SENATE BILL REPORT

SB 5108

As Reported By Senate Committee On:

Land Use & Planning, February 24, 2003

Ways & Means, March 10, 2003

Title: An act relating to criminal trespass.

Brief Description: Removing statutory authority for access to private property for governmental purposes.

Sponsors: Senators Mulliken, Stevens, Morton, Honeyford, Swecker, McCaslin and Parlette.

Brief History:

Committee Activity: Land Use & Planning: 2/13/03, 2/24/03 [DPS, DNP].

Ways & Means: 3/6/03, 3/10/03 [DP2S, DNP].

SENATE COMMITTEE ON LAND USE & PLANNING

Majority Report: That Substitute Senate Bill No. 5108 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Mulliken, Chair; McCaslin, Morton and T. Sheldon.

Minority Report: Do not pass.

      Signed by Senator Kline.

Staff: Jennifer Arnold (786-7471)

SENATE COMMITTEE ON WAYS & MEANS

Majority Report: That Second Substitute Senate Bill No. 5108 be substituted therefor, and the second substitute bill do pass.

      Signed by Senators Rossi, Chair; Hewitt, Vice Chair; Zarelli, Vice Chair; Hale, Honeyford, Johnson, Parlette, Roach, Sheahan and Winsley.

Minority Report: Do not pass.

      Signed by Senators Brown, Fraser, Poulsen, Regala and B. Sheldon.

Staff: Steve Jones (786-7440)

Background: A criminal trespass is committed when a person knowingly enters or remains unlawfully on the premises of another. A person "enters or remains unlawfully" when that person is not "licensed, invited or otherwise privileged" to be on the property in question. In general, a person does have privilege and license to enter unfenced, unimproved and apparently unused land unless the land has been conspicuously posted or such person has been given personal notice not to enter.

There are three defenses ordinarily available to a charge of trespass: (1) the premises were open to the public and the defendant complied with all lawful conditions imposed on access; (2) the defendant reasonably believed that the owner of the property would have allowed entry; or (3) the defendant was attempting to serve legal process.

Under current law, many public officials are granted immunity from trespass violations and are given statutory authority to enter private property in furtherance of achieving the statutory goals. Under the Fourth Amendment to the U.S. Constitution and Article I, section 7 of the state Constitution, either consent of the landowner or a search warrant must be obtained prior to an official's entry onto private property. A court will issue a search warrant only if the official establishes a reasonable cause to believe that a violation has occurred. However, state and federal courts have held that warrantless, administrative searches may legally occur in limited circumstances to enforce regulatory and licensing statutes if necessary to enforce a substantial public interest. These warrantless searches have been approved under a number of legal theories, including a determination that heavily regulated industries do not have a reasonable expectation of privacy, or that obtaining a governmental license (for example, to operate a nursing home or a restaurant) includes an implied consent to periodic inspections.

Summary of Second Substitute Bill: Criminal trespass in the first and second degree includes law enforcement officers, state public officials, and state employees. A law enforcement officer, state official, or employee is subject to a criminal trespass violation under the same circumstances as any other person, with four exceptions. It is not a violation of the criminal trespass statutes to enter or remain on premises or in a building when: (1) responding to a law enforcement, fire or medical emergency; (2) the official or employee has obtained a warrant or other court order and has made a reasonable attempt to notify the property owner and obtain the owner's permission; (3) the landowner has consented; or (4) the official or employee is acting under lawful authority and has first made a reasonable attempt to notify the owner.

The terms "law enforcement officer" and "state official or employee of the state" for the purposes of the criminal trespass statute are defined.

Second Substitute Bill Compared to Substitute Bill: The legal standard for criminal trespass by state officials is made equivalent to the standard for law enforcement officers.

Substitute Bill Compared to Original Bill: The original bill was not considered.

Appropriation: None.

Fiscal Note: Available.

Effective Date: Ninety days after adjournment of session in which bill is passed.

Testimony For (Land Use & Planning): "Right of entry" statutes should be eliminated to uphold the Fourth Amendment constitutional rights of citizens and prohibit warrantless searches. Officials should be required to obtain warrants in order to protect the rights of citizens while at the same time allowing agencies to do their jobs. This bill would not prevent agencies from doing their jobs; it would merely require agencies to obtain either the "informed consent" of the owner, as is the practice of most agencies currently, or a warrant.

Testimony Against (Land Use & Planning): Weed boards and weed districts oppose the bill because they must inspect many properties daily and they do not have sufficient staff or funds to complete the additional paperwork that would be associated with obtaining warrants. The warrant requirement would delay weed control. Further, the weed boards and districts do not have a history of citizen discontent with their current access policies. The Department of Agriculture would like an exception for plant disease control inspectors and for state veterinarians to be allowed onto private property without a warrant. The Department of Fish and Wildlife would like an exception for biological staff and volunteers to enter property without a warrant.

Testified (Land Use & Planning): Dan Fazio, Washington Farm Bureau (pro); Robert Freeman, Wash. Tea Party (pro); Bruce Bjork, WDFW (concerns); Ezra Eickmeyer (pro); Steve McGonigal, WA State Noxious Weed Control Board (con); Ray Fann, State Weed Board, Whatcom Co. Nox. Weed Control Bd. (con); Tony Stedlemen, Grant Co. Weed Dist. #3 (con); Leslie Emerick, WSDA (concerns); Merton Cooper (pro).

Testimony For (Ways & Means): The bill reinforces and clarifies existing law. This is necessary because some state employees have intimidated businesses. The Attorney General advises agencies to be cautious in entering property. The bill provides a reasonable legislative scheme. Any damages assessed against state employees guilty of trespass would be minor.

Testimony Against (Ways & Means): The bill undermines a wide variety of state programs including those implemented by the departments of Health, Ecology, Natural Resources and Labor & Industries. There will be increased costs because of litigation and the agencies will need to cover these costs by increasing license and permit fees.

Testified (Ways & Means): Senator Joyce Mulliken, prime sponsor; Dan Fazio, Farm Bureau (pro); Carol Jolly, Governor's office (con).