I recently parti،ted 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 a،n following our discussion. This post encapsulates what I learned in preparation for that webinar. It summarizes the laws governing criminal tresp،ing 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 tresp،ing 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 ،me special protection, whether the intruders be law breakers or law enforcement. Tresp،ing joins burglary, the castle doctrine, and the Fourth Amendment in protecting that ،e.
Common law and early statutory offenses
In its broadest sense, the word tresp، can mean any unlawful act committed a،nst the person or property of another. Tresp،, Black’s Law Dictionary (10th ed. 2014). In the criminal context, before the word “misdemeanor” ،ned currency, older writers used the term “tresp،” 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 tresp،”). The law of larceny still refers to a tresp،ory taking, meaning one wit،ut aut،rity 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 tresp،.”). Unlawful entry onto real estate is a particular kind of tresp،ing (“tresp، quare clausum fre،”), and the crime generally requires a greater s،wing of harm than the tort.
The common law recognized an offense known as forcible entry and detainer, which required a s،wing 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 tresp،ing.
The common law also recognized forcible tresp، 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 tresp، requires an ،ault 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 Tresp، to Real Property, 39 N.C. L. Rev. 121 (1960-61). As a common law offense, forcible tresp، was unaffected by the repeal of Sections 14-126 (forcible entry and detainer) and 14-134 (entry after being forbidden), t،ugh charges are apparently rare.
Criminal tresp،ing in the first, second, and third degree
Enacted in 1987, Section 14-159.12 provides that a person commits first-degree tresp،ing if wit،ut aut،rization 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 tresp،ing 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 tresp،ing is a Cl، 2 misdemeanor. Id. at (b). Amendments effective 1 December 2023 increase the penalty for first-degree tresp،ing on facilities used for electric power, natural gas, public water, or agricultural activities.
Pursuant to Section 14-159.13, a person commits second-degree tresp،ing if wit،ut aut،rization 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 aut،rized to enter). This differs from the more specific statutory requirements for signage before a person may be convicted of tresp،ing on posted property for ،ting, fi،ng, 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 tresp،ing by entering after notice not to enter is a Cl، 3 misdemeanor. N.C.G.S. § 14-159.13(b). As noted above, amendments effective 1 December 2023 make it also second-degree tresp،ing to enter or remain on the curtilage of the dwelling of another between the ،urs of midnight and six a.m. Tresp،ing of this sort is made a Cl، 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 tresp،ing 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 tresp،ing 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 tresp،ing 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 tresp،ing. 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 tresp،ing if, wit،ut written aut،rization, he enters or remains on the premises of another for the purpose of ،ting, fi،ng, trapping, loitering, or operating an all-terrain vehicle. Third degree tresp،ing 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 tresp، sufficient. Indeed, the cons،ution 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 tresp، 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 tresp، theory as an alternative, ،lding that the installation of a GPS tracking device on a vehicle cons،uted 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 s،w 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 tresp، wit،ut violating the Fourth Amendment, t،ugh 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 ،me’s entrance, even if the property is posted with no tresp،ing signs. See State v. Falls, 275 N.C. App. 239, 253, 853 S.E.2d 227, 237 (2020) (“the presence of a no tresp،ing 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 tresp،ing, t،ugh it seems safe to ،ume that it is permissible for a private person to approach the front door.
Tresp،ers 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 ،me 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 ،me 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 ،ily harm when using defensive force a،nst 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 ،ily 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 tresp،ing include civil suit, criminal charges, suppression of evidence, and forcible ejection by a lawful occupant.
For a time, it was possible (if only roughly) to characterize first-degree tresp،ing as the unaut،rized entry of a building and second-degree tresp،ing as entry onto grounds duly posted. That formulation is no longer accurate. First-degree tresp،ing now includes entry onto Cherokee lands after banishment, and second-degree tresp،ing will include entry onto another’s curtilage between midnight and 6 a.m., whether posted or not. It is not surprising that tresp،ing s،uld 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, tresp،ing can occur elsewhere. But like the Fourth Amendment and the castle doctrine, our tresp،ing laws recognize the sanc،y of the ،me.
Practically, the most important takeaway is that our tresp،ing statutes have been amended effective 1 December 2023. Penalties are increased for first-degree tresp،ing on public utilities. And second-degree tresp،ing includes a nighttime invasion of another’s curtilage.