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Criminal Trespass or Civil Matter?

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  • #16
    Originally posted by SOI View Post
    Absolutely 100% civil matter. That call would have lasted about 60 seconds, just long enough to inform security that if they or the landlord wants the man banned from the property they will have to evict the person who keeps inviting him over to their residence.
    100% agree. Unless the tenet signs a lease giving the landlord the power to say who comes and goes, it's all civil. It's an apartment complex, not a prison.
    sigpic

    " 'Blessed are the Peacemakers', is, I suppose, to be understood in the other world, for in this one they are frequently cursed." - Benjamin Franklin

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    • #17
      My issue with all of this is that in Harris County you have to call an ADA before making an arrest!! WTF is that. Are they that mistrusting that they need ADA's on call 24/7 to answer calls to make sure officers know the penal code.

      That is what a jail workout judge review is for!

      Comment


      • #18
        Originally posted by rx8racr View Post
        My issue with all of this is that in Harris County you have to call an ADA before making an arrest!! WTF is that. Are they that mistrusting that they need ADA's on call 24/7 to answer calls to make sure officers know the penal code.

        That is what a jail workout judge review is for!
        It's been that way for decades and it's really not that bad a deal. If you really want to file a charge, you call them and say "here's what I have and here's what I want to file". If you don't want to file something, but say your supervisor insists that you do, you call the ADA and say "here's what I have, I really don't think I have anything. What do you think?" You can usually get your way one way or the other.

        It also gives you an extra layer of protection if, and when, you're sued. It's kind of hard for them to prove that you maliciously filed bogus charges on someone since it had to be reviewed by an ADA before you filed the charge.
        sigpic

        " 'Blessed are the Peacemakers', is, I suppose, to be understood in the other world, for in this one they are frequently cursed." - Benjamin Franklin

        Comment


        • #19
          Originally posted by Lawfficer View Post
          The apartment complex security confronts the father as he is leaving the complex on foot because he threw an aluminum can on the grass. An argument ensues and the father refuses to leave after being asked to leave by security.
          Originally posted by adeutch View Post
          True, but the complaint in question was not the littering, but the refusing to leave the premises.
          The complaint for trespass started with the littering. This has nothing to do with him coming or going from the apartment or whether or not he was invited.

          Originally posted by rx8racr View Post
          My issue with all of this is that in Harris County you have to call an ADA before making an arrest!! WTF is that. Are they that mistrusting that they need ADA's on call 24/7 to answer calls to make sure officers know the penal code.

          That is what a jail workout judge review is for!
          The ADA has nothing to do with our arrest powers, we arrest and then see if they will accept charges on anything for class b or above.

          Comment


          • #20
            Originally posted by SOI View Post
            Absolutely 100% civil matter. That call would have lasted about 60 seconds, just long enough to inform security that if they or the landlord wants the man banned from the property they will have to evict the person who keeps inviting him over to their residence.

            Security probably won't know this unless they are experience and well versed in law, but the property owners should.

            There is a ton of case law on this. Sorry, I can't quote the cases and I don't have the time to look for them right now. I read them, know what they say and what the law says, and know how to apply it. If I come across it sometime soon I will make a thread with the applicable law.

            This situation is no different than if a husband says someone can't come to the house but the wife says they can. The husband can't CTW someone if another legal resident of age wants them there. If one person wants someone issued a CTW against the wishes of another adult legal resident, the person wanting the CTW must have the other person legally evicted and take sole possession of the property.



            There is a ton of case law on this that says that once you sign a lease and take control of a piece of property, it is your residence. You can possess firearms in your residence legally even if it says you can't in the lease (been there). And you can cram 20 people into the apartment if you want, regardless of what the lease says. You can have animals, smoke, drink, etc regardless of what the lease says and there is no criminal offense. If the landlord or their representative wants you gone, they have to evict you. Once you are served with an eviction and the time allotted to vacate has expired, then it is criminal trespass on everyone because they are no longer in control of the piece of property.


