Fast Facts on Trespassing
- Trespass Law Covers: Buildings, Dwellings, Land, Vehicles
- Crime Class: Misdemeanor
- Fencing Required?: Only on land in lieu of verbal notice or posted signage.
- Signage Required?: Only on land in lieu of verbal notice or fencing.
- Verbal Notice Required?: Only on land in lieu of fencing or posted signage.
South Dakota Trespassing Law Overview
- South Dakota’s trespassing laws are few, and typically short on extraneous detail.
- All trespassing in South Dakota carries a misdemeanor charge.
- Trespass on land requires that the person trespassing be “notified” by verbal warning, posted sign or a fence or other barrier designed to exclude intruders.
- South Dakota has trespass laws covering use of drones.
- South Dakota also has a “Peeping Tom” law.
Relevant South Dakota State Statutes
- 22-1-2 Definition of terms
- 22-21-1 Trespassing to eavesdrop, Installation or use of unauthorized eavesdropping device, Drones
- 22-21-3 Window peeking on private property of another, Violation as misdemeanor
- 22-35-5 Entering or remaining in building, Misdemeanor
- 22-35-6 Entering or refusing to leave property after notice, Misdemeanor
- 22-35-7 Affirmative defenses to unlawful occupancy
- 22-35-8 Defiance of emergency management order restricting area, Misdemeanor
Normally we would start our investigation of a state’s trespassing statutes with the definitions, but South Dakota omits a dedicated section on definitions for a general set at the start of Title 22: Crimes. Naturally, this makes it an extremely lengthy section so I have included only the most relevant definitions for the rest of the section below:
22-1-2. Definition of terms.
Terms used in this title mean:
(33) “Private place,” a place where one may reasonably expect to be safe from casual or hostile intrusion or surveillance, but does not include a place to which the public or a substantial group thereof has access;
(35) “Property,” anything of value, including, but not limited to, motor vehicles, real estate, tangible and intangible personal property, contract rights, choses-in-action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, electric or other power, services, and signatures which purport to create, maintain, or extinguish any legal obligation;
(36) “Property of another,” property in which any person other than the actor has an interest upon which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of an actor may not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security agreement;
(49) “Structure,” any house, building, outbuilding, motor vehicle, watercraft, aircraft, railroad car, trailer, tent, or other edifice, vehicle or shelter, or any portion thereof;
(51) “Unoccupied structure,” any structure which is not an occupied structure;
Of particular interest is the definitions of “property” and “structure”; property includes motor vehicles and real estate specifically in the definition, meaning land is definitely included, as are all kinds of cars, trucks, and other motorized conveyances.
Keep that in mind as we peruse the rest of the section. “Structure” also specifically includes in its definition any motor vehicle.
Next, section 22-21-1 which covers trespassing to eavesdrop and drone usage. Pay attention here if you make use of these gadgets:
22-21-1. Trespassing to eavesdrop–Installation or use of unauthorized eavesdropping device–Drones.
Any person who, except as authorized by law:
(1) Trespasses on property with intent to subject anyone to eavesdropping or other surveillance in a private place;
(2) Installs in any private place, without the consent of the person or persons entitled to privacy there, any device for observing, photographing, recording, amplifying, or broadcasting sounds or events in such place, or uses any such unauthorized installation;
(3) Intentionally uses a drone to photograph, record, or otherwise observe another person in a private place where the person has a reasonable expectation of privacy; or
(4) Lands a drone on the lands or waters of another resident provided the resident owns the land beneath the water body in its entirety without the owner’s consent, except in the case of forced landing and the owner or lessee of the drone will be liable for any damage resulting from a forced landing;
is guilty of a Class 1 misdemeanor. Subdivisions (2) and (3) do not apply to law enforcement officers, or to those acting under the direction of a law enforcement officer, while engaged in the performance of the officer’s lawful duties. These restrictions do not apply to a drone operator operating a drone for commercial or agricultural purposes pursuant to or in compliance with federal aviation administration regulations, authorizations, and exemptions nor do they apply to an emergency management worker operating a drone within the scope of the worker’s duties.
Not much else to say; operating any drone which can make use of optical or auditory sensors or recording devices in proximity to a person in a “private place” as defined above can get you tagged with a misdemeanor. Note that (3) specifically mentions photographs and recordings!
The trespassing via invasion of privacy does not end there. Next up is SD’s short and simple Peeping Tom law:
22-21-3. Window peeking on private property of another, Violation as misdemeanor.
No person may enter the private property of another and peek in the door or window of any inhabited building or structure located thereon, without having lawful purpose with the owner or occupant thereof. A violation of this section is a Class 1 misdemeanor.
Again, nothing more to say. South Dakota is not very long-winded when it comes to laws! If you peek through any door or window of a person’s private property without having any lawful purpose with the owner or occupant you are committing a misdemeanor.
Now we get into trespassing properly with 22-35-5 which covers entering or remaining in a building. Don’t get too comfy! This is another short one:
22-35-5. Entering or remaining in building, Misdemeanor
Any person who, knowing that he or she is not privileged to do so, enters or remains in any building or structure surreptitiously, is guilty of criminal trespass. Criminal trespass is a Class 1 misdemeanor.
Simply stated, if you enter or remain in any building you know you are not supposed to be in you are guilty of criminal trespass, a misdemeanor.
We continue our tour of trespassing in all its forms in the next section:
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.
Distinct from the previous section, entering any property in defiance of a notice to leave or stay out is a crime. In this case, “notice” is given by any posted sign which is reasonably likely to come to the attention of intruders, a fence or other barrier designed to exclude intruders or by a specific verbal instruction. Violating this statute will get you a misdemeanor charge.
Lastly, defying any emergency management order issued by the state and entering or remaining in a restricted area is also trespassing:
22-35-8. Defiance of emergency management order restricting area, Misdemeanor.
If a person defies an order issued pursuant to chapter 34-48A not to enter an area defined in that chapter and a notice not to enter is posted, the person is guilty of criminal trespass. A violation of this section is a Class 1 misdemeanor.
There are affirmative defenses to the charge of unlawful occupancy in the state of South Dakota, and they are spelled out in 22-35-7. Keep in mind that any affirmative defense must be used in court- you will never avoid arrest and prosecution using these:
22-35-7. Affirmative defenses to unlawful occupancy.
It is an affirmative defense to prosecution under § 22-35-5 or 22-35-6 that:
(1) The premises were at the time open to members of the public and the person complied with all lawful conditions imposed concerning access to or the privilege of remaining on the premises; or
(2) The person reasonably believed that the owner of the premises, or other person permitted to license access to the premises, would have permitted him or her to enter or remain.
South Dakota has only the bare minimum of trespassing laws, and relies on the usual definitions and mostly plain language to codify them, making a full understanding of the laws simple.
You should keep in mind that South Dakota does have some fairly stringent laws on drone operations near places where a person would have a reasonable expectation of privacy, but assuming you do not accidentally record images or video of anyone you should be okay.
Tom Marlowe practically grew up with a gun in his hand, and has held all kinds of jobs in the gun industry: range safety, sales, instruction and consulting, Tom has the experience to help civilian shooters figure out what will work best for them.