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sixpanel
11-19-2004, 03:18 AM
In NORTH CAROLINA (NC only please, guys), you can be charged/convicted of 2nd degree trespassing if you remain on the premises of another after being told to leave (there are other means of being charged for 2nd degree, but I am referring to this scenario only). Okay, now for the scenario:

You are dispatched to a residence in your city/county. When you arrive, you meet with Mr. Smith and his daughter, Sue. Also present is Robert, Sue's boyfriend. Mr. Smith and Sue want Robert to leave. You ask if Robert lives there. They all tell you Robert came down from Virginia, and has been staying with Mr. Smith and Sue for 2 months, but he does not pay any bills. All of his belongings are there. Naturally, it would appear that he has established residence at that home. Can you, as a police officer, make Robert leave?

MY ANSWER: No. Robert has established residence there, so he would need to be EVICTED. Two months seems like a very reasonable time to assume that is Robert's residence.

That is what we were taught in BLET (Basic Law Enforcement Training). However, I had this situation happen tonight, and the Magistrate said to go ahead and charge him, because he is not paying bills. We were specifically told that (regardless of whose name is on the lease, or who is paying the bills) any person who has ESTABLISHED RESIDENCE there MUST be evicted. The Magistrate stated that, at the last Magistrate's conference, they were told that paying of bills is what establishes residence, not simply having all of your belongings at the residence. What are they basing that on? Has the law changed? If so, can you point me to case law, or amendments? Any help would be appreciative.

jnhdrac
11-19-2004, 07:25 AM
In order to be a "resident" he must contribute to the maintenance of the household, such as pay bills. It used to be if you stayed there long enough you were a resident. Now, you must pay rent or somehow pay for the maintenace of the household, for example paying bills, buying groceries, probably even doing household chores such as fixing the roof etc. If you just flop there for 2 months, you are still a guest and can be arrested for trespassing. I know the way my department treated these situations changed about 4-5 years ago, but I do not know if it was a law change or a policy change. It is easier now though.

sixpanel
11-19-2004, 02:51 PM
I think it would be better that way, because of all the bums that mooch off people, but I'd really like to see some case law or something. I just don't feel right about enforcing something that I haven't actually seen in writing. Oh well. If you come across something, please send it my way. Thanks for your time!

SFairman
11-19-2004, 03:05 PM
Post deleted

ChesCopPodz
11-19-2004, 05:03 PM
We have similar laws here in VA. My usual cut off point is receiving mail. If the person receives mail at that address, then to me they have established residency. Also if the complaintant makes statements such as "I let him move in with me" or "we decided to live together" same deal. This is one of those very grey areas that we face and you will get 100 different opinions from 1-- people.

sixpanel
11-20-2004, 01:05 AM
I wish North Carolina would take some initiative and just put it in law that you must be paying bills or have your name on the lease. It would make life so much easier.

SFairman, that is what I thought. I knew that was what they taught me, but officers with more experience were telling me that it had not been that way in years...I think they are misled. Where are you in NC?

Dave2886
11-20-2004, 01:06 AM
Originally posted by sixpanel
In NORTH CAROLINA (NC only please, guys), you can be charged/convicted of 2nd degree trespassing if you remain on the premises of another after being told to leave (there are other means of being charged for 2nd degree, but I am referring to this scenario only). Okay, now for the scenario:

You are dispatched to a residence in your city/county. When you arrive, you meet with Mr. Smith and his daughter, Sue. Also present is Robert, Sue's boyfriend. Mr. Smith and Sue want Robert to leave. You ask if Robert lives there. They all tell you Robert came down from Virginia, and has been staying with Mr. Smith and Sue for 2 months, but he does not pay any bills. All of his belongings are there. Naturally, it would appear that he has established residence at that home. Can you, as a police officer, make Robert leave?

MY ANSWER: No. Robert has established residence there, so he would need to be EVICTED. Two months seems like a very reasonable time to assume that is Robert's residence.