            You won't really get into trouble for issuing a CTW to someone, but once you try to enforce it against the wishes of a legal resident(tenant), then you're hanging yourself out to dry. Find something else to arrest them for if you absolutely believe they need to go to jail. Littering, DOC-language if they cuss in public, PI, jaywalking, something, anything. But arresting for CT when they are invited by a legal resident will get you a visit from a lawyer, an angry department head, some paper in your permanent file, a lawsuit against the department and a few other unpleasant results.
            I'm not arguing about a violation of the lease, of course that's civil, what I'm saying is, property owner or management have the right to allow or not allow individuals on the property. While the leaseholder resides there, the visitor does not and as such, if given a criminal trespass warning by management via the police that they are not welcome on their property, then I would say that it is a valid CTW which can then result in a CT arrest if he is later found on the property. Sure, the resident can invite whoever, sure that becomes their residence, but their residence is on a piece of privately owned property.
            Moooooooooooo, I'm a goat

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            • #21
              Originally posted by SOI View Post
              Absolutely 100% civil matter. That call would have lasted about 60 seconds, just long enough to inform security that if they or the landlord wants the man banned from the property they will have to evict the person who keeps inviting him over to their residence.

              Security probably won't know this unless they are experience and well versed in law, but the property owners should.

              There is a ton of case law on this. Sorry, I can't quote the cases and I don't have the time to look for them right now. I read them, know what they say and what the law says, and know how to apply it. If I come across it sometime soon I will make a thread with the applicable law.

              This situation is no different than if a husband says someone can't come to the house but the wife says they can. The husband can't CTW someone if another legal resident of age wants them there. If one person wants someone issued a CTW against the wishes of another adult legal resident, the person wanting the CTW must have the other person legally evicted and take sole possession of the property.



              There is a ton of case law on this that says that once you sign a lease and take control of a piece of property, it is your residence. You can possess firearms in your residence legally even if it says you can't in the lease (been there). And you can cram 20 people into the apartment if you want, regardless of what the lease says. You can have animals, smoke, drink, etc regardless of what the lease says and there is no criminal offense. If the landlord or their representative wants you gone, they have to evict you. Once you are served with an eviction and the time allotted to vacate has expired, then it is criminal trespass on everyone because they are no longer in control of the piece of property.


              You won't really get into trouble for issuing a CTW to someone, but once you try to enforce it against the wishes of a legal resident(tenant), then you're hanging yourself out to dry. Find something else to arrest them for if you absolutely believe they need to go to jail. Littering, DOC-language if they cuss in public, PI, jaywalking, something, anything. But arresting for CT when they are invited by a legal resident will get you a visit from a lawyer, an angry department head, some paper in your permanent file, a lawsuit against the department and a few other unpleasant results.
              Thank you for saving me lots of typing! Civil, civil, civil. Not to mention commen sense. Why would someone CT a residents father, who was invited over, for a ****ing match with the security guard over trash (lets be honest, that is what this boils down too).

              Comment


              • #22
                According to the Texas County & District Attorneys Association, they don't know the answer either. Here's a good thread in their forum about this exact question. There has to be case law somewhere that gives the answer, but nothing found in Texas so far. I did find one from the Mass. court of appeals that finds for the tenant.

                If all they are doing is walking to and from the apartment unit, then personally, I would not trespass them. I would refer the landlord to the JP so he could evict the tenant for violating their lease. If they are hanging out in common areas for no legitimate reason, then yea, I'd probably CT them. But that's just me.
                sigpic

                " 'Blessed are the Peacemakers', is, I suppose, to be understood in the other world, for in this one they are frequently cursed." - Benjamin Franklin

                Comment


                • #23
                  Originally posted by kcso View Post
                  If all they are doing is walking to and from the apartment unit, then personally, I would not trespass them. I would refer the landlord to the JP so he could evict the tenant for violating their lease. If they are hanging out in common areas for no legitimate reason, then yea, I'd probably CT them. But that's just me.
                  Exactly.

                  There is a reason that both parties have entered into a civil contract. In my opinion, the management gives up some of their right to control who comes and goes into their complex by allowing residency. In order to regain some of that control they enter into a civil agreement by way of contract that outlines the rules. House rules are not enforced by the police, so if they are unhappy with a guest of a resident then they can evict. If someone is hanging out in the common areas of the property without an invitation of a resident then you have CT.

                  Comment


                  • #24
                    Originally posted by kcso View Post
                    According to the Texas County & District Attorneys Association, they don't know the answer either. Here's a good thread in their forum about this exact question. There has to be case law somewhere that gives the answer, but nothing found in Texas so far. I did find one from the Mass. court of appeals that finds for the tenant.

