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.

Maybe I posted in the wrong forum... can somebody move this thread to the civil rights section?

I wanted to talk about the elements of public vs private property trespassing, and what is required to have probable cause. I didn't think I had to wait to hash out details in the actual 42 USC court. Please pardon my curiosity.

Quote:

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Quoting zoinbergs

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Maybe I posted in the wrong forum... can somebody move this thread to the civil rights section?

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You have no "civil rights" defense that would allow you to trespass on private property.

Quote:

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Quoting zoinbergs

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I wanted to talk about the elements of public vs private property trespassing

---

An easement on private property does not transform the property into "public property". You have no right to trespass on the land of another merely because a utility company holds an easement over the portion of the land upon which you trespass.

The police saw you hop a fence on private property, and saw you fail to respond to their instructions to come out of that fenced area. Why do you imagine that they would need anything more before arresting you?

Quote:

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Quoting joef

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

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Judging from the police report, it was here. Nobody could reasonably confuse that with a public space. The officer took a photograph of the defendant inside the fenced area, so that photo would clearly establish where he was.

If the gate is locked and you don’t have a key, you aren’t in the invited list.

Oh man, don't tell me my sting is still working and going strong! Are you guys for real? Do you regularly eat the crap your police serve you? You don't think it's possible that they could be mistaken / lie / fudge the results of their arrest affidavits and police reports in order to not look bad / catch a "nigger" that they don't actually have the real evidence to arrest, but still want to "get off the streets" regardless? Your blind faith in the system concerns me.

Quote:

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Quoting Mr. Knowitall

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You have no "civil rights" defense that would allow you to trespass on private property.

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Wow, quite the.. don't make me say it.. assumption? Tell me, how did YOU come to the determination that I trespassed onto PRIVATE PROPERTY? Please enlighten me. What EVIDENCE do you have that that area is P-R-I-V-A-T-E P-R-O-P-E-R-T-Y?

Quote:

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Quoting Mr. Knowitall

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An easement on private property does not transform the property into "public property". You have no right to trespass on the land of another merely because a utility company holds an easement over the portion of the land upon which you trespass.

---

What exactly do you mean by "easement"? I've seen people use this word before. Can you point me to, say, a definition in the Fort Collins Municipal Code (or any other book for that matter) to substantiate precisely what you are talking about? We gotta start with the correct words, and the correct definitions of words, if we're going to get anywhere. Again, how do you know that's private property? How do you know it's not public property? You used a map? A plat? Anything? Where'd you get this information regarding the utility company? HAVE YOU READ NONE OF MY PREVIOUS POSTS? Sounds like you jumped on the same lynch mob gravy train as the police / internal affairs / the judge who rubber stamped the affidavit / the DA / practically everybody else who doesn't seem to care about getting their facts / details / backstory straight before hanging me in the tree.

Quote:

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Quoting Mr. Knowitall

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The police saw you hop a fence on private property, and saw you fail to respond to their instructions to come out of that fenced area. Why do you imagine that they would need anything more before arresting you?

---

Oh, I don't know, I imagine they would need some sort of *actual evidence* that the area is *actually private property,* and that the nearby business is *actually* the one who put up the fence, and that they *actually* did not want anybody in there, and had indicated that to the police.

Quote:

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Quoting Mr. Knowitall

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Nobody could reasonably confuse that with a public space. The officer took a photograph of the defendant inside the fenced area, so that photo would clearly establish where he was.

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Hah! Really? That's not public land on the east side of safeway? You sure about that? What did you use to determine that? That the area is not a paved street or a concrete sidewalk? Tell me, are police NOT required to know the most *basic* definitions in their municipal code, namely in this case, the definition of RIGHT OF WAY?

Fort Collins Municipal Code Sec. 17-42. - Posting notices and handbills on premises.

The following words, terms and phrases, when used in this Section, shall have the
meanings ascribed to them in this Subsection (a):

Commercial or business sign shall mean any sign, flier, notice or poster intended to
advertise, direct or attract the attention of the public to a business, or intended to induce
the purchase of goods, services, property or entertainment, or to promote business or
employment opportunities.

Noncommercial sign shall mean any sign, flier, notice or poster which is not intended to
advertise, direct or attract the attention of the public to a business, or intended to induce
the purchase of goods, services, property or entertainment, or to promote business or
employment opportunities, including, but not limited to, signs conveying a political,
ideological or personal message.

Public property shall mean any portion of real property, pole, post, tree, barricade, bridge,
fence, railing, utility box, curb, sidewalk, wall, bench, building or structure of any kind
which is either publicly owned or located in the public 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.

Hmmm, because it sounds to me, that if one knew what the definition of *basic* right of way was, they wouldn't be able to safely say (with any sort of confidence) something along the lines of (I could only imagine going through their head later in a 42 USC court) that "because it's not a street or a sidewalk, I thought it was private property!" Kinda looks like what Officer Brede was trying to get away with (ie, not knowing the definition of his city's right of way, but still trying to get away with writing up his police report regardless) when he said:

"When I arrived at 430 Remington Street, I saw that William was standing behind a fenced area on the east side of Safeway I saw that there was a fence erected around the benches on the east side of Safeway, right next to where the sidewalk is. The chain-link fence was not blocking the sidewalk."

