Friday, September 14, 2018
A great deal of farm personal property is out in the open. From time to time, machinery and equipment may sit outside, and farm tools and supplies may also be out in the open. Of course, grazing livestock may be outside along with other farm property. Farm real estate may contain farm ponds, stock water tanks and other potential hazards. All of this raises concerns about public access to the premises and possible theft of property and potential liability issues. Similarly, livestock confinement operations have their own unique concerns about who has access to the property.
Does the posting of the property as “No Trespassing” have any legal consequence? It might. That’s the topic of today’s post.
Benefits of Posting
Criminal trespass. One potential benefit of posting property “No Trespassing” is that, in some states, what is otherwise a civil trespass can be converted to a criminal trespass. A criminal trespass gets the state involved in prosecuting the trespasser, and it might be viewed as having a greater disincentive to trespass than would a civil trespass. A civil trespass is prosecuted by the landowner personally against the alleged trespasser.
Search warrant. Another possible benefit of posting property “No Trespassing” is that it may cause a search warrant to be obtained before the property can be search for potential criminal conduct. Under the Fourth Amendment to the Constitution, unreasonable searches and seizures are prohibited absent a search warrant that is judicially-approved and supported by probable cause.
The search warrant issue and the posting of “No Trespassing” signs was the subject of a recent case from Vermont. In State v. Dupuis, 2018 VT 86 (Vt. Sup. Ct. 2018), a fish and game warden entered the defendant’s property via an adjoining property. The warden found a blind with a salt block and apples nearby. A rather precarious path through tough timber was used by the warden to avoid detection. The defendant was charged with baiting and taking big game by illegal means. At trial, the defendant and many others testified that there are “no trespassing” and “keep out” signs all around the property and on the gate to the public road. The warden stated that he did not see any of these signs. The defendant motioned to exclude the evidence because the warden never obtained a search warrant. The defendant claimed that he had a reasonable expectation of privacy throughout his property particularly because of the “No Trespassing” signs.
The trial court reasoned that the warden’s access to the property was abnormal and did not diminish the defendant’s intent to exclude people from coming onto the property. The trial court granted the defendant’s motion to suppress evidence obtained by the warden during the warrantless search. On appeal, the state Supreme Court affirmed. The State claimed that the defendant did not properly exclude the public and, therefore, did not have an expectation of privacy relating to the regulation of hunting. However, the Supreme Court held that when a landowner objectively demonstrates an intent to maintain privacy of open fields, a search warrant is required. Game wardens must obtain a search warrant, the court determined, whenever a warden seeks to enter property and gather evidence. The defendant’s posting of “No Trespassing” signs created an expectation of privacy. Accordingly, the evidenced obtained in the warrantless search was properly suppressed.
The Vermont case points out that posting property as “No Trespassing” can, indeed, have its benefits. Also, it’s important to check state law requirements for the type, size, placement and content of signs. State rules vary and they must be complied with to properly post your property. Just another thing to think about in the world of agricultural law.