That is what we were taught in BLET (Basic Law Enforcement Training). However, I had this situation happen tonight, and the Magistrate said to go ahead and charge him, because he is not paying bills. We were specifically told that (regardless of whose name is on the lease, or who is paying the bills) any person who has ESTABLISHED RESIDENCE there MUST be evicted. The Magistrate stated that, at the last Magistrate's conference, they were told that paying of bills is what establishes residence, not simply having all of your belongings at the residence. What are they basing that on? Has the law changed? If so, can you point me to case law, or amendments? Any help would be appreciative.
That mag is full of crap. Most people don't know it, but in NC the magistrates get about 11 weeks of law training. That's it. Every single certified police officer in NC has more law training than magistrates receive, and infinately more experience.

Paying of bills is irrelevent. If someone lives with someone for over a week or two, and that is their only residence, they need to be evicted. I usually like to make sure the person in question has belongings there, such as a toothbrush, or that they get mail, but the bottom line is that if they have stayed there for at least a week, that's their house too. There are a couple exceptions, such as children over the age of 18 still living at home, but almost everyone else needs to be evicted. Yeah, that law sucks, but there it is.

I'd speak to your department's attorney if you need further clarification, and I'd definately let someone know about that retard magistrate.

Bodie
11-20-2004, 10:26 AM
Trespassing Laws ::::: In OHIO :::::: Are the best there is :::::::::
"Trespassers will be shot..... Survivors will be SHOT AGAIN>>>>

sixpanel
11-20-2004, 04:28 PM
Dave2886, that is EXACTLY what I told the other officers on the scene that night. I'd really like to see some case law to be able to give to that magistrate. Do you know of any?

Dave2886
11-20-2004, 04:34 PM
Originally posted by sixpanel
Dave2886, that is EXACTLY what I told the other officers on the scene that night. I'd really like to see some case law to be able to give to that magistrate. Do you know of any?
I'm sorry, but I don't. I've never needed it. Like I said, just ask your department's police attorney. They should be able to square you away. But anyone who tells you different about kicking people out of a house without an eviction notice doesn't know what they're talking about.

Mike G from NC
11-22-2004, 05:24 PM
NC Mags stupid????Who would have thought of such a thing they are up to speed on everything including patrol techniques..My last dept I worked for the county didnt even have 24hr Mags(Jones County)The one where I got offered a job with today! has 24hr Mags(Onslow County).I hated to arrest someone after 5pm.You had to wait 2 or 3 hours.

sixpanel
11-22-2004, 08:56 PM
Ouch! I'd go nuts if I had to wait for a magistrate. Of course, ours are so freaking slow that we end up waiting anyway. They are 24 hours though, so that's a plus.

Dave2886
11-22-2004, 11:31 PM
You guys have to actually bring your 72 before a mag? In the great state of Mecklenburg, at least we can just bring 'em to jail and be done with it. All we have to do is turn in our arrest sheet and affidavit, and the deputies do the rest. I guess there is something good about working here after all! :D

GCPD0171
11-23-2004, 05:02 AM
Sorry Dave, the rules have changed. I tried to find the link that the NC Attorney Generals Office had but couldn't I did find this link from the Justice Academy. I think it answers the question Sixpanel was asking and backs up what the Magistrate told him.
http://www.jus.state.nc.us/NCJA/mar99.htm

I also was taught that just living somewhere was considered establishing a residence. Now it seems that mooches aren't protected anymore.

Dave2886
11-23-2004, 12:46 PM
Hmm..I looked at that scenario, and it never specified how long he'd been staying there. Also, the date on that is from 1999. When I went through the academy in Feb/2001, we were told to handle those situations in the manner that I previously posted, and every FTO I had, and every officer I work with does things the same way. Hell, maybe that's just how we do it in Meck. county, but I assumed that it was the same state-wide.

jnhdrac
11-23-2004, 01:33 PM
I may be missing something Dave, but we work for the same organization ( I think) and the laws/policy changed in these situations about 3 or 4 years ago. Alot of times I will take a trespass report and send the complainant to the magistrate if I can not feel confident one way or the other, but if one guy says he has never paid rent, bills, etc., and the person in control of the property wants him out, he either leaves or goes to jail. Just my experience, but the way they teach all this stuff has changed (not that long ago).

