THE LAWS OF TRESPASS IN FLORIDA

AS THEY MAY APPLY TO PROCESS SERVERS

By: Donald S. Eisenberg, Esq.

THE BASICS

Trespass Statutes

Section 810.08 of the Florida Statutes entitled "Trespass in structures or conveyances" reads:

"Whoever, without being authorized, licensed or invited, willfully enters or remains in any structure...or, having been authorized, licensed or invited, is warned by the owner...to depart and refuses to do so, commits the offence of trespass...."

When an invitation has been extended to enter an open business, actual communication is necessary to put a person on notice that he is no longer welcome on the property.  Smith v. State, App. 2 Dist., 778 So 2nd 339(2000).

Section 810.09 of the Florida Statutes entitled "Burglary and Trespass" reads:

"(1)(a) A person who, without being authorized, licensed or invited willfully enters upon... property... as to which notice against entering or remaining is given, either by actual communication...or by posting, fencing..."

"(2)(b) If the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person,...the offender commits..." the offense of Trespass.

Land which is enclosed by a legal fence, and which is posted, is legally closed, and unauthorized entry is prima facie evidence of trespass.  Op. Atty Gen. 057-359, Nov. 15, 1957.  This does not apply to unenclosed land.

The Florida Statute words "after warning" are not void for vagueness.  Daniel v. City of Tampa, Fla., CA 11 (Fla) 1984, 38 F. 3d 546.  In a prosecution for criminal trespass on land, the issue is whether defendant willfully committed the trespass alleged without lawful justification. Boykin v. State, 40 Fla. 484, 24 So. 141 (1898).  To convict a person of violating the statute, the state must prove four elements: (1) defendant willfully entered or remained on property; (2) other than a structure or conveyance; (3) without being authorized, licensed or invited; (4) when notice against entering or remaining had been given.  Seago v. State, App 2 Dist., 768 So.2d 498 (2000).

For purposes of trespass in a structure, the owner can limit or revoke the invitation to come on his land and if the person invited then refuses to depart, he commits the crime.  State v. Smith, supra.

IS "PROCESS SERVER" SYNONYMOUS WITH "POLICE OFFICER"?

Section 48.021 of the Florida statutes requires that all process "shall be served by the sheriff, "except that initial non-enforceable civil process may be served by a special process server appointed by the sheriff...or by a certified process server..." Sutor v. Cochran, 687 SO.2d 897(1997).  A footnote to the statues reads:

"FN 2. Both special...and Certified process servers perform a valuable function by relieving the sheriff the statutory duty to serve the process in all cases, thus enabling the sheriff's office to concentrate on performing its essential law enforcement functions, such as making arrests, ..."

Section 843.01 and 843.02, of the Florida Statutes entitled "Resisting officer with violence to his person "and" without violence read as follows:

"Whoever knowingly & willfully resists, or obstructs or oppresses any officer...or other person legally authorized to execute process in the execution of legal process or in the execution of any legal duty, is guilty of a felony in the third degree "(843.01)" or...guilty of a misdemeanor of the first degree,... "(843.02)." (Underlining Added).

Section 48.03 1(b) of the Florida Statutes reads:

"Employers, when contacted by an individual authorized to make service of process, shall permit the authorized             individual to make service on employees in a private area designated by the employer."

The above Case Law, Sutor, supra., and Statutes, raise the assumption that a process server, while in the act of serving process, falls within the purview and protection of these statutes.

THE LAW

Section 112.182 F.S.(1990), abolished the common law rule which held that officers upon land of another while carrying out their official duties occupied the status of a mere licensee, and gave such an officer the status of an invitee.

A police officer is entitled to the same status, that of being an invitee, as any other person lawfully on property, if he lawfully enters upon the property in the discharge of his duties.  The officer's presence on property of another must be analyzed in light of the legality of the purpose for which the officer entered upon the property.

A police officer in the scope of his duties may approach a person's front door and knock in an attempt to speak to that person.  United States v. Santana, 427 U.S. 38, 96 S. CT. 2406, 49 L. Ed. 300 (1976).  Under Florida law, it is clear that one does not harbor an expectation of privacy on a front porch where a salesman or visitor may appear at any time.  State v. Morsman, 394 So. 2d 408, 409 (Fla. 1981).  However, the right to approach a front door is tempered by the general rule that the curtilage surrounding the house is entitled to the same protection as the home.  A person's back yard falls within a "...zone clothed by a reasonable expectation of privacy." Morsman, supra.

In Potts v. Jackson, 654 So. 2d 596 (1995), the court held: "...Potts (the officer), had the right to enter Johnson's property and knock at the front door...it is equally clear that Potts could not have legally entered Johnson's back yard..." (Parentheses Added).

We previously discussed that trespass to real property is an injury to or use of the land of another by one having no right or authority.  In Guin v. City of Riviera Beach, 388 So. 2d 604 (1980), the court stated:

"We turn, then, to the ultimate legal issue in this case, whether law enforcement personnel have a right, under appropriate circumstances, to enter upon private property.  The law answers that question in the affirmative.  'When the lawful performance of his duty requires that an officer enter upon private property, to make a general inquiry, such an entry is             justifiable.'" (Citations Omitted).

In State v. Smith, 348 So. 2d 637 (1977), a question was raised whether a Sheriff's Deputy was trespassing when he approached the door to a defendant's house.  The court held that this was a matter of law and not a matter of fact.  The court applied the law in State v. Belcher, 317 So 2d 842 (Fla. 2d DCA 1975) that:  "...when a police officer enters upon private property in the performance of his duty, conduct on his part that would otherwise be a trespass is justifiable...we cannot conclude that Deputy Rolling was trespassing when he approached Smith's door in performance of his duty as an officer."

CONCLUSION

Even though there is no direct case law on the question of whether a process server has the same rights as a law officer when performing his functions serving process, it appears to this author that the process server has the right to do the following without worrying about being charged with being a trespasser:

1 - Enter upon the front porch of a residence and knock on the door to serve process;

2 - Enter a structure or conveyance in order to serve process;

3 - Enter land not posted, fenced or locked to serve process; however, upon a request by the owner, or authorized person, to the process server to leave, a process server must do so; and,

4 - A process server may not enter upon locked or fenced property where a notice of trespassing has been posted.

Donald S. Eisenberg, Esq. is an attorney licensed to practice in the State of Wisconsin. He is also the president of Investigative Legal Services, Inc. in Orlando, Florida.  Don is a past president of FAPPS and has been a NAPPS Member since 1992. He currently serves the NAPPS Membership on the Board of Directors and as Chair of the Continuing Education Committee.  Don can be reached at (888) 426-6968.