Archives : 2005 : October

Trespass: How good people can unknowingly be breaking the law

By: Michael D. Grahn, Attorney at law and Helen Kim

In Yeidling v Riley, Plaintiff Yeidling was looking for campus housing and wanted to know the current status of the defendants property. As he entered the defendants property to inquire its current housing status, he stepped on a concrete cylinder on the ground and fell. The plaintiff held that he was classified as an invitee and hence demanded compensation from the landowner while the defendant claimed that the plaintiff was a trespasser and hence the landowner should not be held liable for the plaintiffs criminal actions. 705 So. 2d 426 (Ala. Civ. App. 1997)

What is a Trespasser?

A person is a trespasser where he enters on the property of another without any right, lawful authority, or express or implied invitation, permission, or license, not in the performance of any duty to the owner or person in charge or any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge. As otherwise expressed, a trespasser is a person entering or remaining on land in another’s possession without privilege to do so, created by the possessor’s consent or otherwise. Id., at 429.

What is a Licensee?

A person is a licensee where he enters on the property of another with the landowners consent or as the landowners guest. A social guest is typically considered a licensee.

Who is an Invitee?

A person is an invitee where he enters on the property of another with the landowners consent to bestow some material or commercial benefit upon the landowner. A business guest is typically considered an invitee.

Trespassing Lawsuits

The Court in Yeidling determined that the property owner was not negligent and did not owe the plaintiff any duty of care to warn of potential dangers posed by the concrete cylinders to the plaintiff because the plaintiff was a trespasser. The plaintiff entered the property out of curiosity, to inquire about the rental status of the property, without first contacting the landowner or letting the landowner know of his presence, and hence the plaintiff had no permission or privilege to be on the property. Id. The Court did not agree with the plaintiff that he was an invitee because the owner would have been aware of the plaintiffs presence on the property had there been a business relationship between the two parties. If the defendant had pressed charges against the plaintiff, the plaintiff could have been fined for trespassing. Hence, if an individual wanders onto another persons property without the owners invitation or consent, and without a business or commercial purpose, then the individual may be classified as a trespasser.

In Dance v Commonwealth, a security guard observed Dance remove a tube of Benadryl and a tube of Lanasor cream from their respective packaging, and place the tubes into his pocket. After wandering around the store, Dance exited the store without purchasing any merchandise. However, before exiting the store, Dance emptied his pockets and removed the tube of Benadryl and Lanasor cream into a basket at the front of the store. 2003 Va. App. LEXIS 393. Although Dance did not actually walk out of the store with the Benadryl and Lanasor cream tubes, the Court agreed with the opinion in Bryant v Commonwealth 455 S.E.2d 667, 670 (Va. 1994) and determined that Dance committed trespass by invading the stores constructive possession by removing the items from their packaging and by removing the alarm sensors. Furthermore, any movement of the trespassed property, no matter how slight the movement, was evidence of asportation (the act of removing a property), a necessary element of larceny. Id. at 4. Thus, if an individual removes an item from its original packaging, the individual is trespassing on the stores property and any slight movement by the individual with the property becomes evidence of asportation, potentially leading to more serious crimes like larceny.

Bozeman Mortuary Association v. Fairchild et al. introduces another type of a trespasser: the unintentional trespasser. Unintentional trespassers come into possession of anothers property innocently. In Fairchild, a stolen car was sold to a sheriff, who then sold it to his son-in-law, Fairchild. The original owner of the car sought to reclaim the car and damages that he had incurred while the car was stolen. 68 S.W.2d 756 (Ky. Ct. App. 1934). The Court determined that Fairchild did not know that the car was stolen and hence he was an unintentional trespasser. However, the unintentional trespasser is stripped of his right to the property and acquires no greater right than the thief. The Court stated,

Public welfare and public policy will not allow one to assert any rights to stolen property or to anything he spends or puts on it as against the owner. To hold otherwise would be to encourage the nefarious business of handling stolen automobiles which has grown to such amazing and alarming proportions. Id. at 760.