HOGWASH. Thanks to you, it looks like my sting has officially reached THE INTERNET! But let's be serious and continue this conversation. The police had what I believe to be mere hunches and nothing more, that:

1) the area was private property, and

2) the private property owner did not want anybody to be in it

3) the private property owner was the one who had erected the fence on this private property of theirs to establish that they did not want anybody in it

Versus what I provided to them via the ACTUAL takedown notice, which I believe to be *pretty substantial evidence* of ACTUAL facts, now within their full knowledge and control to weigh against or for, that:

1) the area in question was public property

2) the area in question, according to the subject, was the "Safeway Downtown Fort Collins"

3) the nearby business owner had an upcoming minor amendment (that they themselves did not deny they needed to apply for, but had not yet) in order to modify the area with in the first place (fences and permits and violations of city code if no permit exists aside entirely)

4) the nearby business owner erected the fence

5) the fence they erected did not have a permit

6) the nearby business owner fully admitted that they erected the fence without a permit as a "temporary safety precaution" to which they would be removing once they submitted the minor amendment

7) the city knew this fence did not have a permit

8) the chief construction inspector was the one who sent the takedown notice, and he left a signature and an accurate phone number in the notice (that one could easily look up online) to substantiate who he was

9) the city was informing them that the fence did not have a permit, and that they knew it was them who had erected said fence

10) the city had the apparent authority to send the takedown notice themselves

11) the date the takedown notice was sent was very recently (the prior morning) thus eluding to the grace period of the city giving them 10 days to remove the fence, thus eluding to the idea that the fence could still be up within that time frame, but not be legally up, thus eluding to the idea that the area did not need its permission restricted in the mean time (because according to the code it's a misdemeanor regardless for every day the fence is up without a permit)

10) the city was requiring them to remove the fence because it did not have a permit

11) the fence was placed, according to the city, "within public right of way"

12) the fence was considered, according to the city, an "encroachment"

13) the fence required a maximum of 10 days to remove, but that it needed to be removed "sooner rather than later" (gee I wonder why)

14) there existed a "city code" to which the fence without its permit violated, to which the police could at that point probably look up said code with basic search terms to now see what it said (not rocket science here)

So that's A LOT of facts that are FOR it being public property, and that NO permit existed to restrict its permission, compared to the police having NO facts substantiating it being private property. Also, why would somebody need a permit to erect a fence on their own private property in the first place? Why is there such a takedown notice talking about permits? What is this nonsense!

Am I missing something here guys? Wouldn't all of these alleged facts sway the probable cause in the direction of the area being considered, at the very least, more likely to be public property than private property, let alone to which the issue of permits would now need to be invoked?

The way I'd put it, is that the police, at the very least, are not allowed to have probable cause for private property, and then all of a sudden change teams (more like ballparks) halfway through their case, so as to take me to trial on public property entirely after the fact. Dealing with probabilities in the streets, it sounds like, at least to me, that the probability of the property being private was much lower, especially after reading the takedown notice, than it would be public property. Also, do the police not have patrol vehicle maps RIGHT BEHIND THEM to refer to? I've asked, and they say they have patrol vehicle maps for things like park and natural area boundaries, etc.

I would imagine that the police would have to either have probable cause for private property trespassing, which requires a finding of probable cause for each element on a private property level, or probable cause for public property, which requires a finding of probable cause for each element on a public property level. As in, I believe the police were two steps removed from where they needed to be (step one being they needed to establish public property permission via a permit for the fence, and step two being that they didn't even get that far because they went down the private property paradigm in the first place instead). That just sounds like *too many assumptions* they thought they could make and get away with, without having a shred of evidence on any of them, any elements established with any facts whatsoever, on either the public OR private side. Sounds like a bunch of hunches to me.

Are we supposed to just indulge the business owner in his stealing of land in the mean time, for 10 plus days, and not let anybody hang out inside said area for that entire time, even though we know (for arguments sake, if the cops knew their jobs) that the area doesn't have a permit? Shouldn't the police be wanting to uphold the public's right to use the area in the mean time, since the requirement to restrict permission to use the area requires, um, a valid permit?

It's like a crime / call, a form of trespassing by putting up the fence without a permit, was already taking place at the time for that particular area, that the cops should have already been taking first in my opinion, and that there was not, or should not have been, room to take the opposite trespassing call (me) for the same area. Kinda like what I previously mentioned, Kuehl v. Burtis (https://casetext.com/case/kuehl-v-burtis) where the cops lacked arguable probable cause because they "took the wrong call" and inadvertently / maliciously framed the victim with the assault, when it was the perpetrator who had actually committed the assault (but was considered the victim at the time).

Sorry for being so wordy, but I just don't think the cops get to have a free ride just because "they saw a guy behind a fence" and well, that's that! I know the bar for probable cause is low, but I know it's not at the freaking floor!

To all of that;

enjoy jail, probation, and or the fines the court imposes upon a finding of guilt.

Google maps street view shows that location without the fence but clearly visible above the area is a "No Loitering Police Enforced" sign. This may well be public land with an attraction that was too attractive to criminal/disruptive elements and the location was posted to allow police to disperse any groups congregating there. I bet that this proved insufficient and they decided to fence it off. It likely is not private property but public property that the city leaders decided was being abused and thus restricted access to it.

So did you have a key to the gate or not? If not you weren’t invited to play in the playground and you were trespassing. Access to public property can be restricted.

