Can You be Charged With Trespassing for Jumping a Fence That Was Unlawfully Installed

My question involves criminal law for the state of: CO

Hello guys! Very important case I have going on here, and I just wanted to see what everybody's thought were on the subject. Did the cops have arguable probable cause that night to arrest me? OR, did they commit the worst hate crime ever by denying my exculpatory evidence to my face and instead arresting me without a shred of arguable probable cause (thereby upholding stolen land that the nearby business owner shouldn't have taken in first place - that the cops were instead supposed to uphold MY right to be otherwise be in? The whole event was a "sting" I called it - as in I framed myself with the business owner's "trespassing" charge to see if the cops would be stupid enough to take the bait - and maybe this forum posting is likewise a sting if I turn out to be correct but nobody believes me! OR, maybe I'm totally mistaken? I'd like to think that I'm not, but I wanted to see if we could hash out the details in a forum such as this. PS- The trespassing charge has since been dropped, but the remaining charges are still pending, and I'm otherwise "holding out" on dismissing those remaining charges to see how many more [chronies] I can take out....

Photograph Of The Fenced In Area

Officer Files A False Police Report Of Trespass On Private Property

Exculpatory Email Provided To The Fort Collins Police By David On The Other Side Of The Street

Officer Files A False Arrest Affidavit Of Trespass On Private Property

Fort Collins Municipal Code 17-42 And 24-66 - Definitions Of The Public Right Of Way, Streets, Etc.

Fort Collins Municipal Code Division 3 - Encroachments: Permit Required, Notice To Remove, Etc.

City Of Fort Collins Minor Amendment And Fence (In And Adjacent To The ROW) Permit Applications

Can you provide an address for the location in the photo.

Where is the property line for the property? At the building? The end of the fence? Between the sidewalk and the curb? This is a critical detail.

You're deluded. Regardless of whether the fence was properly placed you jumping over it onto property which you had no legal right to be on is criminal trespassing.
They don't need to consider "exculpatory" evidence on the arrest, just whether whatever indication present is probable cause that you committed the crime. Cases are not tried at the point of arrest.

You may have a chance at trial but your attempt to "game" the system on your imagined technicality isn't going to work. I suggest you get yourself a lawyer who can in a knowledgeable and dispassionate way examine the facts and present adefense.

Address In Question Is 460 S College Ave, Fort Collins, CO (The Old Safeway Building)

The property line runs alongside the building. The Right Of Way runs 100 feet standard all the way down the street. The police have been taking calls at this location for years (it's a homeless hotspot). They know (or should know) that it is standard public property, and I have audio from officers that agree.

In the Fort Collins Municipal Code 17-42 is the definition of their right of way:

Public right-of-way shall mean the entire area between property boundaries which is owned by a government, dedicated to public use, or impressed with an easement for public use, which is primarily used for pedestrian or vehicular travel, and which is publicly maintained, in whole or in part, and includes, but is not limited to the street, gutter, curb, shoulder, sidewalk, sidewalk area, parking or parking strip, median and any public way.

Robinson Piersal Plaza PUD Subdivision Plat, Master Plan, Preliminary And Final Site Plan.pdf

