Answer: yes, you absolutely can be charged with trespassing after the fact.
In the article that follows, we’ll explain.
Can You Be Charged With Trespassing After The Fact? (Explained)
The contents of this web page are for informational purposes only, and nothing you read is intended to be legal advice. Please review our disclaimer about law/legal-related information on this website before taking action based upon anything you read or see.
There are several ways that law enforcement officers gather evidence of trespassing, including:
- taking statements from witnesses observed the incident as it happened at the location with their eyes
- taking statements from witnesses observed the incident live but from a remote location (security camera)
- taking statements from witnesses observed the incident after the fact by reviewing footage
- taking statements from witnesses who tattle on the offender (“I saw Jon go into Dave’s house.”)
- taking statements from the offender himself during an interview, a set up phone call, etc
- collecting evidence from witnesses or the defendant that could only have been obtained during the commission of the crime.
While television shoes often portray dramatic confrontations of trespassers, most trespassers are charged after the fact.
Sadly, there just aren’t enough law enforcement officers on duty to respond to every single 9-1-1 call, and sometimes the trespasses aren’t even discovered until a later date.
Without imminent threat to life, it is rare for law enforcement to be able to scramble resources to the property to catch the offender red-handed.
Once law enforcement has finished their investigation, they’ll pack up everything and forward it to the prosecutor.
Making Charging Decisions
The prosecutor has to weigh justice for the public against the cost of pursuing a trespass case.
While trespassing is illegal, the prosecutor may have a limited amount of time and money to utilize to work on cases.
When faced with a simple trespass (like crossing over property lines) vs an assault with a vulnerable bleeding victim, the trespass case may not receive the attention that the victims of the trespass deserve.
The prosecutor reviews the evidence, weighs the factors that members of the public don’t usually think about, and then files or no-files.
If the prosecutor has an easy (or easy-ish) case to prove, he is more likely to file.
(An easier case to prove is one where the evidence is already lined up and clearly identifies the offender, the time and date of the offense, the location of the offense, and what happened, and the evidence is all admissible in court at trial.)
Statute of Limitations on Trespassing
While prosecution for trespassing doesn’t always happen immediately, the police and government have limits for how long they can wait to pursue the case.
On the criminal side, there will be an applicable statute of limitations that limits the time frame to file.
Trespassing could be a civil infraction, a misdemeanor, or a felony.
In some states, the statute of limitations is 12 months, while other states it is 24 months.
In some states, the statute might be even longer.
Depending on the seriousness of the crime in the state, the prosecutor may have more or less time to file charges.
In the civil side, even if the criminal statute of limitations has passed, the property owner may still be able to pursue the offender for the trespass.
The intentional tort of ‘trespass’ may have a statute of limitations of 2 to 6 years, depending upon the state and when the act was discovered by the victim.
Should You Confer With a Lawyer?
This is a great question, and it really depends on the case.
In some states, a simple trespassing might be resolved without much fanfare or punishment.
Many courts (especially municipal courts) have alternative disposition programs (like probation) aimed at low level misdemeanors.
Conferring with a criminal defense attorney who practices in the jurisdiction where the incident occurred early on can help someone:
- understand the process of the prosecution
- analyze the facts and the likelihood of prosecution
- avoid making the case worse
- consider potential outcomes (trial, alternative disposition, probation, jail)
- understand what self-representation might look like
Want to learn more about your criminal justice system?
Browse our free legal library guides for more information.