Does a written trespass notice turn later shoplifting into third-degree burglary in South Carolina?

Official title

Opinion addressing whether a trespass notice can support elements of a charge of burglary in the third degree.

Requester

Requested by Chief Lawrence Wiggins, Allendale Police Department.

Plain-English summary

The chief of the Allendale Police Department asked the South Carolina Attorney General two questions about how a no-trespass warning interacts with the burglary statutes. South Carolina defines third-degree burglary as entering a building without consent and with intent to commit a crime inside (S.C. Code § 16-11-313), and "building" is defined broadly to include any structure, vehicle, watercraft, or aircraft (§ 16-11-310).

The AG gave two answers. First, a written trespass warning issued under § 16-11-620 does not automatically void the "without consent" element of burglary. Instead, the warning can be used as evidence to prove the person entered without the consent of the one in lawful possession. The burglary statute itself defines entering "without consent" to include entering without the lawful possessor's consent, so a prior trespass notice is a way to show that later entry was unauthorized.

Second, the AG agreed that, in the abstract, repeated trespass after notice combined with shoplifting (§ 16-13-110) at the same store by the same person could satisfy both elements of third-degree burglary: entry without consent, and intent to commit a crime inside. But the office stopped short of saying any particular case qualifies. AG opinions cannot find facts, so the opinion tells the chief to consult the circuit solicitor about what charges the specific facts support.

What this means for you

Law enforcement and prosecutors

The opinion treats a documented trespass notice under § 16-11-620 as evidence of the "without consent" element of third-degree burglary, not as an automatic conversion of every later entry into a burglary. Whether a particular pattern of trespass-after-notice plus shoplifting supports a burglary charge is, per the opinion, a fact question for the circuit solicitor rather than something the AG can resolve.

Retailers and property owners

For a business that has barred someone in writing, the opinion explains that the trespass notice can do double duty: it supports a trespass-after-notice charge under § 16-11-620 and can also help prove the "without consent" element if the person returns to steal. The opinion does not promise a burglary charge will follow; it identifies what the statutes allow and leaves the charging decision to the solicitor.

Anyone given a trespass warning

The opinion describes how entering a store after a written trespass warning, with intent to steal, can expose a person to more than a trespass charge. Because third-degree burglary is a far more serious offense, the practical stakes of ignoring a written ban are higher than a simple trespass fine.

Common questions

Does getting a trespass notice mean I commit burglary every time I go back?
No. The opinion says the notice does not by itself void consent or make every return a burglary. It can be used as evidence that you entered without consent, but burglary also requires intent to commit a crime inside, and whether the facts add up is for the solicitor to decide.

What makes third-degree burglary different from trespassing?
Trespass after notice under § 16-11-620 is a misdemeanor punishable by a fine of up to $200 or up to 30 days. Third-degree burglary under § 16-11-313 requires entering a building without consent and with intent to commit a crime inside, and it is treated as a far more serious offense.

Can shoplifting plus a trespass ban become burglary?
The AG says it could in the abstract: the trespass shows entry without consent and the theft shows intent to commit a crime inside. But the office will not say a specific situation qualifies, and it directs the requester to the circuit solicitor for a charging decision based on the actual facts.

Background and statutory framework

The opinion works through three statutes. Section 16-11-313 defines third-degree burglary as entering a building without consent and with intent to commit a crime therein. Section 16-11-310 supplies the definitions: "building" includes any structure, vehicle, watercraft, or aircraft, and "enters a building without consent" means entering without the lawful possessor's consent, or entering by deception or trick to gain consent. Section 16-11-620 is the trespass-after-notice statute; it makes it a crime, punishable by a fine of up to $200 or imprisonment up to 30 days, to enter or remain on another's premises after being warned not to. Section 16-13-110 is the shoplifting statute.

The AG's analysis is that a trespass notice is evidence, not an automatic element-killer. Because the burglary statute defines "without consent" by reference to the lawful possessor's consent, a documented prior warning is a way to prove the later entry was unauthorized. On the second question, the opinion declines to apply the law to specific facts, citing the office's standard limit that it cannot make factual findings in an opinion, and refers the matter to the circuit solicitor.

