22-35-6. Entering or refusing to leave property after notice--Misdemeanor.
Any person who, knowing that he or she is not privileged to do so, enters or remains in any place where notice against trespass is given by:
(1) Actual communication to the person who subsequently commits the trespass;
(2) Posting in a manner reasonably likely to come to the attention of trespassers; or
(3) Fencing or other enclosure which a reasonable person would recognize as being designed to exclude trespassers;
is guilty of a Class 2 misdemeanor. However, if such trespasser defies an order to leave, personally communicated to him or her by the owner of the premises or by any other authorized person, the trespasser is guilty of criminal trespass, which is a Class 1 misdemeanor.
Source: SL 1976, ch 158, § 35-2; SL 1977, ch 189, § 71; SL 2005, ch 120, § 290.
Notes of Decisions
Cited in
7
cases (
1 in the last 5 years), 1990–2023 · leading case:
Benson v. State, 2006 SD 8 (S.D. 2006).
Benson v. State, 2006 SD 8 (S.D. 2006).
· cites it 2× “Plaintiffs also retain the right to protect their property through Trespass both as a civil tort, and as a misdemeanor, SDCL 22-35-6. Injunction is available in appropriate cases.”
State v. Bowers, 498 N.W.2d 202 (S.D. 1993).
· cites it 6× “The arrested protestors were charged with one count of unlawful occupancy of property in violation of SDCL 22-35-6 [2] and one count of disorderly assembly in violation of Rev.”
Young v. Harrison, 284 F.3d 863 (8th Cir. 2002).
“When it is clear to an officer that the person is a "transient guest" (has resided less than four consecutive weeks in the same residency) the officer can ask the tenant to leave or face being arrested for unlawful occupancy under SDCL 22-35-6 or trespassing under Rapid City…”
Christensen v. Quinn, 45 F. Supp. 3d 1043 (D.S.D. 2014).
“Christensen’s complaint is captioned as "Negligence per se^—Criminal Trespass in vio-Tation of SDCL 22-35-6.” Docket 133 at 28. But in his briefs opposing the motions for summary judgment, Christensen labels Count VI as "Civil Trespass,” cites to case law regarding a civil…”
In re T.K., 462 N.W.2d 893 (S.D. 1990).
· cites it 2× “had violated SDCL 22-35-6, by entering or refusing to leave property after notice (trespass).”
Steve W. Young v. Anthony Harrison, 284 F.3d 863 (8th Cir. 2002).
“When it is clear to an officer that the person is a “transient guest” (has resided less than four consecutive weeks in the same residency) the officer can ask the tenant to leave or face being arrested for unlawful occupancy under SDCL 22-35-6 or trespassing under Rapid City…”
Gomez v. Officer Reiter (D.S.D. 2023).
· cites it 2× “SDCL § 22-35-6. The officers were privileged to enter the property to investigate the report that Gomez was violating a no-contact order.”
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