Unintentional Trespassing

Accordingly, if an individual comes into possession of a stolen item without knowledge of its illegitimacy, the individual becomes an unintentional trespasser. Furthermore, if the original owner of the property seeks to reclaim his property, the unintentional trespasser must return the property to the owner because the original owners rights to the property were erroneously and criminally taken from him by the thief. In such cases, the only recourse the unintentional trespasser has is to seek compensation from the thief or the person whom he purchased the stolen goods from, which more times than not, has unsatisfactory results.

In United States v. Montgomery, the defendant was found to be trespassing on government land by allowing his cattle to graze on the land. 155 F. Supp. 633 (Mont. Dist. Ct. 1957). The defendant responded that he was not financially capable of building a fence to divide the two properties and that he monitored his livestock to the best of his ability. The defendant moved to dismiss the suit because he claimed that his actions were inadvertent and innocent. Id. However, the court stated that, an act does not cease to be a violation of a law and of a decree merely because it may have been done innocently. Id., at 636. Thus an individual who inadvertently trespasses onto another persons property is not exempt from punishment merely because his actions are innocent.

Conclusion

Innocent acts such as a customer inspecting an item outside of its packaging, a buyer purchasing a used item from an unknown source, or a curious spectator inspecting a neighbors flower garden are performed with innocuous motivations. However, such inadvertent actions may be considered trespassing and could lead to graver criminal circumstances.

Criminal Charges and Military Service: The Undesirable Effects of a Criminal Charge on Ones Military Service

By: William Rogers, Attorney at Law and Helen Kim

Airman First Class Roelofs had three years and nine months of active military service. During his military service, Roelofs was charged with possessing three grams of heroin with intent to distribute and prosecuted by civilian authorities, rather than by the military. He was sentenced to confinement for eighteen months and placed on probation for three years. Subsequent to his conviction, the Air Force discharged Roelofs from military service based on the conviction in civilian court. Roelofs unsuccessfully challenged the militarys authority to administratively discharge him based solely on the civilian conviction. (Roelofs v. Secretary of the Air Force, (D.C. Cir. 1980) 628 F.2d 594, 595.)

Military Administrative Discharge for Criminal Charges

An administrative discharge is a military personnel action, which is the rough equivalent of being fired from a civilian job. A service members time in service, rank, and the characterization (type) of discharge the military wants to impose determines whether the service member will simply be given written notification of the militarys intent to discharge (papered out or chaptered out) or given the opportunity to appear before an administrative discharge board. In either case, the servicemember has certain due process rights that are specific to the administrative discharge process.

Every branch of the military has its own service-specific discharge regulations, although the regulations have many similarities. For example, in the Air Force, under Air Force Instruction (AFI) 36-3208, an airman convicted by civilian authorities of certain types of offenses may be involuntarily separated from the military, with an honorable, general under honorable, or under other than honorable conditions discharge. These different characterizations of the service members term of service have significance pertaining to the entitlement of Veteran’s benifits, ability to reenlist, or the recoupment of any special pay or allowances received by the service member, including Montgomery GI Bill educational benefits.

Although a service member can be given an Under Other Than Honorable Conditions discharge at the end the administrative separation process, he cannot be discharged dishonorably, which is one of two types of punitive discharges that can only result from a conviction at court-martial a military trial, with the other being a bad-conduct discharge.

Effects of Receiving a Less than Honorable Discharge

Regardless of whether a discharge results from an administrative separation or a court-martial, anything less than honorable is viewed as derogatory and inevitably stigmatizes the recipient. A less-than-honorable discharge results in loss of numerous benefits in both the federal and state systems and limits opportunities for both public and private employment: almost all employment and job application forms require a statement as to military service and the type of discharge received. (Bland v Connally, (D.C. Cir. 1961) 293 F.2d 852, 858.)

