Criminal Trespass in California – Process Servers
This post is excerpted from The Registered Process Server’s Guide to Service of Process in California, and expanded from that source, and discusses issues that arise relating to criminal trespass and a process server. There is a limited exemption from trespass in California for a registered process. However, there are no bright lines regarding this issue in California or any other state. Trespass laws are state-specific, and vary considerably. (See US Trespass Laws – Process Servers page.) One state (WA) codifies an affirmative defense for process servers, not an exemption. Do not rely on this as a legal opinion, especially if you are researching this legal issue from another state.
When a server walks onto the property of the defendant to serve, there is a potential for being charged as a trespasser. That can be a civil wrong and/or a criminal act.
This article discusses in general terms criminal but not civil trespass. Although related, that involves a different analysis.
To be criminally culpable in any non-strict liability crime there must be concurrence of both the actus reus (the intentional act) and (mens rea), a guilty mind or intent. Certainly the act of entering onto the property to serve someone is a volitional act, but the purpose of the entry is for making a lawful service and to give notice. If there is no intent to cause criminal harm, or to permanently occupy the property, there is no offense.
Furthermore, a defense to trespass is consent or permission. That may be expressed or implied. If there is a pathway leading to the front door, and a doorbell next to the door, there is an implied consent or permission for the public to enter onto the property and to walk to the porch to ring the doorbell. There may be a discernible area of a business which is open to the public. Entry onto property cannot exceed that consent, expressed or implied, and consent may be revoked.
In civil law, a person walking onto the property is a licensee if they are there with permission of the occupier of the property. Absent a no trespassing sign, that permission is afforded persons there asking for directions, solicitors selling magazine subscriptions, Girl Scouts selling cookies, or those wishing to express religious or political beliefs. (See The Volokh Conspiracy post, SEIU Picketing on Someone’s Front Porch?, citing Keesecker v. G.M. McKelvey Co., 47 N.E.2d 211 (Ohio 1943))
Process Server’s Authority to Enter Property
Generally, a process server has no greater authority to enter the property than any member of the general public, however, the purpose of the visit does. Service of process gives a server a privilege, distinguished from a right, to enter the property for the purpose of service. The law requires that service is to be made by delivery, and a process server gives notice to the defendant by that delivery. Once delivered, the service allows the court to exercise its jurisdiction over the party. It meets a due process requirement afforded the defendant under the U.S. Constitution.
A process server may have a defense from a civil trespass claim under a “public officer’s immunity for legal process enforcement” when serving a summons. Although a California private process server is neither a public official nor an officer of the court, the process server is performing a “public function” for a “public purpose” when serving a lawsuit, subpoena, or other process. (See U.S. v. Wiseman, 445 F.2d 792 (1971))
Exemption from Trespass
In addition, a registered process server has a limited exemption from trespass for driving a vehicle onto the property, alighting therefrom, and for ingress and egress to and from the front door (See Cal. Penal Code 602(n)). Also, a registered process has an exemption from trespass for entering property with a “No Trespassing” sign (See Cal. Penal Code 602.8(c)(3)).
These exemptions came about because of a CAPPS proactive legislative effort after one of its members’ server was arrested and convicted for vehicular trespass when serving at a gated business when her car broke the threshold of the imaginary plane of an open gate.
Rights of a Person Being Served
There are conflicting rights afforded to persons being served, and the person who has a right to occupy the property. Entry onto someone’s property to perform a service may implicate the 4th amendment of the U.S. Constitution, and infringe upon a person’s right to privacy.
That privilege to enter onto someone’s property for service is not absolute. It does not allow the process server to enter a dwelling or attached garage, or into the non-public area of a private office or business. Although the statute does not restrict a process server from entering a backyard, entry could violate the a legitimate expectation of privacy of the person who has a right to occupy the property.
Even if an authorized person answering the door invites the server into a home or otherwise private area, the server should stay outside the threshold of the door. Technically, even reaching in, over the threshold, could constitute a civil and criminal trespass.
The best policy is not to enter at all, and to announce service and leave the documents outside the door.
The lawful occupier of the property has a right to ask someone to leave. If a process server is asked to leave, and does not do so, they could be subject to a charge of trespass. Common law requires compliance with such a request.
The California appellate court traced the legislative history of California trespass law in the case People v. Wilkinson, 248 Cal. App. 2d Supp. 906 (1967), and specifically defined the word “occupy to mean a nontransient, continuous type of possession.” In that case, four people pitched a tent for an overnight stay on a landowner’s property in the beach in Big Sur. When they were requested and ordered to leave, they packed up to leave, and then were arrested. The court reasoned that because the occupation of the property was transitory, and not permanent in nature, there was no trespass.
When a process server enters the land of another for service, then leaves after service or the attempt, that is a transitory, non-permanent occupation of the property, and would generally be considered lawful.
Exceptions to the Exceptions
There are exceptions. Military facilities, airports, schools, and those properties with security policies do not allow process servers onto the property. A business has a right to limit access to their non-public portion of their property, and they may exercise those justifiably conflicting rights. The exemption from trespass cannot be used as a sword requiring access, only a shield insulating a server from criminal prosecution.
Under California law, a charge of trespass constitutes an infraction and a fine for the first and second offense, and a misdemeanor for the third and any subsequent offense.