Why are trespassing laws so important to private property and security operations? Because most security officers’ jobs are to “prevent and deter” criminal activity before it happens which involves removing Opportunity, Ability and the Desire to commit crimes (Triangle of Crime).
Many times, having someone leave the area under trespassing really is preventing other
crimes such as: drug dealing, prostitution, theft, robbery, disorderly conduct, loitering, burglary, assaults, etc.
If individuals don’t belong on the premises, get them moving and out of there. Making contact and escorting them off the property takes care of the problem and prevents additional crimes or issues, which is why most clients have security on location in the first place.
With that said, some clients and some security companies may not want officers to be that proactive, but just know you are within the scope and letter of the law if you do make such an arrest (that is, escorting unwanted individuals off the property).
If security officers allow anyone or any agency to tie their hands on trespassing, they are preventing the officers from doing their overall job and interfering with a contract for services with their client, to include denying their client city services that tax dollars are paying for.
“Observe and Report” is what people like to throw at security guards as if it is a requirement or regulation – they are wrong, as that is a “term” and not a requirement for guards to do nothing. Texas Code of Criminal Procedures Art 14.01 provides security officers with the authority to “Arrest,” not observe and report.
Texas Penal code 30.05 says “Owner or Someone with apparent authority,” that means security (does not state a peace officer, it says ‘someone’), can make the arrest.
The code reads “enters or remains” (either), without consent (permission) and they received notice. Notice, as stated, can be either oral (the guard telling the individual to leave) OR written (sign posted or paperwork).
This does not state both, it says “OR.” You do not need a sign or a fence if you are orally telling the person(s) to leave. Signs and fences are great, but they may not be on every property and you are not required to have them to make a lawful arrest. You telling them in uniform and as a representative of the owner “orally” outweighs or outranks any sign posted.
There is nothing in this law anywhere that states a “criminal trespass warning” (CTW), must be given or that individuals get one free warning first, or that only a police officer can tell them not to come back or leave (it does not state that anywhere in the law/code).
Keep in Mind: This is private property, not public property, and if you are affecting a citizens arrest for a crime committed in your presence, law enforcement has to take the arrest and they have nothing to do with it other than transporting the suspect to jail unless they feel no crime was committed.
Police have a duty to provide service and take your lawful arrest before a magistrate; if they refuse, this is an issue that will have to be taken up with their chain of command and possibly your company’s legal department.
Do not get into a dispute with the police officer on the scene; collect his information, log it, and notify your supervisor right away. City services (police departments) cannot pass or impose departmental “policies” to stop, delay, or give second changes to crimes found in the Texas Penal Code book – it is a crime; it’s on the books, and it is an arrestable offense of a class B misdemeanor committed in your presence.
Class-C offenses, some departments could write a ticket; Class-B offenses, they have to transport and thus the reason for the resistance to the issue (some departments might be able to cite and release, but they should do something).
You need to make sure you are in the right and know what you are doing, and know the law. Some law enforcement persons will say that you do not have the authority to give a trespassing warning or arrest, and that only the owner, manager or leasing agent can.
This is their attempt to not acknowledge your legal authority and contracted authority on private property… Please NOTE: “someone with apparent authority” means YOU – Security!
You work for the client; you’re in uniform – they know you are security for that particular property and a contract is in place which gives you that authority… and that is the bottom line. You are the “Agent of the Owner” which is a legal term and must be recognized; why else are you on the property in a security capacity?
Sec. 30.05. CRIMINAL TRESPASS.
A person commits an offense if the person enters OR remains on or in property of another, including residential land, agricultural land, a recreational vehicle park, a building, or an aircraft or other vehicle, without effective
consent and the person:
Class B misdemeanor crime in the Texas Penal Code and a crime committed in your presence, so OCC14.01 would apply to you.
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