Quote:

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Quoting jk

---

To all of that;

enjoy jail, probation, and or the fines the court imposes upon a finding of guilt.

---

Wow, I'm actually running out of words to describe the level of apparent intellectual dishonesty I am actually witnessing here! Do you guys seriously not READ BEFORE YOU POST? Do you *want* me to be hung in a tree? I ALREADY INFORMED YOU, IN MY VERY FIRST POST, THAT THE TRESPASSING CHARGE GOT DROPPED. And later, I informed you that the other charges will get dropped as well, considering I was charged with them before even being seized under the meaning of the fourth amendment.

I don't want to say this, but I jumped the fence as a "sting" to see how many people would try to lynch me over it. I regret to admit, but according to what has just transpired in this forum, you (jk) are not doing a very good job at differentiating yourself from the very "nigger lyncher" group I am trying to expose. Today is sad day indeed. You evidently cannot handle the idea that corrupt cops exist in your world, and would rather jump on their bandwagon than turn them in for their hanus acts.

Quote:

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Quoting joef

---

Google maps street view shows that location without the fence but clearly visible above the area is a "No Loitering Police Enforced" sign. This may well be public land with an attraction that was too attractive to criminal/disruptive elements and the location was posted to allow police to disperse any groups congregating there. I bet that this proved insufficient and they decided to fence it off. It likely is not private property but public property that the city leaders decided was being abused and thus restricted access to it.

---

Bingo. You are the first person I have come across on this subject that evidently has the mental capacity to handle such a thought. You are completely correct on all levels. In fact, here's the entire email chain between the city council and the police on the very subject. I wish you weren't right, but at least the truth is coming out.

http://www.mediafire.com/file/ipto21...tion_Fence.pdf

What's saddens me, however, is that I have been fighting for the removal of that sign for years now, unsuccessfully. Nobody wants to hold ANYBODY to ANY fire that an ACTUAL homeless hate crime has been committed in their town by a rich loser that doesn't deserve the respect he gets from people.

Since then, my brother and I have only caught even *more* homeless hate crimes, all across the state now, to which I won't get into here, so as to stay on topic.

Quote:

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Quoting jk

---

So did you have a key to the gate or not? If not you weren’t invited to play in the playground and you were trespassing. Access to public property can be restricted.

---

Don't you get it? What do people use to restrict access to public property? A PERMIT. Not a fence, a permit. How does one satisfy the element of "unlawful" for second degree criminal trespassing? They refer to A PERMIT. Not the mere existence of a fence, BUT A GOSH DARN FREAKING PERMIT. Right?

Again, with your logic, are we just supposed to indulge anybody who puts up a fence illegally and steals actual land from us? Or perhaps are our police supposed to know better than to uphold said stolen land, and instead, know their jurisdiction, know their municipal code, and should instead be fighting for our very right to use said land against said thief.

Just because a fence goes up, do we all of a sudden need to bow down to the fence gods and remove EVERYBODY behind it, automatically, without question? Or are the police tasked with upholding all of governing law, and should be using maps, plats, definitions, and their code book TO WHICH WE WROTE AND GAVE THEM TO USE?

Quote:

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Quoting jk

---

So did you have a key to the gate or not? If not you weren’t invited to play in the playground and you were trespassing. Access to public property can be restricted.

---

So.... this comment got me finally thinking about the brass tacks. Thank you for triggering my thoughts! I humbly ask now, why are you jumping one step ahead and already talking about ME and MY invitation or not to "play in the playground" or not, when perhaps you should probably be concerned that somebody had already committed a form of a trespassing violation for the area. THIS WAS THE VERY PURPOSE OF MY STING. I hate to say this, but look at you guys. Does nobody want to admit that somebody already "trespassed" on this land? By putting up a fence illegally? Are you guys seriously, and I'm being dead honest, not capable of emotionally handling that somebody committed an actual hate crime in our society?

I'd like to consider the idea that I WAS THE ONLY ONE WHO RECOGNIZED THE ORIGINAL 23-84 VIOLATION IN THE FIRST PLACE, AND THE ONLY ONE WHO CARED ENOUGH TO REPORT IT IN THE FIRST PLACE, as my "key" to reclaiming MY RIGHT to use MY LAND once again. Thank you very much.

I apologize. I'd like to stick to the facts. But these comments are now verging on downright frightening to me.

And it wasn't even "my land" that I was reclaiming, it was everybody's land that I was reclaiming. You're welcome.

You really like listening to yourself, don’t you?

If all of your charges will be dropped, what’s the point in all of this.

Quote:

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Quoting jk

---

You really like listening to yourself, don’t you?

If all of your charges will be dropped, what’s the point in all of this.

