Updated: February 12, 2021
What is First Degree Criminal Trespassing in Arizona?
ARS 13-1504 states the law on criminal trespass in the first degree in Arizona. Criminal trespass in the first degree differs from other types of trespassing laws in Arizona because this crime has the potential to be a felony. However, it may also be charged as a misdemeanor.
Entering a residential structure, such as a house or an apartment, unlawfully qualifies as a felony criminal trespass. Entering a fenced residential yard qualifies as a class 1 misdemeanor, as does entering a non-fenced yard to look into the window of a home in “disregard of the inhabitant’s privacy.” In other words, this crime may be committed by hoping a home’s fence, such as into the backyard, or even going up to the front yard and peering into a house.
ARS 13-1504 also criminalizes other, less common, types of trespass, such as entering a “public service facility.”
A.R.S. § 13-1504 Defined
Depending on the type of trespassing violation, first-degree criminal trespass can be either a class 1 misdemeanor, a class 6 felony, or a class 5 felony.
Under ARS 13-1504, “a person commits criminal trespass in the first degree by knowingly:
- Entering or remaining unlawfully in or on a residential structure (class 6 felony)
- Entering or remaining unlawfully in a fenced residential yard (class 1 misdemeanor)
- Entering any residential yard and, without lawful authority, looking into the residential structure thereon in reckless disregard of infringing on the inhabitant’s right of privacy (class 1 misdemeanor)
- Entering unlawfully on real property that is subject to a valid mineral claim or lease with the intent to hold, work, take or explore for minerals on the claim or lease (class 1 misdemeanor)
- Entering or remaining unlawfully on the property of another and burning, defacing, mutilating, or otherwise desecrating a religious symbol or other religious property of another without the express permission of the owner of the property (class 6 felony)
- Entering or remaining unlawfully in or on a critical public service facility (class 5 felony)
Important Definitions to Understanding ARS 13-1504
Criminal trespass in the first degree has some specific definitions that are important in determining whether a violation of the law has taken place. These are defined in ARS 13-1501.
“Critical Public Service Facility”
- This is a structure or fenced yard that is posted with signage indicating it is a felony to trespass or signage indicating high voltage or high pressure and is used by a rail, bus, air or other mass transit provider, a public or private utility, any municipal corporation, city, town or other political subdivision that is organized under state law and that generates, transmits, distributes or otherwise provides natural gas, liquefied petroleum gas, electricity or a combustible substance for a delivery system that is not a retail-only facility, a telecommunications carrier or telephone company, a municipal provider as defined in section 45-561, a law enforcement agency, a public or private fire department or an emergency medical service provider.
- It can also be a structure or fenced yard or any equipment or apparatus that is posted with signage indicating it is a felony to trespass or signage indicating high voltage or high pressure and is used to manufacture, extract, transport, distribute or store gas, including natural gas or liquefied petroleum gas, oil, electricity, water or hazardous materials, unless it is a retail-only facility.
- Any structure, movable or immovable, permanent or temporary, that is adapted for both human residence and lodging whether occupied or not.
Example: Houses & apartments (immovable structures); trailer homes (movable structures)
“Fenced Residential Structure”
- This is real property that immediately surrounds or is adjacent to a residential structure and that is enclosed by a fence, wall, building or similar barrier or any combination of fences, walls, buildings or similar barriers.
Example: A fenced-in backyard of somebody’s house.
Penalties for Criminal Trespass in the First Degree
The possible punishment for first-degree criminal trespass depends on whether it is classified as a misdemeanor or a felony. If it is charged as a felony, then potential penalties with depend on what level of felony it is charged as and whether the defendant has any prior felony convictions. Prior felony convictions give the prosecution the opportunity to enhance the punishment and make prison time mandatory if the defendant is convicted.
Class 1 misdemeanor penalties:
- Up to 6 months’ jail
- Up to $2,500 fines
Class 6 felony potential penalties (no prior felony convictions):
- .33 to 2 years in the Department of Corrections
- Probation eligible.
Class 6 felony potential penalties (with one prior felony):
- .75 to 2.75 years in the Department of Corrections
Class 6 felony potential penalties (with two prior felonies):
- 2.25 to 5.75 years in the Department of Corrections
Class 5 felony potential penalties (no prior felony convictions):
- .5 to 2.5 years in the Department of Corrections
- Probation eligible
Class 5 felony potential penalties (with one prior felony):
- 1 to 3.75 years in the Department of Corrections
Class 5 felony potential penalties (with two prior felonies):
- 3 to 7.5 years in the Department of Corrections
Defenses to Criminal Trespass in the First Degree
- Not a “residential structure”: One of the most common types of first-degree criminal trespass charges involves the definition of a “residential structure.” To qualify as a residential structure, the building must be “adapted” for “human residency and lodging.” There is an abundance of caselaw that discusses the difference between a residential and a non-residential structure under Arizona law. For example, in State v. Bass, 184 Ariz. 543 (Ariz. Ct. App. 1996), the Arizona Court of Appeals held that an unfinished log cabin did not qualify as a residential structure. Usually, trespass to a non-residential structure will qualify only as trespass in the second degree, which is a less serious offense.
- Conduct was “unlawful”: Clearly, being in a residential structure by itself is not a crime. It is only trespass if the person is there “unlawfully.” However, sometimes a person may be invited, either implicitly or explicitly, to a home or apartment but then be dis-invited or asked to leave at some point. Whether remaining in a residential structure beyond this point is unlawful or not will depend on a variety of circumstances, such as whether the person who made the request had authority to do so; or whether the request itself was sufficiently clear. If these circumstances cannot be proven by the prosecutor beyond a reasonable doubt, then no trespass may have occurred.
How Salwin Law Can Help You
If you have been arrested for criminal trespass in the first degree, call an experienced attorney at Salwin Law Group for a free consultation on your case.
Stewart Salwin is an experienced trial lawyer who has handled trespassing cases as both a prosecutor and a defense attorney. One call, and we can begin to prepare a defense for your case immediately.