FCMaps City Map Of The Robinson Piersal Plaza PUD

Larimer County Map Of The Robinson Piersal Plaza PUD

@flyingron - I wouldn't be so quick to come to conclusions. Have you contemplated the elements of trespassing? Assuming for arguments sake that the police are *supposed* to be arguing down the paradigm of public property trespassing, how would they establish probable cause for the element of *permission* without first knowing the status of the permit? And sure, let's talk down the paradigm of private property trespassing for arguments sake too, as if they're allowed to be *totally* mistaken on every account - what on earth are the police using to establish all of those elements with, namely unlawfully AND premises AND fence? They can't just be guessing that the nearby business put up the fence without any evidence, nor the premises being private property without any evidence, nor the permission of the owner being revoked without any evidence (which I suppose *could* be implied with the mere existence of the fence, but the jury instructions talk about permission being personally communicated by the owner. The jury instructions of "unlawful" do talk about "at the time open to the public" but does the existence of the fence automatically mean that the area is not open to the public? Sure, I'll give them that, however there were no "no trespassing" signs placed anywhere on the fence. And so what if the business owner didn't mind somebody being behind there? Are the police allowed to remove ANYBODY and EVERYBODY, completely and totally AUTOMATICALLY, without establishing SOMETHING on ANY element to work with, AT ALL? I have a hard time believing that, especially considering that, arguing down public property again, without knowing the status of the permit, one may likely not assume that there IS a permit without first checking with the city. (Perhaps the city should have sent a memo out to the police to let them know that the area is NOT restricted, or perhaps the police should have to wait until viewing the permit to see if it's legitimate). Is a guy jumping the fence in the middle of the night considered an *exigent* circumstance to which one needs to be held in jail overnight until the police can simply call up their zoning department the next day just to obtain the status of the permit, then let the guy go if it's not valid? I highly doubt that. I think they would need to establish actual evidence first of the status of the permit. I think they would have every opportunity to simply take a picture of me for future reference, continue their investigation the next morning, and fill out a warrant if needs be only *after* establishing the status of the permit. Are they allowed to assume the permit is valid without first seeing it? I don't think so. And even so, receiving THE ACTUAL TAKE DOWN NOTICE I would imagine would likely negate that immediately. The email said everything one would need to not be so quick to arrest.. it had both the business owner and the chief construction inspector in it, the fence referecing safeway in the subject, the words right of way, encroachment, no permit, violation of city code, and minor amendment in it. If *I* were a police officer, I would be quite hesitant to arrest somebody with that sort of knowledge in my hands. (PS- when my brother handed over the email to them, they said "Formatting's not right" then "Forged" then "Not notarized" - but remember, we're only dealing with probable cause here, as in PROBABILITIES that one might be trespassing. I believe it was MORE LIKELY NOT THAN LIKELY that I was NOT trespassing, given the information presented. At the very least, I don't believe they had a shred of probable cause for PRIVATE PROPERTY TRESPASSING to which they selected to argue their elements down. If they argued down PUBLIC PROPERTY TRESPASSING, perhaps they might have had more probable cause, but then they'd be stuck at the "permission" element, knowing that a permit would need to exist to restrict permission, to which I don't believe they would be able to safely assume without having ANY information to go off of about it. Just because a fence goes up, nobody can EVER be behind it? EVER? Even if it doesn't have a permit? Sounds harsh, especially if the fence DOESN'T have a permit. Sounds like the police would be enforcing stolen land on behalf of a dirty business owner. I think they have the capacity to do better than that.

So you know, I was the one who TRIGGERED the take down notice in the first place. I was the only one in the city who even recognized that a Fort Collins Municipal Code 23-84 violation had taken place. I went down to the local zoning department office, and informed them of the issue. They gave me a copy of the takedown notice, and eventually a copy of the entire hate crime email chain between them and the property manager.

Sec. 23-84. - Notice to remove encroachment.


(a) Whenever any encroachment, obstruction or structure is made or located contrary to the terms of the permit or without a permit or at such time as the permit is revoked as provided for in this Division, the City Manager shall give notice to the person who made or located such encroachment, obstruction or structure or caused or permitted it to be done or who owns or controls the premises with which such encroachment, obstruction or structure is connected to remove such encroachment, obstruction or other structure. It shall be removed within ten (10) days after notice. (b) It shall be unlawful for any person to continue any encroachment, obstruction or other structure for a period of ten (10) days after receipt of the notice provided for in this Section.

Let's talk about the elements of trespassing now...

Colorado Revised Statutes And Colorado Jury Instructions For Second Degree Criminal Trespassing.pdf

Given that, does one not have a right to enjoy their regular old right of way that somebody else is trying to steal? Shouldn't the police know fence permit law (as trespassing charges can still be given on public lands) and otherwise know that the area is NOT restricted via a permit? Shouldn't the police be upholding my rights to use the area?

OR, should I have to wait until the fence comes down before I can enjoy the use of the area it surrounds? Wouldn't the police need to know that a permit exists first, and is VALID, in order for them to establish that one is to *not* be permitted to be behind it?