In Davis v. United States of America, Davis had over 2 years of active military service. Due to a chronic arthritic condition, which he allegedly incurred during active military service, Davis was awaiting medical discharge. Under such assertions, Davis was eligible for disability compensation. While awaiting medical discharge, Davis was arrested for automobile theft and ultimately convicted of a felony for which he received a two-year sentence. Although Davis was on official leave status at the time of his arrest, he was involuntarily discharged from the Air Force because of his felony charge. (Davis, (5th Cir. 1971) 431 F.2d 409.) Accordingly, the Veterans Administration denied his disability compensation claim pursuant to Title 38, U.S.C.A. 101(2) because he was, discharged or released under conditions other than dishonorable.

The Court in Roelofs recognized that a less-than-honorable discharge stigmatizes an individual. Furthermore, the Court opined that an undesirable discharge is over and above the stigma of a felony because it indicates that the serviceman did not perform adequately on the job. Thus, an undesirable discharge is warranted only if it results in deficiency in performance of military duties or has a direct impact upon the military. Nonetheless, the military may discharge a serviceman other than honorably without showing that the offense was service-related. That means that the military may look into the individuals actions and records outside of the military service if his conduct impacts the overall effectiveness of the military, whether directly or indirectly.

Military Protection from Civil and Administrative Legal Actions

Service members have some protections from civil and administrative legal actions taken against them while in military service pursuant to the Service members Civil Relief Act (SCRA), Public Law 108-189, codified in the United States Code at 50 U.S.C. App. 501-596. The SCRA completely supersedes the Soldiers and Sailors Civil Relief Act (SSCRA) of 1940. In Mayfair Sales, Inc. v. Sams, Sams attempted to invoke the SSCRA in order to stay, or postpone a proceeding in which he was a defendant in a civil case. (Mayfair Sales, Inc. v. Sams, (1st Cir. 1964) 169 So. 2d 150). At the time, the Act provided that:

At any stage thereof any action or proceeding in any court in which a person in military service is involved, either as plaintiff or defendant be stayed as provided in this Act unless, in the opinion of the court, the ability of plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his military service. (50 U.S.C.A. App. 521.)

Pursuant to the Act, the Court in Mayfair held that Sams was not entitled to a stay of proceeding simply because he was in the military, and must show that his military service materially affected his ability to appear and defend his interests. The SCRA broadens the SSCRAs limited application from only civil matters to civil and administrative matters (e.g., child support or paternity determination).

Some courts have adopted similar provisions for defendants in pending criminal cases but these provisions are very state-specific For example, the 44-97.1 of the Code of Virginia provides:

Any party to or attorney in an action or proceeding in any courtwho has been ordered to participate in annual active duty for training or temporary active duty in the reserve forces of any of the armed services of the United States, National Guard, or naval militia shall be entitled to a continuance, not to exceed three weeks, as a matter of right during the period of such duty, provided the continuance is requested at least four days prior to the first day for which the continuance is sought.

It is critical to ensure that the laws of the state in which the stay is sought have been researched and applied as required by each state.

Conclusion

The military has an overall interest, in terms of morale and efficiency, in insisting on a corps of servicemen who abstain from serious criminal activity. (Roelofs v. Secretary of the Air Force, (D.C. Cir. 1980) 628 F.2d 594, 598.) A criminal charge will not only create obstacles for individuals to become members and serve in the military, but a criminal record may also cause members of the military to be involuntarily and less-than-honorably discharged, which could lead to harsh social, economic, and psychological stigma normally associated with a felony conviction in a civilian court.

Minor In Possession: Myths and Facts

By Donna Ortlieb, Esq. and Natalie Banach

Featuring a white lounge chair atop sparkling sand, the gentle lapping of azure blue waves on the shore, palm trees slightly swaying and of course, a refreshing bottle of Corona in hand; its a television commercial thats recognized nationwide.

This Corona advertisement is just one of the thousands of alcohol-related commercials produced every year – many with the intention of selling goods and making profits. While average Americans may find themselves wishing they were on that beach with a bottle of Corona, its not okay for minors to be indulging. The prevalence of underage drinking is widespread and a variety of misconceptions exist regarding minors, alcohol, and the law.

