Does posting 'no trespassing' signs on an Arkansas driveway make it criminal trespass for a door-to-door salesperson to drive up to the house?

Plain-English summary

State Representative Ron McNair asked the AG a practical question that comes up often in Arkansas: if a landowner has posted "no trespassing" signs under Ark. Code Ann. § 18-11-405(1)(A)-(B), does a salesperson commit a crime by driving up the driveway to pitch a product?

AG Leslie Rutledge gave a two-part answer:

1. The "posted land" statute, § 18-11-403, was not violated. That statute only addresses entry "for recreational purposes," defined in § 18-11-402 as hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites. Soliciting a sale was not recreational.
2. The general criminal trespass statute, § 5-39-203, was also probably not violated on the bare facts described. Criminal trespass requires entering "unlawfully," meaning entering without a license or privilege. The Arkansas Court of Appeals had held in Burdyshaw v. State and Lancaster v. State that driveways are exactly the place where "we have come to expect various members of the public to enter." Posting under § 18-11-405 did not, by itself, eliminate that implied license, because that posting statute is keyed to the recreational-use scheme, not to broader entry.

For the second question (about all other "non-recreational, non-emergency" entries), the AG declined to give a one-size-fits-all answer. The criminal trespass analysis turns on whether the entrant has a license or privilege under the specific facts. Some non-recreational entries onto posted land are unlawful (a salesperson who refuses to leave after the homeowner says no, or who ignores explicit consent revocation, would be in different territory); others (the UPS driver, the mail carrier, the kid selling Girl Scout cookies) clearly are not. The AG could not draw the line without specific facts.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The two statutory schemes

Arkansas has two distinct statutory schemes that bear on entering someone else's land:

• Criminal trespass, Ark. Code Ann. § 5-39-203 (Repl. 2013). A person commits criminal trespass if he "purposefully enters or remains unlawfully in or upon . . . the premises of another person." "Enter or remain unlawfully" is defined in § 5-39-101(2)(A) as entering or remaining when "not licensed or privileged" to do so. This is a general criminal statute, not tied to recreation.
• Posted-land statute, Ark. Code Ann. §§ 18-11-401 to -406. This subchapter addresses how a landowner can warn off recreational users (hunters, hikers, ATV riders, etc.). Section 18-11-403(a)(1) makes it a violation to enter posted land "for recreational purposes." Section 18-11-405(1)(A)-(B) sets out the form requirements for proper posting (sign size, color, lettering, placement).

The two schemes work together, but they do not overlap completely. Posting can be a piece of evidence in a criminal-trespass case, but posting does not automatically convert every entry into criminal trespass.

Why driveways are different

The implied license to approach a house's front door is a long-standing common-law doctrine. The Arkansas Court of Appeals adopted it in the Fourth Amendment context in Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000), and Lancaster v. State, 81 Ark. App. 427, 105 S.W.3d 365 (2003): driveways are places where members of the public are reasonably expected to enter. Salespeople, religious canvassers, neighbors borrowing eggs, kids selling fundraiser candy, delivery drivers, and many others use that implied license every day.

The AG emphasized that this expectation persists even with a "no trespassing" sign present. Burdyshaw and Lancaster both involved that fact pattern in Fourth Amendment cases. The AG cited those Fourth Amendment cases not because the search-and-seizure rule directly controls criminal trespass, but because they illustrate how driveways are perceived by the public and how that perception cuts against an automatic finding of "unlawful" entry.

Why § 18-11-403's "recreational purposes" anchor matters

Section 18-11-402 lists what counts as recreational: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing historical, archaeological, scenic, or scientific sites. A door-to-door salesperson is not doing any of those things. The salesperson is conducting commerce, not recreation. § 18-11-403 is therefore inapplicable.

The AG dug into a potential textual ambiguity. Subsection 18-11-403(a)(2) does say "[i]t shall be unlawful for any person to enter upon any real property posted under the provisions of this subchapter without the written consent of the owner or lessee of the real property." Read in isolation, that subsection could be read more broadly. But under the canon that statutes are read as a whole (citing Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999)), the AG read § 18-11-403(a)(2) in light of (a)(1)'s "for recreational purposes" anchor. The legislative history (Acts 1989 No. 35, Acts 1997 No. 806, Acts 1999 No. 1029) and the treatise discussion (Howard W. Brill, Arkansas Law of Damages § 30-7, 6th ed. 2014) confirm the recreational-focused scope.

The criminal trespass piece

The AG read the question narrowly: a salesperson driving onto a properly posted driveway, intending to solicit. Under the implied-license doctrine, the salesperson had license to do so, and the posting did not negate it (because the posting is keyed to recreational entry). So criminal trespass did not occur on these facts.

