July 1, 2008

L.O. was on supervised probation for reckless aggravated assault. He was rearrested on a criminal trespass warrant, and pleaded guilty and was sentenced to nine days in jail.

After reviewing the new charge, it became clear that L.O. should never have been arrested in the first place. He was sleeping in an abandoned house, and there was no “no trespassing” notice posted, no enclosure, and no actual notice from the property owner that L.O. could not be there. The criminal trespass statute states that it is an absolute defense to criminal trespass if

(1) The property was open to the public when the person entered and remained;

(2) The person’s conduct did not substantially interfere with the owner’s use of the property; and

(3) The person immediately left the premises upon request.

In this case, the house was abandoned, it was open to the public, and the officer did not give L.O. an opportunity to leave the premises.

L.O. was subject to a 3 year sentence if the probation violation was sustained. Because the probation violation warrant was retired, L.O. remains on supervised probation.