Underage Drinking Statistics

Every year the statistics on underage drinking are staggering – in 2002, 1.5 million youths ages twelve through seventeen met criteria for admission to alcohol treatment, and about 2 million ages twelve through twenty reported drinking five or more drinks on occasion. What is even more disturbing is that these numbers are accompanied by an ever-increasing ignorance of the laws governing minors and the possession of alcohol. Unfortunately, it can be difficult to understand the legal jargon related to a minor in possession charge (the term most often associated with underage drinking), especially since different states can have different laws.

National Minimum Drinking Age Law

With the enactment of the National Minimum Drinking Age Law in 1984, Congress requires that all states – in order to receive state highway funds – prohibit anyone under the age of twenty-one from purchasing or publicly possessing alcohol. However, the particulars of the subsequent state laws that were enacted turned out to be a little more complex. The following unravels some of the myths regarding minor in possession charges and provides legal information about each:

Myth: Im underage, but as long as I stay under the 0.08% limit Im fine, right?

Fact: Its true that according to the law, intoxication is defined as having a blood alcohol concentration of 0.08% or higher. But what most minors dont realize is that this only applies to individuals who are twenty-one or older. It is illegal for a minor to have any alcohol in their system whatsoever. Just staying within the 0.08% limit is not an excuse to drink. Thus, if a law enforcement officer sees a minor drinking, even if its just a sip of beer, they can cite that individual for being a “minor is possession”.

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Myth: I’m sitting on my porch with friends and we’re having a couple of beers. I’m underage, but as long as I’m on private property, the police can’t do anything, right?

Fact: While it may be true that the porch is private property it’s also true that it is still illegal for a minor to possess alcohol. If an officer sees you drinking on some place like a front lawn or driveway, you could be given a ticket for possessing alcohol if you’re underage. The idea here is that there really is no excuse for anyone under age to possess alcohol. The law is very strict when it comes to minors in possession and there are very few exceptions. In some states, there are particular allowances for minors regarding the purchase or consumption of alcohol (In Georgia minors are allowed to buy alcohol for religious services), but these are rare and are accompanied by a variety of specifications.

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Myth: I’m at a party with a whole bunch of people and everyone is drinking. I drank earlier but now I’m not drinking anything. When the police come they arrest me for public intoxication and underage drinking. They can’t do this right?

Fact: If a law enforcement officer sees an individual intoxicated, they can give them a ticket; if that person is underage, they can also be given a minor in possession ticket.

The tests for public intoxication essentially deal with an individual’s ability to walk in a straight line, stand without falling, remembering where they are at a given moment, and essentially being able to take care of themselves. Law enforcement officials can look at everything from speech patterns to odor, but they do not have to check for a minimum blood alcohol content. If a police officer can prove an individual had enough alcohol in their system that they were subsequently incapable of taking care of themselves, they can issue a public intoxication citation, and if they find out that person is underage, that’s another citation.

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Myth: I’m a minor, but my best friend is twenty-one. My friend asked if I would drive him to the liquor store so that he could pick up some beer. Everything is fine, right?

Fact: This scenario is somewhat complicated. Normally, a minor is not allowed to be in possession of any alcohol, including while driving the streets and highways. However, the law does have an exception: the law does not apply to minors that are transporting alcohol by order of a parent, responsible relative, legal guardian, designated adult, or employer. Driving with a twenty-one year old “best friend” that is in possession of alcohol is a situation could boil down to the discretion of the officer if you are stopped. Because the friend might not be considered one of the exceptions to the law, the occupants of the vehicle will more than likely be required to prove that there was no intent for the minor to consume any of the alcohol found in the vehicle. In a situation like this, it’s a good Idea for the minor’s guardian to know that his or her child is driving with someone that is in possession of alcohol.

