own shooting out there. I warn the neighbors whom we permit to graze cattle on the land, but otherwise, anything that happens to get in my way while I'm shooting out there could get seriously punctured. (It's a big chunk of land, heavily wooded, in a very hilly area; I set my range up in the ravine that passes smack dab down the middle of the property, which my wife refers to as "the meadow", because it's a flood plain for a creek named after her Eighteenth Century ancestor who first settled the region. No chance of hitting anything outside my own property.)

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user wrote:

One other thing occurs to me. People keep putting up signs with the word, "POSTED" in huge letters. But all that word means is, "Hey, I put up a sign!". Big deal. It does NOT mean, "no trespassing".

If the sign doesn't say, "no trespassing" in a way that's conspicuous, it doesn't mean anything at all. And, by the way, red letters on a black background, like those signs they sell at the hardware store, are not "conspicuous". Three-fifths of the male population of Northern European ancestry (which includes lots of folks who "self-identify" as "black") have red-green color blindness to some degree. To such people, dark letters on a dark background don't mean spit - it's not "conspicuous".

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I guess it also depends on the local dialect.

Apparently the Hunt Clubs near my farm think NO TRESPASSING really means WELCOME.:X

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As to the question of the process of posting property. At least in Prince William, you can file a letter with the magistrate and copy the police chief and Sheriff. The letter must state that you have the right to control the property and that you will testify in court should the need arise. If you want the police to tag anyone found on the property during a routine patrol, add that to the letter, and include contact information on the signs. Then you have to post the property using the lawful means described in the code.

For a long time now we have been using yellow signs with black lettering. They are made out of some kind of Tyvec paper. There is a place on the bottom for the owner to sign them and a place for a contact number. These seem to work very well because even if you were impaired in some way the high contrast yellow with black letters would still be visible.

That said, I do not see anything in the law that would provide relief from the law due to some sort of impairment such as color blindness. If the signs are of sufficient contract to meet the requirements for the bulk of the population, that would meet the legal requirements. Seems to me if the guy can drive to the property to trespass on it, he can probably see red well enough.

I wish I had a dollar for every idiot that tried to tell me they did not see the bright yellow signs at eye level every 50 feet along the property line. They seem to be able to see my side arm just fine because they usually start running when I get within about 100 yards of them.

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Copying the magistrate and/or police with the no trespass notice doesn't do anything as to the notice requirement. What it's intended to do, presumably, is to give local law enforcement notice that you mean to enforce your property rights. I suspect that's a way Pr.Wm. has of making people think they're actually accomplishing something.

If you wanted to have someone charged criminally with trespass, you'd still have to prove notice. That's different from the civil variety, of course, in which no notice other than what's already in land records is necessary. The criminal statute has special requirements.

Your yellow signs are fine as to the "conspicuous" requirement, but if they say, "POSTED" in big black letters, rather than "KEEP OUT" or "NO TRESPASSING", then they're probably legally ineffective.

As to the color-blindness, and again, only as to criminal prosecutions, the Commonwealth would have to prove that the information on the signs was "conspicuous" as to that particular defendant. The population as a whole is not on trial.

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user wrote:

Copying the magistrate and/or police with the no trespass notice doesn't do anything as to the notice requirement. What it's intended to do, presumably, is to give local law enforcement notice that you mean to enforce your property rights. I suspect that's a way Pr.Wm. has of making people think they're actually accomplishing something.

If you wanted to have someone charged criminally with trespass, you'd still have to prove notice. That's different from the civil variety, of course, in which no notice other than what's already in land records is necessary. The criminal statute has special requirements.

Your yellow signs are fine as to the "conspicuous" requirement, but if they say, "POSTED" in big black letters, rather than "KEEP OUT" or "NO TRESPASSING", then they're probably legally ineffective.

As to the color-blindness, and again, only as to criminal prosecutions, the Commonwealth would have to prove that the information on the signs was "conspicuous" as to that particular defendant. The population as a whole is not on trial.

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Like I said. The letter to the police is necessary to get them to actually enforce the signs without a specific call from the land owner.

The "Notice" you are talking about was not the subject of my post. That is related to putting a specific person on notice that they must stay off of your land. In some trespass cases the court will require that the accused be given individualized prior notice to stay off your land before the court will hear the case, or prosecute the person. That notice is delivered by registered mail or process server. If after that the person comes on the land then the court will proceed with the charges. But you still need to have the letter on file with the local police or they will not make the arrest or issue the summons.

All of my signs clearly state no trespassing and then go on to list a number of other more specific things that are not allowed on my property without my EXPRESSED WRITTEN PERMISSION.

I really do not understand why people think that everyone that posts here is a rank amateur at this sort of thing. I have been prosecuting trespassers for years. I had one guy that thought it would be a good idea to take a deer that was grazing in my drain field, and out of season to boot. This thing was so young you could still make out spots in its coat. After shooting it he came into the yard and dragged it throough the snow to his back door with me trailing him all the way. When the Game Warden arrived I showed him from the porch where the deer had been, and where the shot had been fired from and he took notice that the shot had to have been fired directly at my house. A fact that had not been lost on me either.

In any case I showed him the signs along the property line and there was no problem with them in his mind. The charges included taking a deer out of season, trespass with felonious intent, Taking game by Illegal Method, and discharge of a firearm withing 100 yards of an inhabited dwelling. The Warden followed the blood trail right to the guys back door, where resisting arrest was added to the list.

I have prosecuted 12 others on trespass charges, so I think I understand the system in Prince William, but thanks for playing.:lol:

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Hawkflyer wrote:

[...]

The charges included taking a deer out of season, trespass with felonious intent, Taking game by Illegal Method, and discharge of a firearm withing 100 yards of an inhabited dwelling. The Warden followed the blood trail right to the guys back door, where resisting arrest was added to the list.

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Wow, I bet you have fun summer block parties in your neighborhood!

TFred