PS- The trespassing charge already dropped after I gave the DA a copy of the 143 year old plat, along with the full email chain. (You sure I need a lawyer - sounds like you're salesmanning for them). The only charges that remain are the disorderly conduct (which I believe I had a right to be so upset considering I was having the exculpatory evidence denied - see http://caselaw.findlaw.com/dc-court-...s/1526343.html - I believe the probable cause in my case would rest on the word "reasonable" - to which I believe my noise was, considering the circumstances) and the obstruction and resisting charges, which, hint hint, those are bogus too because according to well established case law, I wasn't even seized yet under the meaning of the fourth amendment until the came in and got me - so how can one even obstruct and resist an arrest that hasn't even happened yet? As far as I understand, a seizure only happens when there is either a) a physical touching or restriction of the subject, or b) a showing of authority to which the subject has to concede to. The "reasonable person" test of if a reasonable person would not feel free to leave is not applicable either, at least in a certain context, because I was still more than free to go about my business (hang out, pick my nose, take a nap) whilst still inside the fence, until they fully came over and removed *all* my liberties via a traditional arrest. There is even case law out there (I can find it again if needs be) that talks about how even a stand off surrounding a house the police haven't seized the subject (even though they weren't totally free to leave the house) because they were still free to hang out inside the house. A bullet entering the person from outside was eventually decided to be the official point of seizure.

So.... when was I *officially* seized under the meaning of the fourth amendment? I'd say when they cut the lock, came inside, and physically laid their hands on me.

The police are not obligated to check real estate records before arresting you. That's for you to deal with in court.

If you have an attorney you should be dealing with him on this matter - not a bunch of strangers in the Internet.

I was in the middle of editing my last post, but it wouldn't let me finish, so let me repost...

@flyingron - I wouldn't be so quick to come to conclusions. Have you contemplated the elements of trespassing? Assuming for arguments sake that the police are *supposed* to be arguing down the paradigm of public property trespassing - how would they establish probable cause for the element of *permission* without first knowing the status of the permit? And sure, let's talk down the paradigm of private property trespassing for arguments sake too, as if they're allowed to be *totally* mistaken on every account - what on earth are the police using to establish all of those elements with, namely unlawfully AND premises AND fence? They can't just be guessing that the nearby business was the one who put up the fence without any evidence, nor the premises being private property without any evidence, nor the permission of the owner being revoked without any evidence (which I suppose *could* be implied with the mere existence of the fence, but the jury instructions talk about permission being personally communicated by the owner). The jury instructions of "unlawful" do talk about "at the time open to the public" but does the existence of the fence *automatically* mean that the area is not open to the public? Sure, I know that's a stretch, I'll give them that, however there were no "no trespassing" signs placed anywhere on the fence. And so what if the business owner didn't mind somebody being behind there? The question ultimately is, are the police allowed to remove ANYBODY and EVERYBODY, completely and totally AUTOMATICALLY, without establishing SOMETHING on ANY element to work with, AT ALL? I have a hard time believing that, especially considering that, arguing down public property again, without knowing the status of the permit, one may likely not assume that there IS a permit without first checking with the city. (Perhaps the city should have sent a memo out to the police to let them know that the area is NOT restricted, so that their jurisdiction is up to date or perhaps the police should have to first wait until viewing the permit to see if it's legitimate before going forward with an arrest). Is a guy jumping the fence in the middle of the night considered an *exigent* circumstance to which one needs to be held in jail overnight until the police can simply call up their zoning department the next day just to obtain the status of the permit, then let the guy go if it's not valid? I highly doubt that. Sounds like guilty until proven innocent. I think they would at minimum need to establish actual evidence first of the status of the permit before making an arrest. I think they would otherwise have every opportunity to simply take a picture of me for future reference, continue their investigation the next morning, and fill out a warrant if needs be only *after* establishing the status of the permit. How are they allowed to assume the permit is valid vs invalid without first seeing it? Are they allowed to say that it's probably more valid than invalid just because the fence is up in the first place? I don't think so. According to 23-84 law, the business owner has 10 days to remove the fence, however it is still considered a misdemeanor for every day that it is up without a permit. Even more so, is receiving THE ACTUAL TAKE DOWN NOTICE along with an explanation of how it was obtained (which I gave them, but which they left out of their police report) by way of me talking with the zoning department that morning - wouldn't such a notice and explanation likely negate probable cause? Sure, they can deny exculpatory evidence, sure they aren't supposed to be conducting a "mini trial" in the streets, however we're dealing with only probabilities here, and the email said everything one would need to not be so quick to arrest.. it had both the business owner and the chief construction inspector in it, the fence referencing safeway in the subject, the words right of way, encroachment, no permit, violation of city code, ten days to remove, and even a mention of minor amendment in it. If *I* were a police officer, I would be quite hesitant to arrest somebody with that sort of knowledge in my hands, vs. the [complete lack of] knowledge the police that night had otherwise within their hands to work with. (PS- when my brother handed over the email to them, they said "Formatting's not right" then "Forged" then "Not notarized" - but remember, we're only dealing with probable cause here, as in PROBABILITIES that one might be trespassing. I believe, that it was MORE LIKELY NOT THAN LIKELY SO that I was trespassing, at least given the information presented. At the very least, I don't believe they had a shred of probable cause for PRIVATE PROPERTY TRESPASSING to which they selected to argue their elements down. If they argued down PUBLIC PROPERTY TRESPASSING, perhaps they might have had more probable cause, but then they'd be stuck at the "permission" element, knowing that a permit would need to exist to restrict permission, to which I don't believe they would be able to safely assume without having ANY information to go off of about it. Just because a fence goes up, are you saying that nobody can EVER be behind it? EVER? Even if it doesn't have a permit? Sounds harsh, especially if the fence DOESN'T have a permit. Sounds like the police would be enforcing stolen land on behalf of a dirty business owner. To which I think they would otherwise have the capacity to do a better job than that.