                    If all they are doing is walking to and from the apartment unit, then personally, I would not trespass them. I would refer the landlord to the JP so he could evict the tenant for violating their lease. If they are hanging out in common areas for no legitimate reason, then yea, I'd probably CT them. But that's just me.
                    I totally agree with your post, CT is on a case by case basis, for the example given, I would of just check ok advised and told both parties to chill, if the issues continue contact mgmt and go the civil route.

                    CT encounters I've had have been with dirtbags smoking out in the common areas, or outside the apt, tagging breaking into cars, that stuff. Littering and loud parties are just petty stuff. So it is a case by case basis. That is the way several courtesy officers work it out here.

                    When you call the onduty ADA it all depends on how you present it. They usually accept everything you want them to accept, but if for some reason they don't. You notify your supervisor and then go before a judge and have him sign the warrant.
                    Last edited by ManoloQ; 10-24-2009, 08:14 PM. Reason: Added text

                    Comment


                    • #25
                      its civil. The security guard needs to get over his power trip
                      The Republicans need to shrug off this Christian Coalition noose it has placed around its own neck and recognize the fact that, though they may not realize it, the majority of Americans are actually quite libertarian in their philosophy. They also need to learn to fight once in a while. What a bunch of wimps.
                      -Neal Boortz

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                      • #26
                        Originally posted by RedRaider911 View Post
                        its civil. The security guard needs to get over his power trip
                        Word!

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                        • #27
                          Originally posted by ZoomByU View Post

                          The ADA has nothing to do with our arrest powers, we arrest and then see if they will accept charges on anything for class b or above.

                          Thats a contradiction. You dont arrest till you call them and get permission. So essentially they have everything to do with your arrest powers. Chicken ****. If you have an offense, I say take their a.ss to jail and if they wanna kick it later cool. Either way they take the ride.

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                          • #28
                            Originally posted by ZoomByU View Post
                            The ADA has nothing to do with our arrest powers, we arrest and then see if they will accept charges on anything for class b or above.
                            Same here.

                            Originally posted by rx8racr View Post
                            Thats a contradiction. You dont arrest till you call them and get permission. So essentially they have everything to do with your arrest powers.
                            Huh? Is that how it works in Tarrant County too? I can't believe y'all have to call someone to ask permission to arrest. Down here we don't call a DA or ADA for anything. I'm the supervisor and I wouldn't have a clue how to reach them. No one from the DA's Office sees the arrest for at least a week after they've been to jail. That's the minimum it takes to get the paperwork through our office and over to theirs.

                            If you have an offense, I say take their a.ss to jail and if they wanna kick it later cool. Either way they take the ride.
                            That's what we do. We arrest based on our observations. They can refuse any charge they want, but the suspect goes to jail regardless.

                            Comment


                            • #29
                              Originally posted by ZoomByU View Post
                              The complaint for trespass started with the littering. This has nothing to do with him coming or going from the apartment or whether or not he was invited.
                              I agree, it started with littering, but that is separate from the trespass. The police were called because he refused to leave. Sure, you could cite him for the littering or even arrest him if you're department allows that.
                              I still think, as an invitee of a tenant, he has a right to come and go from the apartment. However, it sounds like he was maybe just standing around outside for awhile arguing with the security and for all purposes loitering. At this point it seems like you could give him the choice to either leave, go back in the apartment, or go to jail. Leasing an apartment may give you the right to have visitors come and go, but it doesn't give your visitors the right to hang out in the apartment all day.

                              I do sympathize with the landlord though. At least in my county, it's hard as hell to evict someone. I don't think a landlord would have much success in evicting the tenant just because her dad littered and argued with security. They might have more success in filing an injunction against the father.
                              "No one can make you feel like a turd without your permission." - Eleanor Roosevelt.

                              Comment


                              • #30
                                Originally posted by rx8racr View Post
                                Thats a contradiction. You dont arrest till you call them and get permission. So essentially they have everything to do with your arrest powers. Chicken ****. If you have an offense, I say take their a.ss to jail and if they wanna kick it later cool. Either way they take the ride.
                                Our system is exactly the same as yours just ours is a little quicker but seriously it is think about it. We basically arrest someone and if the ADA rejects charges we let them go, unless we find some class c stuff. Yours you arrest them, book them, and if the ADA wants to drop the charges they get kicked loose. Essentially both ways accomplish the same exact thing just in a different time frame.

                                Comment

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