The AG was careful to limit this to the facts as described. A salesperson who pushed past a closed gate, ignored a homeowner's express revocation of consent, entered after dark in unusual circumstances, or did anything else inconsistent with the customary implied license would put themselves into a different analysis. The AG did not address those scenarios.

Common questions

Q: Can I keep door-to-door salespeople off my property by posting 'no trespassing' signs?
A: Posting under § 18-11-405 does not by itself accomplish that. That statute keys to recreational entry, not commerce. Telling the salesperson directly to leave (revoking the implied license), or installing a closed gate or fence, gives the homeowner stronger protection.

Q: Is a posted 'no trespassing' sign useless against non-recreational entrants?
A: Not useless. It can be evidence of the homeowner's intent to revoke any implied license, which could matter under criminal trespass once the entrant has reason to know the homeowner has objected to the entry. But a single sign on a driveway, against the backdrop of broad implied license for driveways, is not automatically enough to convert a salesperson's visit into criminal trespass.

Q: What about hunters who walk onto posted land?
A: That is the classic § 18-11-403 scenario and the statute applies. Hunting is recreational; the posting follows the statutory format; entry without written permission is a violation.

Q: Can I have a salesperson arrested for ignoring my 'no trespassing' sign?
A: The AG declined to answer that broader question in the abstract. The facts matter. A salesperson who refuses to leave after being explicitly told to do so is on different ground than one who simply pulls into a driveway with the sign at the entrance.

Q: What's the relationship between this and the Fourth Amendment 'knock and talk' cases?
A: The Fourth Amendment cases the AG cited (Burdyshaw, Lancaster) deal with whether police entry onto a driveway is a "search." The same implied-license reasoning underlies both contexts.

Citations and references

Statutes:

• Ark. Code Ann. § 5-39-101(2)(A) (Repl. 2013), definition of "enter or remain unlawfully"
• Ark. Code Ann. § 5-39-203(a)(2) (Repl. 2013), criminal trespass
• Ark. Code Ann. §§ 18-11-401 to -406, posted land subchapter
• Ark. Code Ann. § 18-11-402, "recreational purposes" definition
• Ark. Code Ann. § 18-11-403, entry on posted land for recreational purposes prohibited
• Ark. Code Ann. § 18-11-405(1)(A)-(B), posting form requirements

Cases:

• Burdyshaw v. State, 69 Ark. App. 243, 10 S.W.3d 918 (2000) (Ark. Ct. App.)
• Lancaster v. State, 81 Ark. App. 427, 105 S.W.3d 365 (2003) (Ark. Ct. App.)
• Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999) (Ark. Sup. Ct.)
• MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005) (Ark. Sup. Ct.)

Secondary sources:

• Howard W. Brill, Arkansas Law of Damages § 30-7 (6th ed. 2014)
• Tonia Jones, Property, in Survey of Legislation: 1989 Arkansas General Assembly, 12 U. Ark. Little Rock L.J. 593, 663-664 (1989)

Legislative history:

• Acts 1989, No. 35, § 1
• Acts 1997, No. 806, § 1
• Acts 1999, No. 1029, § 8

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-011
June 22, 2016

The Honorable Ron McNair
State Representative
407 Cemetery Road
Alpena, AR 72611-2953

Dear Representative McNair:

You have requested my opinion on several statutes that address trespass and unlawful entry on another person's property. Your questions focus on Ark. Code Ann. § 5-39-203 (criminal trespass) and §§ 18-11-403 and -405 (posted land). You ask in this regard:

1. Pertaining to Ark. Code Ann. § 5-39-203 and § 18-11-403, is a person in violation of either of these statutes if they enter a driveway that has been properly posted according to § 18-11-405(1)(A)-(B) with the purpose to solicit the sale of a product to the property owner?

2. Is a person in violation of either of these two statutes if they, without permission, enter land properly posted according to § 18-11-405(1)(A)-(B) for any other reason excluding an emergency situation where someone's life is in danger?

RESPONSE

In my opinion, there is certainly no violation of Ark. Code Ann. § 18-11-403 under the circumstances posited in your first question. Ark. Code Ann. § 18-11-403 only prohibits entry on to some property "for recreational purposes." Soliciting a sale of a product is not recreational.

In my opinion, without additional facts beyond what you provide in your first question, it does not appear that Ark. Code Ann. § 5-39-203 is violated. In this regard, it is important to note that Ark. Code Ann. § 18-11-405(1)(A)-(B) (the posting law) does not, under the circumstances described, necessarily have any bearing on the legal question whether the person has violated Ark. Code Ann. § 5-39-203 (the criminal trespass law).

