Trespassing

Policy: Trespassing     

Author: Chief Joseph Hallman 

WILEAG Standard: 6.1.12

Issue Date:  April 27, 2016 

Reviewed Date: March 20, 2026

Revised Date: March 20, 2026

 

Purpose:

In March 2016, Wisconsin Act 176 was ratified into law requiring law enforcement agencies to have a policy regarding the investigation of complaints alleging violations of Wis. Stat. §943.14, Trespassing.

Policy:

Any and all complaints, regarding criminal trespass into a dwelling, received by the University of Wisconsin-Platteville Police Department will be investigated following the procedures outlined below.

Definitions:

1. Criminal Trespass to Dwellings (Wis. Stat. §943.14)- whoever intentionally enters or remains in the dwelling of another without the consent of some person lawfully upon the premises or, if no person is lawfully upon the premises, without the consent of the owner of the property that includes the dwelling, under circumstances tending to create or provoke a breach of the peace.

2. Dwelling- a structure or part of a structure that is used or intended to be used as a home or residence by one or more persons to the exclusion of others.

Procedures:

1. University Police shall not remove a person from dwelling in a landlord–tenant dispute or a dispute between residents, pursuant to Wis. Stat. §175.403(2), unless:
   1. The University Police Department or University Police Officer has received a complaint alleging a violation of the criminal trespass statute; and,
   2. The University Police Officer has probable cause that the person to be removed is committing a violation of the criminal trespass statute.
2. Adherence to this policy is required because the department and officers may be liable for unlawful evictions. Wolf-Lillie v. Sonquist, 699 F.2d 864, 872 (7th Cir. 1983) (upholding a sheriff’s liability for his department’s pattern and practice of not following Wisconsin’s civil eviction process).
3. As detailed below, an officer should understand:
   1. A person may be a tenant with legal rights to remain on the premises, even if that person is not named in a written rental agreement. Removing a person simply because the person is not named in a written rental agreement could result in the officer effecting an unlawful eviction.
   2. A person may be lawfully present on the premises because the person is an allowable guest. The officer must determine whether the person had consent to enter or remain in the dwelling.
   3. The person should not be removed unless the person’s unlawful entering or remaining on the premises tends to create or provoke a breach of the peace. Good faith landlord-tenant disputes or genuine uncertainty about a person’s status as a tenant tend not to create or provoke a breach of the peace because the civil eviction process is designed to peaceably resolve these issues. When a person breaks into a vacant residence and “squats” a breach of the peace is more likely to occur.
4. As outlined below, in many landlord-tenant situations, investigating whether or not an individual is a tenant is factually complex. It is the policy of this agency to investigate alleged violations of Wis. Stat. §943.14; however, these investigations shall not take priority over critical victim and community protection priorities, such as investigating and responding to violent crimes.
5. In order for a law enforcement officer to have probable cause that a person is committing a violation of the criminal trespass statute, the officer must establish probable cause as to each element of trespass.
   1. Is the person a tenant? As an initial matter, the officer must establish that person alleged to be committing the violation is not a tenant who has a legal right to remain on the property.
      1. Legal Background
         1. Under Wisconsin law, the absence of the person’s name on a written rental agreement does not establish that the person is not a tenant.
         2. A tenancy may be created by verbal agreement between the landlord and the tenant. Wis. Stat. §704.01(3m). Like other forms of tenancy, a tenancy established under a verbal rental agreement may only be terminated with proper notice and through the civil eviction process. Therefore, a person who is a tenant and who has not been evicted by the sheriff through the civil eviction process is not trespassing.
         3. Further, a tenancy at will is created when a person resides in a dwelling “with permission of the tenant’s landlord without a valid lease and under circumstances not involving the periodic payment of rent.” Wis. Stat. § 704.01(5). Therefore, someone may be a tenant, even if the person does not pay rent on a regular basis. Once a tenancy at will is established it may only be terminated with proper notice and through the civil eviction process. Therefore, a person who is a tenant at will and not evicted by the sheriff through the civil eviction process is not trespassing.
      2. Steps to Investigation. In order to establish probable cause that a person is not a tenant, an officer must do all of the following:
         1. Establish probable cause that no written or verbal lease agreement existed between the person and landlord nor between the person and any agent of the landlord.
            1. Ordinarily, this would require interviewing the landlord, the landlord’s agents, the alleged trespasser and any other individuals, such as other residents, who may have knowledge as to the existence of a written or verbal rental agreement.
            2. Reviewing any written lease agreements may be helpful, but the existence or absences of a written agreement does not establish that a separate verbal agreement did not exist.
         2. Establish probable cause that the person is a not a tenant at will.
            1. A tenancy at will exists whenever the person resided at the dwelling with the permission of the landlord. The existence or absence of a written rental agreement is generally not relevant to whether or not the person is a tenant at will. To establish the existence or absence of permission, in addition to interviewing relevant individuals, the officer shall investigate all of the following:
               1. Whether the person lived at the dwelling for a length of time as evidenced by:
                  1. The presence of the person’s belongings, such as clothes, appliances and other possessions; or,
                  2. Whether or not the address of the dwelling is listed on the person’s mail, ID or other documents.
               2. Whether the landlord or landlord’s agent knew of the person’s presence at the dwelling and agreed to the person’s presence or did not object to the person’s presence, as evidenced by:
                  1. Whether or not the landlord or landlord’s agent had occasion to learn of the person’s presence during maintenance or other visits to the property;
                  2. Whether or not the landlord or landlord’s agent accepted rent from the person; or,
                  3. Other relevant information.
   2. For persons who are not tenants, did the person intentionally enter or remain without consent. In other words, is the person a guest?
      1. Did the person intentionally enter or remain in the dwelling of another without the permission of a person lawfully present? For persons who the officer has established probable cause to believe are NOT tenants, the officer must proceed to consider whether there is probable cause to believe the person intentionally entered or remained in the dwelling without the consent of some person lawfully upon the premises.
      2. Or, if no person is lawfully upon the premises, did the person intentionally enter or remain in the dwelling of another without the consent of the owner of the property that includes the dwelling? For persons who the officer has established probable cause to believe are NOT tenants, and when no person is lawfully upon the premises, the officer must proceed to consider whether there is probable cause to believe the person intentionally entered or remained in the dwelling without the consent of the owner of the property that includes the dwelling.
   3. Was the non-consensual entry or remaining on the premises under circumstances that tend to create or provoke a breach of the peace? Criminal trespass under Wis. Stat. §943.14 requires more than non-consensually entering or remaining on the dwelling. The person must enter or remain under circumstances that tend to create or provoke a breach of the peace.
      An example of a circumstance that tends not to create or provoke a breach of the peace is when a person establishes a dwelling as his or her residence and with the permission of tenant or property owner and later remains on the property with the belief that he or she is a tenant. Wisconsin law contains a civil legal process for handling these situations, which landlords typically use. Landlord-tenant situations which are typically peaceably resolved by the civil legal process are not circumstances that tend to create or provoke a breach of the peace.