A good case law example that may apply to this situation I think, is Kuehl v. Burtis (https://casetext.com/case/kuehl-v-burtis)


Here's a few quotes from it:


In determining whether the district court should have granted summary judgment on the basis of qualified immunity, we must consider whether Kuehl has alleged a violation of a clearly-established constitutional right and whether a reasonable officer in Burtis's position would have known that his actions violated that right. Merritt v. Reed, 120 F.3d 124, 125-26 (8th Cir. 1997). 8The Fourth Amendment right of citizens not to be arrested without probable cause is indeed clearly established. See Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 518 (1996). 1Nevertheless, law enforcement officers are entitled to qualified immunity if they arrest a suspect under the mistaken belief that they have probable cause to do so — provided that the mistake is objectively reasonable. Hunter v. Bryant, 502 U.S. 224, 228-29 (1991). Stated otherwise, "The issue for immunity purposes is not probable cause in fact but arguable probable cause." Habiger, 80 F.3d at 295 (citation omitted).
4Probable cause exists when the totality of circumstances demonstrates that a prudent person would believe that the arrestee has committed or was committing a crime. United States v. Washington, 109 F.3d 459, 465 (8th Cir. 1997). 5We must give law enforcement officers "substantial latitude in interpreting and drawing inferences from factual circumstances," id., but such latitude is not without limits. 3First, because the totality of circumstances determines the existence of probable cause, evidence that tends to negate the possibility that a suspect has committed a crime is relevant to whether the officer has probable cause. 18An officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists. See Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir.), cert. denied, 488 U.S. 822 (1988), 488 U.S. 851 (1988). In this sense, the Fourth Amendment requires that we analyze the weight of all the evidence — not merely the sufficiency of the incriminating evidence — in determining whether Burtis had probable cause to arrest Kuehl for simple assault. 5For example, an officer may make an arrest if a credible eyewitness claims to have seen the suspect commit the crime, see United States v. Easter, 552 F.2d 230, 233-34 (8th Cir.), cert. denied, 434 U.S. 844 (1977), but the officer may not arrest the suspect if, in addition, the officer is aware of DNA evidence and a videotaped account of the crime that conclusively establish the suspect's innocence. See, e.g., Baptiste v. J.C. Penney Co., 147 F.3d 1252, 1257 (10th Cir. 1998) (no probable cause to arrest plaintiff for shoplifting despite security guards' informing police that plaintiff stole merchandise, where officers viewed videotape rebutting guards' account and where plaintiff explained her actions to officers and produced receipts for the merchandise in question).
9Second and relatedly, law enforcement officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as "law enforcement would not [be] unduly hampered . . . if the agents . . . wait to obtain more facts before seeking to arrest." See United States v. Woolbright, 831 F.2d 1390, 1394 (8th Cir. 1987); United States v. Everroad, 704 F.2d 403, 407 (8th Cir. 1983); see also 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(d), at 47-48 (3d ed. 1996). 7An officer need not conduct a "mini-trial" before making an arrest, Brodnicki v. City of Omaha, 75 F.3d 1261, 1264 (8th Cir.), cert. denied, ___ U.S. ___, 117 S.Ct. 179 (1996); Morrison v. United States, 491 F.2d 344, 346 (8th Cir. 1974), but probable cause does not exist when a "minimal further investigation" would have exonerated the suspect. 1See Bigford, 834 F.2d at 1219; BeVier v. Hucal, 806 F.2d 123, 128 (7th Cir. 1986) (a police officer "may not close her or his eyes to facts that would help clarify the circumstances of an arrest"); Romero v. Fay, 45 F.3d 1472, 1476-77 and n. 2 (10th Cir. 1995) (police need not interview alleged alibi witnesses but must "reasonably interview witnesses readily available at the scene, investigate basic evidence, or otherwise inquire if a crime has been committed at all before invoking the power of warrantless arrest and detention"); Sevigny v. Dicksey, 846 F.2d 953, 956-58 (4th Cir. 1988) (no probable cause where officer unreasonably failed to interview witnesses at scene of automobile accident who would have corroborated plaintiff's version of story); Baptiste, 147 F.3d at 1259 (officers may weigh the credibility of witnesses in making a probable cause determination, but they may not ignore available and undisputed facts). Cf. Brodnicki, 75 F.3d at 1264 (no duty to investigate suspect's proffered alibi prior to arrest); Criss v. City of Kent, 867 F.2d 259, 263 (6th Cir. 1988) (suspect's plausible explanation of events held not to require officer "to forego arrest pending further investigation if the facts as initially discovered provide probable cause").