Receiving Stolen Property: Buying Property From Strangers or Unknown Sources: What You Dont Know Definitely Can Hurt You

By: Edward Martinovich, Attorney at Law and Natalie Banach

As the trend from front-yard garage sales to internet-based auction sites continues, today’s consumers are finding more and more obscure and unique items online. What they may not know however, is that these items can also sometimes be stolen goods. The recent online trend of purchasing hard-to-find items at bargain prices is not only an opportunity for budding entrepreneurs to market their goods, but also a chance for some to purge their stolen property. The complexities of this new phenomenon can thus raise a variety of legal questions regarding ownership and responsibility. When stolen property is purchased and law enforcement personnel conclude their investigation at your doorstop, not only can the police immediately seize the goods that were paid for, but you may also be charged with a criminal offense. The criminal charges of buying or receiving stolen property or possession of stolen property generally involves taking possession of property with knowledge that it has been obtained through theft, embezzlement, fraud, larceny or extortion by someone else. Therefore, generally speaking, conviction depends on two factors: gaining control of the item and knowing it was stolen at the time it was received. The criminal intent may be inferred if these two factors can be proven. The difficulty with situations involving the purchase of items over the internet or even through the classified section of a local newspaper is that one has to prove they did not know the item was stolen. In fact, the police assume a buyer should know when they are buying stolen property because there are often suspicious circumstances surrounding the sale (i.e., the seller only accepts money orders, the payment address is different from the location address or the price seems too good to be true). In an attempt to stop trafficking and fencing operations, buying stolen property in itself has been defined as a criminal offense. Receiving, concealing, possessing, buying or transferring are usually the acts associated with crimes of fencing (acting as a middleman) or trafficking in stolen goods. What complicates the legal situation even further is the fact that the police cannot always determine whether one buyer is part of the illegal operation or just an innocent buyer. Consequently, the laws in this area tend to be quite strict and usually favor the original owner/victim. It is important to note that paying for the stolen goods or intending to collect the reward for returning them are generally not valid defenses. Therefore, if the police charge someone with buying stolen property and the accused cannot prove that they didn’t know it was stolen at the time of purchase, they can face a myriad of consequences, both in criminal law and perhaps civil law as well.

Consequences of Receiving Stolen Property

Some of these consequences include county jail or commitment to state prison, with a term of probation or parole thereafter, restitution of the value of the item(s) stolen made to the victim, and court fines. Therefore, it is always best to consult an attorney licensed to practice law in the jurisdiction where the incident occurred or where the case is pending to guide you through the complex maze of the criminal justice system.

Criminal Prosecution for Purchasing Stolen Property

In some instances, prior to charges being filed or thereafter, a smart and experienced attorney may be able to convince the prosecutor not to file criminal charges or to file less serious charges than originally anticipated. In other cases, the case will be fought in court and may possibly go to trial if a satisfactory resolution cannot be reached. If the case goes to trial, the prosecution generally will have to prove three elements: (1) that the accused gained control of the item, (2) that the accused knew it was stolen and (3) that the accused intended to deprive the rightful owner of their interest in the property. If there is a conviction after trial, the consequences that follow depend upon the state law controlling the case and whether the conviction was for a misdemeanor or a felony charge. In some states, if the value of the property stolen is more than $100, that can form the basis for a felony. In some states, the threshold amount is a value greater than $400. So you can see based upon the above, it is always in the consumer’s best interest to be extremely cautious when purchasing items from unknown sources or from strangers. Consider the following tips as good steps to take before completing any transactions:

• Avoid transactions where the seller asks only that payment be made by a money order or an instant money transfer.
• Avoid transactions where the payment address is different from the location address.
• Be careful about giving out banking information and details.
• Find out as much as possible about the seller. Read the seller’s trading history and feedback reviews. Also, if you’re still uneasy, contact the seller with remaining questions.
• Avoid sellers who take a long time to reply to questions or who try to persuade you to trade offline.
• If the item is expensive, use a credible escrow service so that you have time to look over the goods and approve them before paying the seller.

If you happen to be the subject of a criminal investigation or a criminal prosecution, it would be in your best interest to consult with a licensed attorney who is experienced in cases of this type. It is not the best idea to try to negotiate with law enforcement or the prosecutor without an attorney beside you to protect your interests.