They're Trespassers, not Burglars

By Benjamin Lowenthal -
State v. King (HSC December 13, 2016)
Background. Rudolph King walked into the Times Market at Kaimuki and stole a pack of Reese’s Peanut Butter Cups and sweet tea totaling $8.66. He was stopped, detained, and arrested for theft in the fourth degree. A loss prevention officer working for Times handed King a notification to stay off property. The notification warned him to stay off all Times properties in the State and lasted one year. About a month later, he was spotted at the Times near McCully. He stole a ribeye roast valued at $55.55. After he was arrested he acknowledged that he had been issued a notification from the Kaimuki Times. King was charged with burglary in the second degree. He filed a motion to dismiss on the grounds that he could not be charged with the burglary, but rather than trespass statute. The motion was denied. The circuit court granted the motion on the grounds that the prosecution was attempting to convert two petty misdemeanors into a Class C felony. The prosecution appealed and the ICA vacated the dismissal order. King petitioned for certiorari.

Burglary Statutes Require Proof that the Defendant did “Enter or Remain Unlawfully.” The HSC examined burglary statutes. Both burglary requires proof that the defendant “enter[ed] or remain[ed] unlawfully” within a building. HRS § 708-811. The phrase “enter or remain unlawfully” means that “to enter or remain in or upon premises when the person is not licensed, invited, or otherwise privileged to do so. A person . . . enters or remains in or upon premises which are at the time open to the public does so with license and privilege unless the person defies a lawful order not to enter or remain[.]” HRS § 708-800.

Trespass Statutes Require Issuance of a Warning or Request to Leave. Trespass, on the other hand, arises when a person “enters or remains unlawfully in or upon commercial premises after a reasonable warning or request to leave by the owner or lessee of the commercial premises[.]” HRS § 708-814(1)(b).

So Which is it? The crux of the issue is whether the notice from Times arises to a “lawful order not to enter or remain” that can be used to prove an element of burglary. It can’t. According to the HSC, the warning issued by Times can only be used as an element of trespass, not burglary. In other words, it is not a “lawful order” for purposes of HRS § 708-800. The HSC arrived at this decision because the contents of the warning for the trespass statute is clear and very specific as to what the warning must contain. It even has to warn the person that a violation would constitute a violation of trespass (not burglary or any other offense). HRS § 708-814(1)(b). The HSC also found support in the legislative history underlying the trespass statute. The “reasonable warning” provision was added back in 1979 to make it easier for commercial properties to prosecute a petty misdemeanor rather than a violation. And so the HSC agreed with the circuit court that the felony information was not supported by probable cause and affirmed the dismissal.


It Begs the Question: What is a “Lawful Order”? Now we know that folk can’t burglarize a supermarket, store, or mall after the security guard or loss prevention officer gives the written trespass notice. It’s not a “lawful order” as defined under HRS § 708-800. That makes enough sense. After all, in order to satisfy the trespass element, the notice has to say that violating the warning “will subject the person to arrest and prosecution for trespassing pursuant to section 708-814(1)(b)[.]” HRS § 708-814(1)(b)(i). So when does it actually become a lawful order? When can entering a property in defiance of “a lawful order not to enter or remain” arise to burglary? Can a commercial property issue a “lawful order” by adding language to the warning that says not only would you be subject to trespass, but to other offenses—like burglary? Is a “lawful order” a court order? Is it an order from the property holder that has the lawful right to exclude? That, friends, may be the next question.

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