An example of a circumstance that may tend to create or provoke a breach of the peace is when a person unlawfully enters a vacant dwelling. In this situation, it is reasonable to expect that neighbors or the owner of the property may be concerned. Particularly if the person who entered the vacant dwelling is confronted and refuses to leave, the circumstances would tend to create or provoke a breach of the peace.

Because creating or provoking a breach of the peace is an element of criminal trespass, it is the policy of this department not to arrest persons in landlord-tenant situations when the person did not enter or remain in the dwelling under circumstances that tend to create or provoke a breach of the peace.

6. If an officer is sent to investigate a violation of Wis. Stat. §943.14 (criminal trespass) and, based on his or her investigation, establishes probable cause that the person present (1) is not a tenant, (2) entered a premises or remains on a premises without consent of a tenant or landlord, and (3) that entry or remaining is tending to create or provoke a breach of the peace, the officer shall remove the person from the premises. (6.1.12)
   1. The complainant does not have to be present to make a complaint of trespassing but the removal of the suspect from the premise is based on circumstances that their trespass on the property created a breach of the peace (D/C).  This will require documentation to substantiate this.
   2. The suspect should be made fully aware that the University Police Department has received a complaint of trespassing and are legally bound to remove him/her from the premises. 
   3. University Police Officers should make every effort to verbalize with the suspect to gain compliance in leaving the premises.  Force can be used to remove the suspect, but only after it is determined that the suspect will not leave on his/her own free will.
   4. If the University Police Officer is wearing a body camera.  The University Police Officer should activate the camera to document the incident.
7. After the removal of the suspect from the premises, University Police Officers will exercise officer discretion in deciding if that suspect will be arrested for Wis. Stat. §943.14 or any other State law violation.
   1. The following is a list of considerations and is only provided as a resource to investigating officers.
      1. Will the situation persist or get worse if an arrest is not made?
      2. Is the suspect being cooperative?
      3. What action, if any, does the complainant want?
      4. Is there any likelihood of violence towards the complainant if an arrest is not made?
      5. Is there any likelihood of violence towards the complainant if an arrest is made?
      6. Does the suspect have any previous violations of trespassing?
      7. Does the incident qualify as a domestic abuse incident under Wis. Stat. §968.075?