So you know, if anybody cares, I was the one who TRIGGERED the take down notice in the first place. I was the only one in the city who even recognized that a Fort Collins Municipal Code 23-84 violation had taken place. I went down to the local zoning department office, and informed them of the issue. They gave me a copy of the takedown notice, and eventually a copy of the entire hate crime email chain between them and the property manager. I just had a hunch that homeless lynching hate crime dirty cops would be stupid enough to deny exculpatory evidence and try and hide behind private property in order to not take a hate crime email 911 call that one of their rich buddies was committing - AND I WAS RIGHT!


Anyways, moving on, I believe officers of the law are supposed to know all of governing law, because, well, they're tasked with upholding it, right? Are they not supposed to know their own municipal code regarding permits and encroachments? Because if there is a fence that goes up anywhere ELSE in the right of way, not next to a business, wouldn't they have to enforce public property trespassing laws using permits to establish such restrictions? Why invoke private property? How on earth would it be more likely that a fence that goes up *next to* a business be enclosing private property? Just because it's next to a business, and not extending into a sidewalk or the street, doesn't mean the land is more private than public. Taking the definition of right of way into account (which they should be knowing, because that's in their municipal code definitions to know) it would NOT be more likely that it's private property vs public, IMO. The whole damn street, all the streets in the downtown area, are a standard 100 foot right of way. Are the police not supposed to be using their patrol maps in their vehicles to, maybe, simply START with? They have patrol maps. It's not like there is a dispute between boundary lines that requires a survey. All you gotta do is look at your patrol map, know your definition of right of way, and viola! The land is public! I think the police tried to cover everything up by going with private property, because they got caught not knowing their jobs and were trying to minimize their investigation in order to try and retain their probable cause. I believe they thought they could *hide* in the vagueness and hunches by doing as little work as possible, hoping to not have to argue their lack of 23-84, 17-42, etc. in a 42 USC court, or at the very least, leave open those arguments to excuses -- like, I could see it now -- "but the fence didn't extend into the sidewalk, so we didn't think it was public property!" (But they're supposed to know the definition of right of way, which once known, the likelihood that the land be more private than public just because it's not a street or a sidewalk is moot).


Anyways, back to encroachments, here's the text on that. Shouldn't police not know this stuff? It's their freaking municipal code for crying out loud!


Sec. 23-84. - Notice to remove encroachment.


