The Illusion of the "Right to Shop"
A common misconception is that the public has a constitutional right to enter and shop at any business. Generally speaking, no one has a fundamental right to shop or be in a private business. While retail stores, restaurants, and offices open their doors to the public, the property itself remains entirely private. The business is merely granting you a conditional invitation to enter.
Crucial Point: A private business DOES NOT NEED A REASON to place someone on trespass. Provided they are not violating federal or state civil rights laws (such as discriminating based on race, religion, or disability), a business owner, manager, or authorized agent can revoke your invitation to be on their property at any time, for any reason—OR FOR NO REASON AT ALL.
Step-by-Step: How a Criminal Trespass Happens
A trespassing charge does not usually happen out of thin air. Here is the typical progression of events that lead to criminal charges:
- The Revocation of Consent: A business owner, manager, or employee asks you to leave the premises.
- The Refusal: You refuse to leave the property, argue the decision, or intentionally delay your exit.
- Police Intervention: The business contacts law enforcement reporting an unwanted person who is refusing to leave.
- The Ultimatum: Police arrive to enforce the property owner’s wishes. They will inform you that the business wants you to go and issue a formal command to leave.
- The Charge: If you still refuse to leave,
Police Limitations and Authority
When the police are called to a trespassing dispute, their role is highly specific. They are there to keep the peace and enforce the law, not to mediate a customer service dispute.
What Police CAN Do:
- Act as the agent of the business to issue a formal, documented trespass warning.
- Arrest or cite you if you purposely remain on the property after being told to leave in their presence.
- Escort you off the property to ensure peace and safety.
What Police CANNOT Do:
- Force the business to serve you, let you stay, or hear your side of the story.
- Act as a judge regarding the “fairness” of the business’s decision to ban you.
- Arrest you for a standard misdemeanor without a warrant if the alleged offense did not happen in their presence (though they can facilitate the business owner swearing out an affidavit for a warrant).
Your Rights if the Police Are Called
If you find yourself in a situation where police are called over a trespassing allegation, managing your actions carefully is your best defense.
- You have the right to leave peacefully: If asked to leave by staff or police, doing so immediately and without argument is the easiest way to avoid criminal charges.
- You have the right to remain silent: You are not required to argue your case, explain your presence, or justify yourself to the police. Simply state you are leaving.
- You have the right to refuse searches: Unless the police have independent probable cause or you are being lawfully arrested, you do not have to consent to a search of your person or your belongings.
Arkansas Case Law on Trespassing
Arkansas courts have consistently upheld a strict interpretation of trespassing statutes, heavily favoring property rights. In the case of Williams v. City of Pine Bluff (1985), the Arkansas Supreme Court explicitly clarified that the criminal trespass statute applies not only when someone unlawfully enters a property, but also when they remain unlawfully after their right to be there has been revoked.
The court noted that the language of the statute is clear and does not mandate an unlawful entry to secure a conviction. This emphasizes that initial lawful entry (like walking into a store during normal business hours) does not protect you if the business later withdraws their consent and you refuse to leave.
CLM Law Firm: Your Aggressive Defense
If you have been wrongly charged with criminal trespass or feel that law enforcement overstepped their boundaries during the encounter, you need competent, aggressive legal protection. CLM Law Firm stands ready to defend your rights and your record.
Criminal trespass charges can carry frustrating fines, probation, and a permanent mark on your criminal record that can affect future employment or housing. CLM Law Firm provides aggressive defense against these charges by scrutinizing police procedures, challenging the validity of the trespass warning, and negotiating fiercely with the state on your behalf. Whether the police acted without probable cause or the business failed to properly communicate the revocation of consent, CLM Law Firm will protect your interests and fight to have wrongful charges reduced or dismissed entirely.
Note: This blog is for educational purposes only and does not constitute legal advice. If you are facing criminal charges, please consult with a licensed attorney regarding the specifics of your case.