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Criminal Law Blog

Loitering vs. Trespass – And A Discussion Of “Probable Cause”

January 9, 2014 | by Matheu Nunn

On January 8, 2014, the Supreme Court of New Jersey decided State v. David Gibson , which stemmed from the seizure of drugs from an individual (Gibson) who was arrested for “defiant trespass” (and later searched incident to the arrest – see my prior blog post on New Jersey’s search and seizure law for a discussion of search incident to arrest).The relevant facts are as follows:

At about 3:20 a.m. on November 24, 2007, a police officer observed, defendant David Gibson, leaning against an upraised porch on private property. In a window looking out onto the building’s porch, a posted sign read, “no loitering.” According to the officer, the property in question was is located in a high-crime area. As the patrol car approached, Gibson moved on, walking a city block before being stopped and questioned by the officer. The officer asked Gibson for identification, where he was coming from, and whether he had permission to be on the private property. Gibson gave his name and explained that he was coming from his child’s mother’s home, which is located two blocks north of the property, and that he was waiting for a ride. The officer later testified that Gibson appeared “very excited” and “somewhat evasive,” and that “he was looking around as though he was attempting to run.” The officer did not, however, elaborate on how Gibson was “evasive.” Based on his observations and interaction with Gibson, the officer concluded that Gibson had the intent to commit a defiant trespass, a petty disorderly persons offense, and arrested him. A subsequent search of Gibson at the police station uncovered thirteen bags containing crack cocaine. Gibson was charged with various drug crimes and subsequently moved to suppress the drug evidence, claiming that the officer did not have probable cause to make the arrest.

After a trial at which the trial court convicted Gibson, Gibson appealed, and the Appellate Division of New Jersey affirmed the conviction (also finding that the arrest was proper).

The Supreme Court reached a different conclusion. Specifically, the Court cited to the statute for defiant trespass, which provides that a person is guilty of that offense “if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given . . . in a manner . . . reasonably likely to come to the attention of intruders . . . .” (Emphasis added). The Court explained that “No loitering” does not convey the same meaning as “no trespassing.” It added that “loitering” means remaining or lingering at a particular location for some indefinite period of time for no apparent purpose. It went on to add that “trespass”–particularly as used in the defiant trespass statute–prohibits the mere entering in a place when one is not licensed or privileged to do so . Stated otherwise, unlike “loitering,” the “enters” requirement of the trespass statute has no temporal element. The Court concluded that the “no loitering” sign in the porch window of the private property communicated that a person should not be idly remaining or loafing on its property.

The Court went on to reverse the conviction – and this is why the “facts” in every case matter and why a good attorney can “work” with good facts.

In Gibson , the Supreme Court held that the notice on the private property did not suggest that the mere leaning on the porch for a very brief period of time would subject Gibson to a defiant trespass prosecution . Rather, Gibson was warned against loitering, which has a distinctly different meaning than trespass. Accordingly, because momentarily leaning against a building, or an upraised porch, on a city block, would not be considered loitering to an objectively reasonable citizen and under no circumstances did Gibson commit a “defiant trespass,” the arrest (and subsequent search) was improper.

That is, the attorney for Gibson “knocked out” the arrest, which, in turn, “knocked out” (or suppressed) the drug evidence.


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