(a) Whenever any encroachment, obstruction or structure is made or located contrary to the terms of the permit or without a permit or at such time as the permit is revoked as provided for in this Division, the City Manager shall give notice to the person who made or located such encroachment, obstruction or structure or caused or permitted it to be done or who owns or controls the premises with which such encroachment, obstruction or structure is connected to remove such encroachment, obstruction or other structure. It shall be removed within ten (10) days after notice. (b) It shall be unlawful for any person to continue any encroachment, obstruction or other structure for a period of ten (10) days after receipt of the notice provided for in this Section.


-------------------------------------------------------------------------------------

"The police are not obligated to check real estate records before arresting you. That's for you to deal with in court."

When you say "real estate records" are you talking about private property or public property? I'm confused. Are you talking about knowing plats? Are the police not obligated to know their jurisdiction ON SOME LEVEL? Like, check their patrol map? Or are they allowed to guess willy nilly without any liability coming back to them whatsoever? How is it that they are allowed to think that the area is "more private than public" - just because a fence went up near a business? Also, they've been taking calls at this location for years. The 143 year old plat and 100 foot rights of way haven't changed EVER. Seriously, what do you mean by "real estate" records? Because if you mean permits for fences that go up in the public right of way, sure, for arguments sake, let's say that they may not be obligated to check them, but doesn't my exculpatory email of their being NO PERMIT trump their COMPLETE LACK OF ANY EVIDENCE WHATSOEVER of there being a valid permit? We're just dealing with probabilities here, because that's what probable cause is. Referencing the above case law in my previous post, "law enforcement officers have a duty to conduct a reasonably thorough investigation prior to arresting a suspect, at least in the absence of exigent circumstances and so long as "law enforcement would not [be] unduly hampered . . . if the agents . . . wait to obtain more facts before seeking to arrest."

So are you saying that there existed exigent circumstances to arrest me in the middle of the night, with an absolutely bare minimum set of facts (like, practically none at all) vs. they should have waited, knowing that they could obtain perfect knowledge and pure fact of the status of the permit, right around the corner, as soon as their zoning department opened the next morning? How were they unduly hampered by seeing me in the middle of the night? Did they *have* to get me right then and there? What risk did I pose, that I was gonna "get away" with trespassing if they didn't arrest me right away? They knew who I was from previous accounts, they can take pictures of me, get a warrant signed for me. Sounds like a case of guilty until proven innocent, in the fewest amount of words to describe such a philosophy..

"If you have an attorney you should be dealing with him on this matter - not a bunch of strangers in the Internet."

Hello, the trespassing charge itself already got dropped. Easy as pie. The other charges are just as easy to drop too. I'm just doing my civic duty now to figure out my constitutional rights against an unlawful seizure as I prepare for a possible 42 USC. Sounds like you're also salesmanning for attorneys. Do you *REALLY* think that I need an attorney on this matter - for defense purposes? OR are you talking about 42 USC court?

Quote:

---

1) A person commits the crime of second degree criminal trespass if such person:

---

Quote:

---

(a) Unlawfully enters or remains in or upon the premises of another which are enclosed in a manner designed to exclude intruders or are fenced

---

sounds like guilty to me

Man, I hate reading from the colorado revised statutes.

"which are enclosed in a manner designed to exclude intruders or are fenced" only describes the level of trespassing (second degree). Third degree is lesser, and doesn't talk about fences, first degree is harsher, and talks about dwellings. If you look at the actual jury instructions for second degree criminal trespassing...

4-5:04 SECOND DEGREE CRIMINAL TRESPASS (ENCLOSED
PREMISES)

The elements of second degree criminal trespass (enclosed premises)
are:
1. That the defendant
2. in the State of Colorado, at or about the date and place charged,
3. knowingly, and
4. unlawfully,
5. entered or remained,
6. in or upon the premises of another,
7. which were enclosed in a manner designed to exclude intruders
or were fenced.

[8.	and that the defendant’s conduct was not legally authorized by the affirmative defense[s] in Instruction[s] ___.]

After considering all the evidence, if you decide the prosecution has
proven each of the elements beyond a reasonable doubt, you should find
the defendant guilty of second degree criminal trespass (enclosed
premises).

After considering all the evidence, if you decide the prosecution has
failed to prove any one or more of the elements beyond a reasonable doubt,
you should find the defendant not guilty of second degree criminal
trespass (enclosed premises).