---

Good question. What is the point of all of this? Because until I can make it to a 42 USC court, which I am having difficulty getting to because I have been systematically defamed and discriminated against and denied the help I need to do so with by almost everybody in my life (my family especially) I have no choice but to see if I can hash out the details in the mean time with whomever I can get to. I've briefly spoken with attorneys on this issue, and they don't know what to do without the full information that I have yet to be able to get them. I have at least reported in the mean time what I believe to be said lack of probable cause, as well as crimes like submitting false documents for recording, and attempting to influence (reference the frauded warrantless arrest affidavit failing to mention the email, for example) to internal affairs, but to no avail, as they have also systematically not believed me and even called a "lawsuit scammer" over. And so really, if you want to know the truth, I'm finally getting caught up on the information, and have started to organize it, and release it, and well, I'm trying to get it out there now so that I can possibly get some help now with either a) representation by an attorney who can handle this type of case, or b) if I continue to be "complaint buzzed" and not believed, and not touched, at least show my good faith to people such that perhaps I can get some sort of different type of help now so as to enable me to get to the 42 USC courts myself. Also, I feel like this type of case needs to be discussed in a public forum, as a form of a whistleblow now, because I have been otherwise "silenced" over this issue (as well as literally dozens of others now that I have to deal with) and I am having difficulty getting the help I feel I deserve, to have my rights remain in tact, and well, I also wanted to show people a side of life that they otherwise don't have access to because of the information gap that has grown in this country between those who have help to offer, and those who need that help.

I apologize if this whole thing seems like a one way conversation. I do appear to not have many questions on the subject. I guess I was looking for some sort of confirmation from people, attorneys especially, who know or should know what they're talking about, that I indeed have a case. So far, nobody has given me a smoking gun in the opposite direction, that I absolutely don't have a case. So I guess I'm doing a pretty good job of knowing what I'm talking about? I haven't had much time in the past to start talking on a serous level with other people about this case, and others, and so I just thought I would start somewhere, that's all. And of course, I wanted to "sting" the public in a way, to see how quick people are to judge me, which has been happening a lot offline, and well, sure enough, I guess I was right in that it will happen online too! People don't seem to care anymore about the facts, and are so quick to judge. And so maybe I just wanted to prove that to myself by reaching out one last time in a more official way, before I head on over to 42 USC court to deal with it all myself.

A 42 USC Court?

if you want to file suit in a federal court you do just that. Stop all the useless, meaningless, and frankly, incorrect talk here and file your suit.

no, you don’t have a pretty good idea of what you are talking about. You prattle on with what you think are true facts and ignore anybody that has tried to explain to you that you are wrong.

Quote:

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Quoting jk

---

A 42 USC Court?

if you want to file suit in a federal court you do just that. Stop all the useless, meaningless, and frankly, incorrect talk here and file your suit.

---

Easier said than done. I had (have) previous legal paperwork that wasn't getting done, before all this. I don't think you understand how bad my legal problems are / how little help I've gotten from people / how minimal my capacity is to just waltz down to the courthouse and file. Plus, I don't want to go it alone if I don't have to. Do they offer public defenders for federal civil court?

Quote:

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Quoting jk

---

no, you don’t have a pretty good idea of what you are talking about. You prattle on with what you think are true facts and ignore anybody that has tried to explain to you that you are wrong.

---

Yeah, now you're just using really general language here whereby I have a hard time believing that YOU know what your are talking about.

Can you please summarize to me / point out exactly what words / language / posts you speak of where anybody has halfway successfully, with an ounce of coherentness, explained to me that I am wrong, without just reiterating what the cops wrote in their police report? What specifically am I wrong about? Because if all you got is that "you jumped a locked fence into private property that you had no right to occupy" - I respectfully challenge that as pure hogwash, and nothing but conclusory in nature, precisely what the cops are trying to get away with in their botched police report. Do you have nothing else to offer? Are you telling me that the cops otherwise had probable cause that night? I'm honestly wanting you to spell it out for me. It shouldn't be that difficult.

Seriously, what evidence / facts / etc / more than just conclusory hunches / actual knowledge that reflects accurate municipal code definitions do the police have that the area in question is indeed, private property?

What standards are you holding them to? Are you saying they are allowed to be mistaken on 100% of their "facts" in the face of 100% contradicting information provided to them against those "facts"? Where do you draw that bar of probable cause? Because it all sounds to me like you are drawing it at the floor. Can you maybe describe for arguments sake a situation where the cops wouldn't have probable cause for trespassing, or are you saying that that is impossible, and that they can never be wrong, ever, when they draw up an arrest affidavit?

Please, give something to work with!

Good lord, is this idiot still here? Does he realize that he's not making any sense?

Quote:

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Quoting zoinbergs

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Please, give something to work with!

---

So this is about you being a crusader to free up public property for any use the public thinks they have a right to.

Without getting into your contorted thought process, you miss that even public property is subject to control by legislation of a township, municipality, or city by passing an ordinance.

The Park is Closed From Sunset to Sunrise. If you are caught in the park when it is closed, it is a trespass.

Is that simple enough for you to get your head around?

Quote:

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Quoting budwad

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So this is about you being a crusader to free up public property for any use the public thinks they have a right to.

---

Well, that's the very question I pose -- when somebody erects a fence around public land WITHOUT A PERMIT, whose right is it to use (or in this case, restrict use to) that land? Does the person who erected the fence without a permit have the [continued] right to use / restrict its use, or does the public have the [inherently restored] right to use / reclaim use of that land? Are you saying that the public doesn't have the right to use that land in the mean time just because the fence is up, even though it doesn't have a permit? Are police obligated to check that the area has a permit to restrict its use, or are they allowed to simply, automatically, uphold the restricted non-use of the area by way of the simple existence of the fence in the first place around it, and nothing more? Because if that's the case, what protections do the public have against people who steal public land by erecting fences around it without permits? Because if the public has to wait until the fence comes down, even though the area doesn't have a permit for it, what good is a permit? If that's the case, it looks like the police are then allowed to [temporarily] uphold stolen land, *just because a fence is up around it*? I thought a 23-84 violation was a simple, generic violation of the municipal code...