Dave2886
11-23-2004, 07:28 PM
Originally posted by jnhdrac
I may be missing something Dave, but we work for the same organization ( I think) and the laws/policy changed in these situations about 3 or 4 years ago. Alot of times I will take a trespass report and send the complainant to the magistrate if I can not feel confident one way or the other, but if one guy says he has never paid rent, bills, etc., and the person in control of the property wants him out, he either leaves or goes to jail. Just my experience, but the way they teach all this stuff has changed (not that long ago). You work CMPD? If so, they must do things differently in whatever district you're in. In my district, not only do we do things the way I previously stated, but even when we do make an arrest for trespassing we don't do an offense report for that.

jnhdrac
11-23-2004, 09:06 PM
Look in the CMPD Police Law Bulletin, Nov 2000, Volume 18 Number 11. I can not figure out how to post a link, but do a google search "Police Law Bulletin" + trespassing + freeloader. Situation #4 in that article appears to be what we are talking about.

I work N. Tryon. I agree most people do not follow the law and policy on taking reports, but that does not change the law or the policy.

Dave2886
11-23-2004, 11:55 PM
Is it possible that they have changed things since that law bulletin back in 2000? I'm not doubting you, but I just have a hard time believing that they would teach something totally different than the law in the academy, not to mention every FTO I had telling me the same thing. If the law has NOT changed, I'd say some in-service training on the matter is in order!

sixpanel
11-24-2004, 02:24 AM
In the great state of Mecklenburg

Nothing else needs to be said... ;)

That was an interesting publication. I, too, wonder if it has changed since 1999, though, because I graduated BLET in June of 2003... they weren't teaching it that way then. Can you find a more recent publication?

GCPD0171
11-24-2004, 03:21 AM
Couldn't find anything else. I emailed one of the Justice Academy lawyers to see if I could get some more information. Its a holiday week so I'm not expecting anything back soon. I'll post whatever I find.

jnhdrac
11-24-2004, 07:56 AM
The "establish residence" idea was taught years ago, and should have been replaced around 2000. I know this is shocking, but even FTOs and academy instructors are sometimes wrong, or at least behind the times.

sixpanel
11-24-2004, 10:55 AM
I just received a telephone call from Pat O'Neal at the Justice Academy (Legal Center). He advised me that the article that was posted on here is still "the law" but that I should consult with my district attorney / judges to determine how it is going to be handled in my jurisdiction. As it stands, I am going to follow the law until told otherwise.

GCPD0171
11-24-2004, 01:59 PM
Okay Pat is who I emailed so guess that answers that. I think our Magistrates (Gaston)are divided. The older ones stay with the old way and the newer ones go with the new.

sixpanel
11-24-2004, 04:51 PM
I am going to take Mr. O'neal's advice and consult my district attorney (Bill Kenerly, Rowan County). When I am able to do that, I'll update you guys on the official stance of Rowan County :). HAPPY THANKSGIVING!

sixpanel
11-24-2004, 09:57 PM
Here is a copy of the email I received from Pat O'Neal at the Justice Academy:


The 1999 commentary by Kevin Smith is still our last word on the subject. Kevin wrote it after consulting with a number of experts in criminal and property law. There has been no change in the law since. We have reviewed it from time to time and believe that it is still correct. We recognize that many people--including many magistrates--disagree. They believe in the "Rule of the Toothbrush," that anybody who hangs out in somebody else's premises long enough acquires some mysterious legal right to stay there. They can't explain the theory behind this right; they just know it's there. And the only way to extinguish this unexplained right is through a months-long eviction process. In-service training in some departments--and, unfortunately, training in some BLET programs--just reflects what the local magistrates do. This makes sense to some degree in that what the magistrate says is the law in his courtroom--and continues to be the law until he changes his mind or is overruled by a higher court. I suggest that you consult with your department's legal advisor and the DA's office. They will have a sense of what your judges want you to do. As all cops know, sometimes the law as contained in the lawbooks is entirely different from the law as practiced on the street. We are confident that Kevin's memo is a correct expression of the law. Making it work is something else.

Pat O'Neal
Agency Legal Specialist
North Carolina Justice Academy