2012 Hawaii Revised Statutes
TITLE 37. HAWAII PENAL CODE
708. Offenses Against Property Rights
708-815 Simple trespass.

§708-815 Simple trespass. (1) A person commits the offense of simple trespass if the person knowingly enters or remains unlawfully in or upon premises.

(2) Simple trespass is a violation. [L 1972, c 9, pt of §1; gen ch 1993]

COMMENTARY ON §§708-813 TO 815

The essence of the offense of criminal trespass is "entering and remaining unlawfully," as defined by §708-800. It is basic to the offense that the actor have some knowledge that the actor's presence on the premises is not licensed, invited, or privileged.

Under that definition, a person does not transgress when he enters or stays in a place open at the time to the public, unless he is specifically warned not to enter or remain. The fact that some portions of the premises were open to the public, including the defendant, does not mean that he has a privilege with reference to closed-off portions.[1]

The simple offense (i.e., §708-815) is defined in terms of entering or remaining on premises with knowledge of this fact ("...the person knowingly enters or remains unlawfully in or upon premises"). Simple trespass is a violation.

Two degrees of aggravated trespass are provided by the Code. The most serious aggravation occurs when the trespass is to a dwelling as defined by §708-800. Section 708-813 (criminal trespass in the first degree), makes this offense a misdemeanor. "The alarm caused to inhabitants by the entry, and the likelihood of violence which may injure someone, including the intruder, are sufficient to warrant increased penalties."[2] A second, less serious aggravation, occurs when the premises are enclosed or fenced. Under §708-814 (criminal trespass in the second degree), this kind of trespass is made a petty misdemeanor.

Act 55, Session Laws 1974, amended §708-813(1), relating to criminal trespass in the first degree, by making it an offense for a person to knowingly enter or remain unlawfully in or upon the premises of a hotel or apartment building in addition to a dwelling. The law was changed primarily to deal with the problem of prostitution in hotels and apartments. Senate Standing Committee Report No. 699-74. Section 708-813 was also amended by Act 32, Session Laws 1975, which added subsection (2). The purpose of the new language was to aid ranchers in proceeding against rustlers. The Legislature found that it was difficult to catch rustlers in the act. Under the new subsection, one apprehended in an enclosed area in possession of a firearm could be punished as a misdemeanant.

Act 49, Session Laws 1974, amended §708-814, criminal trespass in the second degree, to include the situation where a person is unlawfully on school premises and refuses to leave after reasonable warning or request to leave. In explaining the change, the House Committee on Judiciary and Corrections in Standing Committee Report No. 727-74 stated:

"Your Committee understands that there are some schools without fences and under present statutes, persons trespassing on such premises commit the offense of simple trespass. Simple trespass is a violation and is enforceable only by means of a penal summons. Your Committee finds that persons trespassing on school premises, whether fenced or unfenced, should be subject to the offense of criminal trespass in the second degree, a petty misdemeanor."

Where adverse circumstances, e.g., flood, storm, etc., require one to take refuge upon the premises of another, such action is not penal because it comes within the choice of evils justification set forth in §703-302.

Any trespass statute which is applied in situations involving political or religious solicitation becomes subject to constitutional scrutiny. As the drafters of the Proposed Michigan Revised Criminal Code, one of the sources from which this chapter of the Code is derived, noted:

This activity does not fall within §[708-815] because (a) in most instances the entry is privileged by custom and therefore is not unlawful within the definition of 'enter or remain unlawfully' in §[708-800], if the owner does not post his premises or give specific notice to the religious or campaign worker to stay off or leave the premises there is no change in the customary law, and (b) even if the owner does not desire the person to enter, the latter does not 'know' within the meaning of §[702-206(2)(b)] that he is entering or remaining unlawfully unless the notice is communicated to him. If he forces his way into an enclosure that is posted or into a dwelling, with the knowledge that his presence is not wanted he fits the language of §§[708-813 to 815], but can still contend that the statute as to him under the circumstances infringes on his freedoms of speech or religion. Even if he prevails with regard to the prosecution against him, however, this does not void the statute as far as cases not involving these freedoms are concerned, under well-established constitutional case law.[3]

Previous Hawaii law imposed a single low-grade misdemeanor sanction for trespass.[4] The offense was not differentiated, as in the Code, and did not account adequately for the varying circumstances in which trespass may arise.

SUPPLEMENTAL COMMENTARY ON §§708-813 TO 815

Act 177, Session Laws 1981, rearranged the former text and added subsection (1)(c) to §708-813, formerly §708-814(1)(b), thereby upgrading trespass upon school premises from a petty misdemeanor to a misdemeanor. The increase in penalty was designed to curb vandalism and violence on school campuses, much of which appeared to be caused by person unlawfully there. Senate Standing Committee Report No. 720, House Standing Committee Report No. 627.