Sec. 23-86. - Penalty.

The failure of any permittee to comply with the terms of such permit or to vacate the
permitted premises upon revocation of the permit, whether for cause or without cause,
shall be deemed to constitute a violation of the Code and shall be punishable in
accordance with § 1-15.

...that the police should have caught [first] and reported and/or charged the person who did it themselves [in the first place]. If they did their jobs correctly, I don't think they would have ever needed to worry about enforcing some other, opposite trespassing charge against me for, later. I think they would / should have been able to [correctly] uphold my [reclaimed] right to use that land. Whose to say they have to stick up for the person who stole the land, just because they may not consider it their job or something to that effect to check permits? Isn't the existence of the permit or not, say, tied to the element of "unlawful" to which the police should be investigating into before arresting somebody for trespassing? How do they *know* people behind the fence are *unlawfully* there, without a shred of evidence that there is a valid permit in existence for it in order to substantiate the restricted non-use of it? Are the police allowed to simply *assume* the area is restricted, "just because a fence is up around it"? I highly doubt that, I really do.

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

(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.

Quote:

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Quoting budwad

---

Without getting into your contorted thought process, you miss that even public property is subject to control by legislation of a township, municipality, or city by passing an ordinance.

---

Yeah, sure, of course public property is subject to control, WITH A VALID PERMIT TO SUBSTANTIATE AND RESTRICT ITS CONTROL!!! No permit = no control. The idea of "trespassing" goes both ways, does it not? Somebody who puts up a fence illegally around public land without a permit is already "trespassing" on that land, are they not?

I have spoken in great length with the Chief Construction Inspector who sent the takedown notice. I asked him one day what type of area the area in question is, since it didn't have a permit. He literally said to me, "it's just regular old right of way." Yeah, regular old right of way.


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

Quote:

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Quoting jk

---

A 42 USC Court?

if you want to file suit in a federal court you do just that. Stop all the useless, meaningless, and frankly, incorrect talk here and file your suit.

no, you don’t have a pretty good idea of what you are talking about. You prattle on with what you think are true facts and ignore anybody that has tried to explain to you that you are wrong.

---

So I went ahead and harvested all the relevant previous posts that you claim I am "ignoring that they have tried to explain to me that I am wrong."

Quote:

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Quoting flyingron

---

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.

---

Quote:

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Quoting Highwayman

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

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Quote:

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Quoting jk

---

sounds like guilty to me

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Quote:

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Quoting flyingron

---

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.

---

Quote:

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Quoting Mr. Knowitall

---

You have no "civil rights" defense that would allow you to trespass on private property.

An easement on private property does not transform the property into "public property". You have no right to trespass on the land of another merely because a utility company holds an easement over the portion of the land upon which you trespass.

The police saw you hop a fence on private property, and saw you fail to respond to their instructions to come out of that fenced area. Why do you imagine that they would need anything more before arresting you?

Judging from the police report, it was here. Nobody could reasonably confuse that with a public space. The officer took a photograph of the defendant inside the fenced area, so that photo would clearly establish where he was.

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Quoting jk

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If the gate is locked and you don’t have a key, you aren’t in the invited list.

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Quoting jk

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To all of that;

enjoy jail, probation, and or the fines the court imposes upon a finding of guilt.

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Quoting jk

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So did you have a key to the gate or not? If not you weren’t invited to play in the playground and you were trespassing. Access to public property can be restricted.

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Looks like a bunch of conclusory and/or incoherent, ill-defined statements that don't actually provide any meaningful, articulate points to argue for or against.

What's "an easement"? What are "real estate records"? Where do the elements of trespassing talk about "a utility company?" How does everybody know with any certainty beyond a mere hunch that the area in question is indeed "private property?" What relevance does a "locked gate" or a key" have to do with the element, of, I can only presume, "unlawful"?

Come on jk. Give me something tangible to work with! Or do you have nothing actually constructive to provide other than the simple conclusory, evidently non-challengeable statement that, "the cops had probable cause, okay!"

You do talk about "invited" and "restricted access." To which I respond by talking about A PERMIT NEEDED to revoke that permission and restrict that access.


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Quoting cbg

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Good lord, is this idiot still here? Does he realize that he's not making any sense?

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Nice, real constructive. Let's reduce our arguments down to feces throwing and defamation. You got anything more than that to offer?

The public in general has no right to public lands without restriction. You can’t go in to parks when they are closed.

But hey, you want to test your theory?

Go to the local police station. Bring your blanket and pillow and tell the cop since it is public property you have all rights to use it as you desire.

I suspect they might arrange for a place for you to stay.

as to the cops having probable cause; you were seen in an area they understood to be off limits to the general public. That is probable cause to arrest you.

Wow, round and round in circles we go! Can, the, word, PERMIT, come, out, of, your, mouth? Or is that too difficult for you to actually say?

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Quoting jk

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The public in general has no right to public lands without restriction. You can’t go in to parks when they are closed.

