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In a jurisdiction in which trespassing can be a crime, can a property owner detain a person discovered trespassing on the property?

Example: A landowner discovers an unknown person standing on his fenced land. He orders the trespasser to stop. The trespasser, showing no immediate threat to the owner or property, says, "I'm leaving." The landowner says, "No, I'm calling police and you're staying until they get here."

Is the landowner allowed to threaten or use force to detain the trespasser until police arrive?

The landowner's reasonable concern is that prior to discovery the trespasser committed some tortious or criminal act upon the property, and the owner does not want to let the suspect escape until he can investigate. He also wants to have the trespasser identified and documented by law enforcement so that any future trespass by the same person can be prosecuted (as "defiant trespass").

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    You'd have to look to the jurisdiction's laws on citizen's arrest. It isn't necessarily available for all crimes, so you'd have to see whether trespassing met the criteria in that jurisdiction. Aug 2, 2021 at 20:13
  • @NateEldredge It would be informative if this scenario is describing a citizen's arrest, but it's not obvious to me that is the case: IIRC, in general a citizen's arrest can be effected by anyone, but only for felonies. AFAIK criminal trespass is never a felony, but in this scenario the landowner is not a general person but particularly a possible victim of crimes or torts committed by the trespasser.
    – feetwet
    Aug 2, 2021 at 20:22
  • A common rule (e.g. California) is that a citizen's arrest may be made for misdemeanors if committed in the presence of the arresting person, or for felonies regardless. So if your jurisdiction has this rule, and trespassing is a misdemeanor, the landowner (or anyone else present) could arrest the trespasser. But this is why the jurisdictional and statutory details are important. Aug 2, 2021 at 21:31
  • I don't know of any jurisdiction which provides special arrest rights to the victim of a crime, with the possible exception of the shopkeeper's privilege. Nor any which provides any sort of arrest power whatsoever in case of torts or other civil wrongs. Aug 2, 2021 at 21:32

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Jurisdiction? . RCW 9A.16.020 says when force is lawful.

(1) Whenever necessarily used by ...a person assisting the officer and acting under the officer's direction

Not apparently applicable in this case.

(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody

Looks promising, except RCW 9A.52.070 says "(2) Criminal trespass in the first degree is a gross misdemeanor". For the record,

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary

but you didn't describe malicious trespass (which incidentally is not statutorily defined in Washington). Our last hope is:

(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public

For example, you can detain a person for a few seconds to ask what he's doing there and to get whatever answer you are going to get. It does not extend to "detain the trespasser until you are satisfied that he has truthfully identified himself", or "until the police show up".

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  • That paragraph 3 is curious, and not just because "malicious trespass" is undefined: "Attempting to prevent ... malicious interference with real or personal property...." I wonder if detention for documentation by authorities in order to deter subsequent defiant trespass is a legitimate "attempt to prevent malicious interference." Likewise with paragraph 4: If the person does not offer a reasonable or believable explanation for the trespass, I wonder what a "reasonable duration and manner" would be to investigate it.
    – feetwet
    Aug 2, 2021 at 20:28

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