The Criminal Night: trespassing in space and time

I recently participated in a webinar with my colleagues Chris McLaughlin and Kirk Boone about the right of tax appraisers to enter private property.  The webinar is available for purchase here.  Professor McLaughlin has blogged about the issue before, and he has written again following our discussion.  This post encapsulates what I learned in preparation for that webinar.  It summarizes the laws governing criminal trespassing in North Carolina, glancing briefly back to their antecedents in the common law and looking ahead to recent statutory changes.

In particular, an amendment due to take effect at the end of this year makes invasion of the curtilage of another second-degree trespassing if the intruder enters between midnight and six a.m.  The idea that certain conduct might be more culpable at night is not unfamiliar to our criminal law.  Indeed, the crime of burglary cannot be committed by day.  If this seems an antiquated throwback to a time before electric illumination, it is well to remember that the malignity of the offense does not so much arise from its being done in the dark, as at the dead of night, “when sleep has disarmed the owner and rendered his castle defenseless.”  4 Bl. Com. *224.  Our law has traditionally afforded the home special protection, whether the intruders be law breakers or law enforcement.  Trespassing joins burglary, the castle doctrine, and the Fourth Amendment in protecting that space.

Common law and early statutory offenses

In its broadest sense, the word trespass can mean any unlawful act committed against the person or property of another.  Trespass, Black’s Law Dictionary (10th ed. 2014).  In the criminal context, before the word “misdemeanor” gained currency, older writers used the term “trespass” to refer to an offense below the grade of felony.  Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 405 (3rd ed. 1982); cf. 4 Bl. Comm. *130 (“treason, felony, or trespass”).  The law of larceny still refers to a trespassory taking, meaning one without authority or consent.  Perkins, Criminal Law, 303-04; State v. Jones, 369 N.C. 631, 634, 800 S.E.2d 54, 57 (2017) (“the taking must be by an act of trespass.”).  Unlawful entry onto real estate is a particular kind of trespassing (“trespass quare clausum fregit”), and the crime generally requires a greater showing of harm than the tort.