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Ooh, did you just say "in general"? And how do the police go about determining, in general, that the public land in question is actually restricted? Maybe, I dunno, by way of seeing A VALID PERMIT? We're not talking about parks here, we're talking about right of way - land that is, usually, generally, inherently open to the public, and otherwise only restricted UPON THE EXISTENCE OF A VALID PERMIT TO RESTRICT SAID AREA. No permit = no restriction. If you want to take a position on this, just type the sentence out "cops don't need to check permits," so that we can get this over with, so that you can officially pick the side it looks like you want to be on (unless I'm mistaken here) so that we can maybe begin to test against that theory and actually have something legitimate to argue over. Because until then, it feels like you will only continue to tread on something along the lines of void for vagueness. Is it the cops' job to check permits, or not?

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Quoting jk

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But hey, you want to test your theory?

Go to the local police station. Bring your blanket and pillow and tell the cop since it is public property you have all rights to use it as you desire.

I suspect they might arrange for a place for you to stay.

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Again, we need to compare apples to apples here buddy. I'm not talking about a police station. I'm talking about PUBLIC RIGHT OF WAY.

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Quoting jk

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as to the cops having probable cause; you were seen in an area they understood to be off limits to the general public. That is probable cause to arrest you.

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Ooh, did you just say "they understood"? AND.... how did they come to this "understanding" you speak of, that the area is off limits? What evidence / tools / definitions / facts / references / signs / maps / visits with the business owner / visions from god / etc. did they use to establish said "understanding" -- beyond mere HUNCHES?

A guy, behind a fence, somewhere in the space time continuum of the universe. That's it? I fail to see how that's good enough to work with. Are you saying that the police can literally ASSUME every single other element of trespassing, with what appears to be mere hunches, and nothing more (again, correct me if I'm wrong here, spell it out for me, what did they use besides hunches)?

In my opinion, only circular logic comes to mind when trying on the cops' alleged probable cause.

COPS: "The business owner wanted to restrict access to their land by putting up a fence on their property."

ME: "How do you know the fence is theirs?"

COPS: "Because they wanted to restrict access to their land!"

ME: "How do you know the land in question is theirs?"

COPS: "Because they put up a fence to restrict access!"

ME: "How do you know it was them who wanted to restrict access?"

COPS: "Because they put up a fence on their land!"

The fence, the land, and the restriction of access. Hmmmm. Looks like all three elements were ASSUMED.

Your adherence to the need of some permit is unfounded and boring.

As to a public row; a public row isn’t even on property owned by the state but merely an easement for The benefit for the general public. (not necessarily by the general public. There can are typically are restrictions of how a public row can be used.

For example; many roads are public row’s on private property. Does that mean you can do anything on the road anytime you wish to? Obviously not. IF the area you are dealing with is a public right it way, that does not mean the general pubic has access to and rights to use it as they choose.

You seem to be confusing a public right away for the purposes of travel or recreation and a public right of way for use by the government or their assigns for the benefit of the people.

As for elements being assumed; your point? In some cases it’s perfectly fine to assume elements. Here’s one for ya;

a person can allow another person to beat them with a bat. As such there is no crime perpetrated by the person with the bat.

Now if the cops cops come along and see you with a bat in your hand and an unconscious guy lying on the ground they can rightfully assume you did it. The can also assume the guy on the ground didn’t give permission since most people wouldn’t allow such. The cops can arrest you based on the sssumed facts. If the guy wakes up and says; I told him to hit me, then you walk free. If he doesn’t, then you go to trial.

in your case it can be assumed that if you didn’t have the key to the lock on the gate the owner has not granted you permission to be inside the fence. As such, the cops can arrest you on suspicion of trespassing.

Quote:

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Quoting jk

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As to a public row; a public row isn’t even on property owned by the state but merely an easement for The benefit for the general public. (not necessarily by the general public. There can are typically are restrictions of how a public row can be used.

For example; many roads are public row’s on private property. Does that mean you can do anything on the road anytime you wish to? Obviously not. IF the area you are dealing with is a public right it way, that does not mean the general pubic has access to and rights to use it as they choose.

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I think you may have assumed I was using a certain set of definitions. I am NOT talking about "rights of way" when dealing with easements / utility companies / property that isn't owned by the state. I'm talking about GENERIC PUBLIC LAND THAT EXISTS WITHIN THE 100 FEET THAT EXISTS BETWEEN THE PARCELS AND THEIR RESPECTIVE PROPERTY LINES. Like, THE STREET. Anything between that 100 FEET is treated as pure public land, not an easement, not something that people have the "right" to use to get from one place to another, like an easement to access your house by having to walk through somebody else's yard. I'm talking about THE CITY STREETS THAT WERE LAID OUT 143 YEARS AGO VIA THE CITY PLATS. Real simple stuff. Like, parcels, blocks, good old fashioned PUBLIC LAND that the cops should be very well aware of by now. Their patrol maps, which reflect their GIS maps, reflect this 143 year old plat I speak of. BLOCKS OF PARCELS vs CITY STREETS. Nothing more.

http://www.mediafire.com/file/98xn8z..._Town_Plat.pdf

http://www.mediafire.com/file/bmmwai..._Site_Plan.pdf

http://www.mediafire.com/view/1s1jy4...laza%20PUD.png

http://www.mediafire.com/view/tkw7wx...laza%20PUD.png

Quote:

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Quoting jk

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IF the area you are dealing with is a public right it way, that does not mean the general pubic has access to and rights to use it as they choose.