With regard to your second question, as a general matter, there are multiple reasons that a person could enter upon posted land that would not be in violation of either Ark. Code Ann. § 5-39-203 or Ark. Code Ann. § 18-11-405(1)(A)-(B). There are also numerous situations in which a person's entry upon such land would be in violation of one or both statutes. Without any specific factual predicate to your question, I cannot opine further.

DISCUSSION

Question 1: Pertaining to Ark. Code Ann. § 5-39-203 and § 18-11-403, is a person in violation of either of these statutes if they enter a driveway that has been properly posted according to § 18-11-405(1)(A)-(B), with the purpose to solicit the sale of a product to the property owner?

Criminal trespass is prohibited by Ark. Code Ann. § 5-39-203. Criminal trespass is the act of "purposefully enter[ing] or remain[ing] unlawfully in or upon . . . the premises of another person." To "enter or remain unlawfully" is defined as the act of "enter[ing] or remain[ing] in or upon premises when not licensed or privileged to enter or remain in or upon the premises."

It is clear that, if a person's property is not posted with trespassing signs, the mere entering of that person's driveway to solicit the sale of a product would not constitute criminal trespass. A person's expectation of privacy in a driveway in which "we have come to expect various members of the public to enter" is not considered reasonable. In the same regard, "we have come to expect various members of the public to enter upon such a driveway . . . ." This is true even if a person has posted a "no trespassing" sign.

Your question appears to acknowledge that, as a general matter, a person has a license or privilege to enter a driveway for the purpose of soliciting the sale of goods. Your question implies, however, that once property is posted pursuant to Ark. Code Ann. § 18-11-405(1)(A)-(B), any license or privilege to enter the property is negated, thus triggering the criminal trespass statute when someone enters the posted land. But the mere fact that land is posted pursuant to Ark. Code Ann. § 18-11-405(1)(A)-(B) does not, in and of itself, correlate to whether a person has a license or privilege to enter land in order to solicit the sale of products. This is because soliciting the sale of products does not qualify as recreating, as defined within and prohibited under the posting laws. Therefore, the license or privilege to enter posted land is unaffected by posting pursuant to § 18-11-405(1)(A)-(B) when a person enters for a non-recreational purpose, such as soliciting the sale of products.

The second statute you mention, Ark. Code Ann. § 18-11-403, prohibits a person from entering upon properly posted real property "for recreational purposes." But the act of entering a driveway for the purpose of soliciting the sale of a product to the property owner is not done for a recreational purpose. The posting law, read as a whole, is meant to prevent a person from recreating on someone's posted property. It is not meant to prevent driving onto a property owner's driveway to try to sell him something. And it does not apply to such circumstances.

A cursory reading of section 18-11-403(a) might lead a reader to suspect that the statute is not limited to the recreational context. Section 18-11-403(a)(1) states that "[n]o person shall enter for recreational purposes upon real property posted pursuant to this subchapter without written permission of the owner or lessee of the real property." Section 18-11-403(a)(2) then states that "[i]t shall be unlawful for any person to enter upon any real property posted under the provisions of this subchapter without the written consent of the owner or lessee of the real property." The latter subsection, standing alone, might suggest a broader application. But a broader application is far from clear, given the specific reference to and definition of "recreational purposes." In the context of the statute as a whole, the more narrow meaning (limited to recreational purposes) is proper. Moreover, even if the statute is arguably ambiguous as to its scope, the statute's purpose and history make clear my interpretation is the correct one. In this case, it is clear from the statute's subject matter and its legislative history that the focus is on preventing other people from recreating on a person's properly-posted property.

For purposes of the posting law, Ark. Code Ann. § 18-11-402 defines "recreational purposes" as including "hunting; fishing; trapping; swimming; boating; camping; picnicking; hiking; pleasure driving; nature study; water skiing; winter sports; and viewing or enjoying historical, archaeological, scenic, or scientific sites." The act of entering a driveway would not, standing alone, fall within these activities.

Question 2: Is a person in violation of either of these two statutes if they, without permission, enter land properly posted according to § 18-11-405(1)(A)-(B) for any other reason excluding an emergency situation where someone's life is in danger?

I am unable to practically respond to your second question as posed. As explained above, posting pursuant to section 18-11-405(1)(A)-(B) does not automatically implicate Ark. Code Ann. § 5-39-203 (the criminal trespass law). And Ark. Code Ann. § 18-11-403 only applies to entry upon posted property for "recreational purposes," as defined in section 18-11-402.

Therefore, without additional facts, I cannot ascertain whether a person will necessarily have violated either statute when entering properly posted land for some non-emergency reason. There are likely to be numerous situations where one or both statutes are violated by certain entries. But there are likely to be numerous situations where neither statute is violated by other entries. Answering such a question calls for speculation and is consequently outside the scope of an opinion from this office.

Sincerely,

LESLIE RUTLEDGE
Attorney General