Act 201, Session Laws 1979, added §708-814(c) to upgrade the penalty for the acts referred to from a violation to a petty misdemeanor. The Legislature found that the police would not place persons charged with simple trespass under physical arrest without a penal summons being first obtained. In upgrading the offense, the Legislature sought to give retailers a more effective means of removing persons who harass or inconvenience customers or cause a loss of sales. House Standing Committee Report No. 984.

Act 89, Session Laws 1996, amended §708-813(1) by clarifying that the provisions of the subsection pertain to both public and private schools. Conference Committee Report No. 64.

Act 146, Session Laws 1998, addressed the problem of trespassing and amended §708-814 by requiring that written warnings [to leave] be given by the owner or lessee of the premises or their agent, or by a police officer. In State v. Sadler, 80 H. 372, 375 (1996), the Hawaii intermediate court of appeals held that the offense of criminal trespass in the second degree under §708-814(1)(b) "contemplates a warning or request contemporaneous with a person entering or remaining unlawfully on the premises". Therefore, in order to convict a person for criminal trespass in the second degree, the person must refuse a warning or request to leave that is made contemporaneously with the person's entering or remaining on the premises. The legislature found that under the court's interpretation of the current law, as long as a trespasser left the premises immediately upon being ordered to do so, the trespasser could return that same day with no fear of arrest. The interpretation was burdensome on commercial establishments because owners and operators were unable to meaningfully evict trespassers who may interfere with business and commit property crimes. Conference Committee Report No. 81, House Standing Committee Report No. 711-98.

Act 200, Session Laws 2000, among other things, amended §708-813(1) by qualifying that the pre-arrest warning requirement is excepted between the hours of 10:00 p.m. and 5:00 a.m., when most persons have no legitimate purpose on campus. House Standing Committee Report No. 1283-00.

Act 50, Session Laws 2004, amended §708-814(1) to protect public property from trespassers by applying the offense of criminal trespass in the second degree, a petty misdemeanor, to persons who enter or remain unlawfully on any public property after a reasonable warning or request to leave has been given by the owner or lessee of the property. House Standing Committee Report No. 901-04.

Act 181, Session Laws 2005, amended §708-814 by specifying that a person commits criminal trespass in the second degree if the person enters or remains on agricultural lands without the permission of the owner of the land, the owner's agent, or the person in lawful possession of the land. Agricultural theft is a critical problem for Hawaii's farmers, who are especially vulnerable to theft since farms are usually located on large plots of land in sparsely populated areas, isolated from law enforcement. Although many farms have fences and other simple barriers surrounding their property, the obstacles are easily overcome by thieves and do little to deter trespassing. Conference Committee Report No. 78, Senate Standing Committee Report No. 1164.

Act 212, Session Laws 2005, established the petty misdemeanor offense of criminal trespass onto public parks and recreational grounds (§708-814.5). Act 212 also repealed the amendments made to the offense of criminal trespass in the second degree (§708-814) by Act 50, Session Laws 2004. Act 50 was intended to address the problem of squatters in public parks or campgrounds, but the law was being broadly used in circumstances not related to squatting. Conference Committee Report No. 82.

Act 208, Session Laws 2011, amended §708-814(1) by prohibiting a person from entering or remaining unlawfully on unimproved or unused lands that are fenced, enclosed, or clearly marked by signage. Act 208 also added entering or remaining on agricultural lands that are fallow or have evidence of livestock at the time of entry to the offense of trespass in the second degree. The legislature found that trespassing is a major problem for owners of unimproved or unused land. Trespassers often damage property and crops and increase the liability of the owners of the land. Trespassers also use unimproved and unused lands as illegal dump sites and places to conduct illicit activities. Senate Standing Committee Report No. 830, House Standing Committee Report No. 934.

Case Notes

Where defendant requested court to instruct jury on time-barred lesser included offense of simple trespass under this section, defendant waived statute of limitations under §701-114(1)(e). 87 H. 108, 952 P.2d 865.

Where police had probable cause to arrest defendant without a warrant for fourth degree theft, a petty misdemeanor under §708-833, and simple trespass, a violation under this section, and §803-6 authorized them to cite, rather than arrest, defendant for those offenses if defendant did not have any outstanding arrest warrants, outstanding warrant check on defendant by police not unconstitutional. 91 H. 111 (App.), 979 P.2d 1137.

Decision under prior law.

Member of public can commit trespass on public property where member's presence is not authorized. 53 H. 634, 500 P.2d 560.

Hawaii Legal Reporter Citations

Conflict with administrative rules. 78-2 HLR 78-781.

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§§708-813 To 815 Commentary:

1. Prop. Mich. Rev. Cr. Code, comments at 196.

2. Id.

3. Prop. Mich. Rev. Cr. Code, comments at 197.

4. H.R.S. §771-1.