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I never said I had a right to use it as I choose. I said I have an inherent right to use it, as anybody does, until somebody legitimately *restricts* the use of it, by way of A VALID PERMIT. As far as I know, there is only ONE way to restrict the use of PURE PUBLIC STREET, and that is with A VALID PERMIT. No permit = a 23-84 violation. Are you saying that the cops don't need to know what a 23-84 violation is? (Because it's a misdemeanor in their municipal code, just like a natural area camping ticket 23-193(d)(19), that I can only imagine they have the power to issue citations over.) Are you saying that the police don't need to know what the GENERIC definition of a PUBLIC STREET is?

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

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Quoting jk

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You seem to be cconfusing a public right away for the purposes of travel or recreation and a public right of way for use by the government or their assigns for the benefit of the people.

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See above. I think it is YOU who are confusing the two. The "public right of way" I am speaking of, is the generic public land, known commonly to most as THE 100 FOOT WIDE STREET, complete with its "gutter, curb,
shoulder, sidewalk, sidewalk area, parking or parking strip, median and any public way." The area I jumped into I believe would fall under "and any public way."

Quote:

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Quoting jk

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As for elements being assumed; your point? In some cases it’s perfectly fine to assume elements. Here’s one for ya;

a person can allow another person to best them with a bat. As such there is no crime perpetrated by the person with the bat.

Now if the cops cops come along and see you with a bat in your hand and an unconscious guy lying on the ground they can rightfully assume you did it. The can also assume the guy on the ground didn’t give permission since most people wouldn’t allow such. The cops can arrest you based on the sssumed facts. If the guy wakes up and says; I told him to hit me, then you walk free. If he doesn’t, then you go to trial.

in your case it can be assumed that if you didn’t have the key to the lock on the gate the owner has not granted you permission to be inside the fence. As such, the cops can arrest you on suspicion of trespassing.

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You gotta compalre apples to apples here. Trespassing is very BLACK and WHITE type of charge, as far as I can tell, which requires CRITICAL elements to establish, that most of which may not be assumed. When talking about private property trespassing, one of the critical elements needed for arguable probable cause is that a person must be personally communicated the revocation of their permission, by the property owner, and that the person has to also willfully refuse to heed that revocation request. There is plenty of case law out there where the cops did not enjoy qualified immunity because they thought they could assume that that all important element of "unlawful." Here, in my situation, I am positing something similar, in that a critical element of "unlawful" for public property trespassing, is that one establishes the restriction of permission, via simply looking up to see if the location has a VALID PERMIT.

For arguments sake, let's say I jumped the fence during the day. Are you saying that the cops can arrest me willy nilly, without so much as a phone call to their city manager's office first, to check the status of the permit? Or are they allowed to check that status after I'm arrested? Sounds like a wasted trip to the jail if all it takes is a second or two to call the city zoning department up. I have a hard time believing that the cops can legally assume that the area is restricted *just* because a fence is up, and nothing more. What exigent circumstances exist that place such pressure on the cops to turn a "presumed innocent until proven guilty" scenario into what looks to be a purely opposite, "guilty until proven innocent" scenario? What if the city manager sent out regular memos to the police whenever permits went invalid? The knowledge of a permit I can only imagine PRECEDES the ability to arrest somebody on "suspicion" of trespassing. Without know what the status of the permit is, how can one say with any confidence that the person is *unlawfully* inside the area?

Again, you have yet to answer my master question. Are cops allowed to "uphold" stolen land that somebody took by way of erecting a fence without a permit? The cops don't work for the person who stole the fence. The cops work for the public, and in my opinion, should be upholding MY RIGHT to use that land, if somebody else has stolen it from us. Why entertain anything otherwise? Say the cops got a phone call from the city manager right before I jumped the fence, personally informing them that the area does not have a valid permit to restrict it's use. Are you saying the cops would still have the right to arrest anybody hanging out inside of it, or DO YOU THINK THE COPS CAN BE SMART ENOUGH TO LET PEOPLE HANG OUT INSIDE OF IT KNOWING IT DOESN'T HAVE A VALID PERMIT? I think they would be pretty hard pressed to arrest somebody knowing full well that the critical element of "unlawful" -- which would otherwise require them to present a valid permit at trial in order to substantiate -- was definitely not being met in the streets first.

My question involves criminal law for the state of: CO

To the NAZI loser who feels the need to close my previous thread on said subject, could you please describe why you felt you needed to silence such a conversation, other than an immature decision because you just didn't like how the conversation was going? Come on, BE PROFESSIONAL and stop silencing shit. What forum policy have I violated? Please elaborate.

The reason I have a problem with what you did, is because I was in the middle of getting to the bottom of what I believe the issue at hand is. Here is my final post regarding said subject, BECAUSE I THINK THE PUBLIC NEEDS TO BE TALKING ABOUT THIS SORT OF THING, ESPECIALLY IN A FREAKING LEGAL FORUM. STOP SILENCING THE VERY TALK YOU OPENED UP YOUR FORUM FOR!!!!!

Quote:

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Quoting jk

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in your case it can be assumed that if you didn’t have the key to the lock on the gate the owner has not granted you permission to be inside the fence. As such, the cops can arrest you on suspicion of trespassing.