COMMENT

1. See § 18-4-503(1)(a), C.R.S. 2016.
1636

2. See Instruction F:126 (defining “enters unlawfully” and “remains
unlawfully”); Instruction F:195 (defining “knowingly”); Instruction F:284
(defining “premises”).

3. See Bollier v. People, 635 P.2d 543, 546 (Colo. 1981) (construing the
provision of section 18-4-503 relating to enclosed or fenced premises as
having an implied mental state of “knowingly”)

...the existence of a fence only satisfies element number 7, and according to the direct above text, implies element number 3 (knowingly).

The existence of a fence does nothing to satisfy element number 4 (unlawfully). What evidence does a police officer need to establish probable cause for "unlawfully"? Let's look that up:

F:126 ENTERS UNLAWFULLY OR REMAINS UNLAWFULLY
A person “enters unlawfully” or “remains unlawfully” in or upon
premises when the person is not licensed, invited, or otherwise privileged
to do so. A person who, regardless of his [her] intent, enters or remains in
or upon premises that 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, personally communicated to him [her] by the owner of the
premises or some other authorized person. A license or privilege to enter
or remain in a building that is only partly open to the public is not a license
or privilege to enter or remain in that part of the building that is not open
to the public.

So... how does one determine that someone is NOT "licensed, invited, or otherwise privileged to do so"? Wouldn't they need some sort of tangible evidence (more than a mere hunch) that the privilege is revoked? Like say, talking to a business owner who said that they told that person to leave and they didn't, or with public property, actual knowledge (not a hunch) that permit exists that is also valid, that restricts the area from use?

Even if one could posit that it is "more likely than not" that a permit exists and is valid, is that not reduced down to a mere hunch without ANY information whatsoever as to it's validity?

Is it not 100% equally *possible* at that point, without ANY information whatsoever to work with, that a permit could exist and be valid, as it could not? Remember, a fence could just as easily be up illegitimately (during the 10 day grace period given to have it be taken down because it doesn't have a permit) as it could be up legitimately, right?

I don't think the police can just go around removing people from areas that they claim are "restricted" - at least areas that are theirs like public lands with fences on them, without *actually* knowing if it's restricted first. Because like I said before, the other way around, would they not be enforcing stolen land? Shouldn't they be upholding the rightful use of the land by the public AGAINST the person who unlawfully restricted the area in the first place? Shouldn't they be the ones to be issuing 23-84 violations (a generic municipal code misdemeaner, just like a park curfew ticket) against anybody who places fences around their land without a permit? Or at the very least know about the possible existence of them? Shouldn't the police not be letting people steal their land?

Just like in Kuehl v. Burtis - shouldn't the police not be framing the victim with the evidence produced by the perpetrator? The police are not supposed to be arresting the wrong party, right?!

Too many blocks of text full of irrelevant details.

not doing homework this morning as reading the OP's text blocks just make me tired, more tired than I already am.

That said...probable cause is different than whether or not you are guilty. Probable cause is about evidence. You hopped a fence (among other things) onto fenced, presumed private property. That's a crime. The police, as noted above, aren't going to research property records. They're going to arrest you, the DA charges and tries you based on the facts gathered by the police. You were arrested on probable cause and the DA chose not to pursue it, but that doesn't mean you were guilty or not, it just means that the DA felt they didn't have the necessary evidence or felt that pursuing drunk college students at CSU was a better use of time, or the myriad other crimes besides some idiot jumping a fence.

Finally just above you say the following:

Quote:

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ust like in Kuehl v. Burtis - shouldn't the police not be framing the victim with the evidence produced by the perpetrator? The police are not supposed to be arresting the wrong party, right?!

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The police arrested you because you hopped a fence, you weren't framed, you were the perpetrator, therefore not the wrong person. You were not exonerated, you were deemed likely, not worth the time to prosecute.

If you're such a legal expert, why did you come here? Your case is not adjudicated in the forum and you seem unwilling to listen to anything. Good luck in court.

Again, the standards of probable cause for the arrest are much less than for winning at trial. You're not going to win this by attacking the probable cause.
I'm dubious about your arguments at trial, either, but you didn't ask that question. I was only answering the probable cause strategy.