Dec 26, 2008 The pathetic one-way street of no trespassing signs
If a civilian walks or drives past NO TRESPASSING signs, s/he can get arrested, searched "incident to arrest", brought before a judicial officer to have a bond set, and prosecuted for trespassing. The suspect can be prosecuted even if s/he is illiterate, does not understand English, has bad eyesight, or does not see the NO TRESPASSING sign because it is dark and the sign is not illuminated; the defendant will be permitted to raise such a defense, and the arresting cop may testify or testilie that the defendant confirmed s/he saw the sign (while collapsing chronology about whether the defendant said s/he saw the sign only when the cop pointed it out, and obscuring whether the defendant said s/he could read or understand the language on the sign, and whether its lettering was obscured by the dark, by tree branches, or by years of wear on the sign). In many jurisdictions, the maximum possible penalty for trespassing is too short (not more than 180 days) so as to preclude the right to a jury trial, which is a travesty of justice, because no person should be subjected to conviction of a jailable crime without the right to a jury trial.
If a cop knowingly passes no trespassing signs in Maryland to investigate a crime, s/he can get a free pass. I complained about this last March when Maryland’s Court of Special Appeals gave its blessings to such behavior, and I complain about it now all the more loudly now that Maryland’s highest court yesterday affirmed. James Desmond Jones v. Md., ___ Md. ___ (Dec. 23, 2008). Adding salt to this wound to the Fourth Amendment, this week’s Jones opinion permits cops to persistently knock (read "bang" or even "pounding as if with a battering ram"?) on the door of one’s home for minutes on end, without running afoul of the Fourth Amendment.
Maryland’s Court of Appeals reasons that the house’s occupants have as much of an option to refuse to come to the door with such persistent police knocking/banging as when a solicitor comes to the door. But wait, if the Court of Appeals is saying that no trespassing signs are of no use with the police, what type of confusing — at best — message does this send about whether the house’s occupants can then tell the cops to get the hell off their property, which is permitted against solicitors (and the very act of the solicitor coming on the property posted for no trespassing gives the occupant an immediate right to call the cops on the solicitor without the occupants first saying a word to the solicitor)? If the occupants tell the cops to scram and the cops don’t scram, since when should the occupants expect they will be successful in calling the cops to get the visiting cops to scram? If solicitors keep banging on the house door and the occupants call the cops, the cops might arrest the solicitors for disturbing the peace; the same will not happen to cops who bang on the door. James Desmond Jones v. Md.
And what about cops who bang on the door and yell "Open the f–kin’ door, or we’ll mess you up good, and haul your ass to jail" and then lie that they politely knocked on the door for a few moments and politely asked to speak with the occupants?
Excuse me while I get a bucket and hurl. Jon Katz.