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You seem to keep getting ahead of yourself. How do the cops know it's private property? How do they know some owner of said alleged private property has not granted said permission to be inside of it? Just the mere existence of the fence? How do the cops know the property owner who they think erected the fence, was in fact the person who erected said fence? You can't be assuming EVERY element of trespassing. You gotta have SOMETHING that resembles a fact or evidence to work with. A FENCE, alone, does not equal evidence of private property plus a private property owner's permission, because it could just as easily be evidence of a permission being revoked for public property. Another way to put it, considering I tested out a similar theory with great success, was where I got falsely arrested for not showing my receipt at a Walmart. The retarded cop who arrested me likely thought that not showing a receipt was evidence that I had not paid for my item, however obviously not showing a receipt, and nothing more is EQUALLY likely to be evidence that I simply don't want to show my receipt. At most, seeing an erected fence, and nothing more, just like witnessing somebody not show a receipt, and nothing more, requires FURTHER investigation to eliminate the possibility of innocence from that of guilt. And no, I don't think I should be held in the mean time if I don't show my receipt, for the cop and clerks to establish my innocence while going and looking me up on video footage / checking the registers, just like I don't think I should be held in the mean time, JUST TO CHECK THE STATUS OF THE PERMIT FOR THE FENCE. You may think, well, more people than not who don't show their receipt are more likely to be shoplifters. Sorry buddy, that's guilty until proven innocent, NAZI like mentality there. Just because a fence exists, you may also think that more likely than not the existence of that fence is legitimate. Nobody, or at least very few people, erect fences without a permit, right? However, the POSSIBILITY that the fence is illegitimately placed is still 50/50 compared to legitimately placed, without any further investigation on the part of the officers to differentiate between the two. They may have a hunch, which is great. So go follow up on that hunch! Don't assume the fence is up legally, just so I can sit in jail, just because you think some sort of "exigent" circumstance exists that you just "couldn't let your nigger go" and you had to arrest him before you could SIMPLY GO LOOK UP A FREAKING PERMIT FOR THE AREA. Sounds like a royal waste of tax payer dollars, and a pure infringement on my fourth amendment rights, in my opinion.

This is getting ridiculous.

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Quoting Highwayman

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This is getting ridiculous.

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getting?

which is obviously something the op never will understand.

Come on guys. What do you mean by "something the OP will never understand"? Let's be serous here. Cut the crap. Drop the defamation. What exactly do you mean by "ridiculous?"

Wait, you guys think I'm.......... LAWSUIT SCAMMING? Taking advantage of innocent cops using close-to technicalities? I only say such words because I've been told such things before. Nice try if that's where you were going.

You guys don't think that this is a drop dead serious issue? You think that I'm not allowed to (evidently successfully) test out a hypothesis that cops are kidnappers that use nazi like "guilty until proven innocent," pick somebody up without evidence (no, with opposite evidence!) mentality?

What is it? Why such immaturity? Why can't you guys provide ANY actual constructive conversation on the subject? You guys can't handle that I caught dirty cops? DEAL WITH IT. OR refute my claims. Give me something to work with! Anything. Please. What is so ridiculous about this scenario? Too good to be true for your little brains to handle?

What happened to our conversation such that you had to start throwing your hands up with claims of ridiculousness? Does every country not have the possibility of turning into a lynch mob witch hunter NAZI regime kangaroo court?

Seriously, without *actually* explaining yourselves, you guys are treading on VOID FOR VAGUENESS. Grow up and start having a real conversation with me. Are cops required to know permits, 23-84 violations, the definition of right of way, their most basic 143 year old plats and maps, OR NOT????

What standards are you guys holding these cops to? NONE? You think cops can't be wrong?

Please don't tell me I have to actually waltz on down to the 42 USC courts JUST to argue such basic concepts with some sort of definiteness.

ri·dic·u·lous
rəˈdikyələs/
adjective

• deserving or inviting derision or mockery; absurd.
  [COLOR=#878787 !important]"when you realize how ridiculous these scenarios are, you will have to laugh"

• 
  

  synonyms:

  laughable, absurd, comical, funny, hilarious, risible, droll, amusing, farcical, silly, ludicrous; More

  
  
  
  
  

[/COLOR]


I cannot provide any constructive discussion because the entire premise is ridiculous.

Quote:

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Quoting jk

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I cannot provide any constructive discussion because the entire premise is ridiculous.

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So are you saying then that the cops that night had arguable probable cause? Because if you're wrong, and I go to 42 USC court and prove everything *in a court of law* and the judge agrees with me without any issue whatsoever, it kinda looks like you bought the cops' crap and don't know what kidnapping is!

I understand law can be complicated, but it can't be *this* complicated. I mean, what good is a legal forum if, as you say, "the entire premise is ridiculous."

I guess, according to you, I'll HAVE to sort things out in court, and deal with real people who will actually try on the thoughts necessary to work with this type of scenario.

You are making this much more complicated that it needs to be.

It doesn't matter one whit if the fence was legally there or not. The presence of the fence or its legality is totally irrelevant to whether you were there legally or not.

If you were trespassing without the fence, then you're trespassing with the fence. Whether or not the fence is also trespassing doesn't matter a whit to what you were doing.

Sort of like the fact that if you were going 80 in a 50 mile zone, it doesn't matter at all that there was another car on the road going 90. YOU were speeding. You can be ticketed for it regardless of whether the other guy was speeding as well, or not.