Citations

Statutes:

• S.C. Code § 16-11-313 (third-degree burglary)
• S.C. Code § 16-11-310 and § 16-11-310(3) (definitions of "building" and "enters a building without consent")
• S.C. Code § 16-11-620 (trespass after notice)
• S.C. Code § 16-13-110 (shoplifting)

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/opinion-addressing-whether-a-trespass-notice-can-support-elements-of-a-charge-of-burglary-in-the-third-degree/
• Original PDF: https://www.scag.gov/media/o5xbvkvf/wigginsl-os-10979-final-opinion-12-16-2024.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

ALAN WILSON
ATTORNEY GENERAL

December 16, 2024

Chief Lawrence Wiggins
Allendale Police Department
137 Pleasant Street East
Allendale, SC 29810

Dear Chief Wiggins:

Attorney General Alan Wilson has referred your letter to the Opinions section. Your letter
requests an opinion addressing the following:

I am writing to your office to formally request an opinion on the issue of trespass
and burglary in the third degree. Under S.C. Code § 16-11-313 Burglary in the third
degree: A person is guilty of burglary in the third degree if “(A) A person is guilty
of burglary in the third degree if the person enters a building without consent and
with intent to commit a crime therein.” Furthermore, the statutory definition of
building in 16-11-310 defines building as “‘Building’ means any structure, vehicle,
watercraft, or aircraft.”

Within this statutory framework, I pose the following questions:

1. Does a written trespass warning/notice under S.C. Code § 16-11-620 void the
   consent needed to lawfully gain access to a “building” under S.C. Code § 16-11-
   313?

2. Can the repeated acts of trespass after notice under S.C. Code § 16-11-620 and
   shoplifting under 8.C. Code § 16-13-110 at the same establishment, by the same
   person, rise to burglary in the third degree if the actor’s sole intent, as evidenced by
   his actions, are to enter the establishment and steal?

Law/Analysis

It is this Office’s opinion that a written trespass warning issued according to S.C. Code §
16-11-620 does not void the element of burglary in the third degree for “enter[ing] a building
without consent” in S8.C, Code § 16-11-313, but it may instead be used to demonstrate lack of
consent. Section 16-11-620 provides a criminal penalty for

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Chief Lawrence Wiggins
Page 2
December 16, 2024

Any person who, without legal cause or good excuse, enters into the dwelling
house, place of business, or on the premises of another person after having been
warned not to do so or any person who, having entered into the dwelling house,
place of business, or on the premises of another person without having been warned
fails and refuses, without good cause or good excuse, to leave immediately upon
being ordered or requested to do so by the person in possession or his agent or
representative shall, on conviction, be fined not more than two hundred dollars or
be imprisoned for not more than thirty days.

(emphasis added). Under the burglary statutes codified in Title 16, Chapter 11, Article 5, “enters
a building without consent” is statutorily defined to mean:

(a) To enter a building without the consent of the person in lawful possession; or
(b) To enter a building by using deception, artifice, trick, or misrepresentation to
gain consent to enter from the person in lawful possession.

S.C. Code § 16-11-310(3). Ifa person is given a trespass warning prior to his later entry of the
noticed premises, the written trespass warning may be used to prove that the person entered the
building without consent.

Next, you ask whether repeated acts of trespassing after notice, S.C. Code § 16-11-620,
and shoplifting, S.C. Code § 16-13-110, at the same establishment by the same person can support
a charge of burglary in the third degree. S.C. Code § 16-11-313. As noted in your letter, burglary
in the third degree occurs when a “person enters a building without consent and with intent to
commit a crime therein.” Id. In the abstract, the combination of the trespass and shoplifting could
satisfy both elements of entering a building without consent as well as demonstrating intent to
commit a crime therein. However, this Office cannot find facts in an opinion, and we strongly
encourage consulting with your circuit solicitor to evaluate what charges may be warranted.

Sincerely,

Matthew Houck
Assistant Attorney General

REVIEWED AND APPROVED BY:

Robert D. Cook
Solicitor General