What is Trespassing in the 2nd Degree in Arizona?
The crime of criminal trespass in the second degree is a class 2 misdemeanor in Arizona. It is committed when a person trespasses in a “non-residential structure” or a “fenced commercial yard.” ARS 13-1503 defines criminal trespass in the second degree in Arizona.
While a “fenced commercial yard” is a fairly common-sense concept, what can qualify as a “non-residential structure” is actually mind-bogglingly broad. It includes only retail establishments, office buildings, factories and other things you might think of when you think of non-residentials buildings. But it also includes things like automobiles, filing cabinets, and (in one case) a Salvation Army collection box.
A.R.S. § 13-1503 Defined
Under ARS 13-1503, “a person commits criminal trespass in the second degree by:
- Knowingly entering or remaining unlawfully in or on any nonresidential structure or in any fenced commercial yard.
This crime is a class 2 misdemeanor.
A person many be charged with this crime if they hop the fence of a private commercial yard. These commercial and industrial yards will often have “no trespassing” signs displayed. However, the display of a no-trespassing sign is not a necessarily a requirement to proving a case of criminal trespass, as long as there is other evidence to show that the person’s presence in the yard was unlawful.
Criminal trespass in the second degree differs from criminal trespass in the third degree in that second-degree criminal trespass is committed the moment a person enters the property. While criminal trespass in the third degree occurs when a police officer or store owner tells somebody to leave the establishment, criminal trespass in the second degree occurs merely by a person being in the structure or yard to begin with. This is because the public is generally not invited onto these non-residential structures (such as an industrial warehouse) or because the public is not invited into these structures at certain times (such as a shop or office outside of normal business hours).
What is a Non-Residential Structure?
Arizona law defines “structure” in very broad terms. Specifically, it is “any device that accepts electronic or physical currency and that is used to conduct commercial transactions, any vending machine or any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.”
A “non-residential structure” is “any structure other than a residential structure and includes a retail establishment.”
Examples of non-residential structures include:
- Commercial structures (like retail shops, warehouses, factories).
- A Salvation Army collection box. See State v. Mann, 129 Ariz. 24, 25 (Ariz. Ct. App. 1981)
- An unfinished log cabin that is not yet habitable. State v. Bass, 184 Ariz. 543, 544 (Ariz. Ct. App. 1996)
- A filing cabinet. State v. Gorla, No. 1 CA-CR 18-0075, at *2 (Ariz. Ct. App. Jan. 8, 2019)
Penalties for Criminal Trespass in the Second Degree
The possible punishment for second-degree criminal trespass is:
- Up to 4 months in jail
- Up to $750 in fines
Defenses to Criminal Trespass in the Second Degree
- Lack of evidence: To convict a person of trespass, the state must present evidence to prove guilt “beyond a reasonable doubt.” It is not enough that a police officer or state’s witnesses testifies to seeing a person charged with trespass in a restricted location. That witness must be able to convince a judge or a jury that there is no “real possibility” that the defendant is innocent. A strong cross examination of the state’s witnesses or other evidence that throws the state’s case into doubt can be enough to overcome a verdict of guilt.
How Salwin Law Can Help You
If you’ve been charged with criminal trespass, don’t hesitate to discuss your case with our experienced attorney. Salwin Law offers a free consultation on criminal trespass charges and can discuss the best possible defenses and potential outcomes for your case.
Stewart Salwin is an experienced trial lawyer who has handled trespass cases as both a prosecutor and a defense attorney. Call us and we can begin to prepare your defense immediately.