HYPOTHETICAL BASED ON REAL EVENTS
One day in January, police officers responded to a house in Pierce County for a domestic disturbance and possible no contact order violation. It was reported that the Defendant – Jack – was living with his sister – Jill. Deputies subsequently arrived at the aforementioned address and interviewed both Jack and Jill. Although no evidence of a fight was uncovered and no assault was subsequently charged, it was quickly discovered that Jack was prohibited from having contact with his sister per a pre-trial domestic violence no contact order. Jill did not want a no contact order against Jack, but the court had imposed one anyway because Jill had previously called 9-1-1 on Jack making allegations that were later held to be unfounded.
Jill was homeless, and had asked her brother Jack if she could stay with him “for a while” just two weeks prior to his arrest. Jack knew about the no contact order and that it was illegal for him to be within 500 feet of Jill, her place of employment, or her “residence” – but, he felt his duty as a brother necessitated he provide Jill with shelter. He never put Jill on the lease, never gave her a key, and Jill never paid any rent.
When Jack was arrested following the officers’ discovery that he was prohibited from being within 500 feet of Jill, he expected to be charged with violation of a no contact order – a gross misdemeanor with a maximum sentence of 364 days in jail and a $5,000 fine. Instead, prosecutors charged him with residential burglary, a Class B Felony with a maximum sentence of 10 years in jail and a $20,000 fine.
At common law, burglary was defined as:
the trespassory breaking and entering of the dwelling of another at night with an intent to commit a felony therein.
This definition was absurdly narrow for modern times and was subsequently eroded over the ages. Residential Burglary today is found when a defendant “with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling other than a vehicle.” However, this definition is absurdly too broad in the outcomes it creates.
For example, suppose Herfy steals a liquor bottle from Wal-Mart, gets caught, and subsequently is trespassed from all Wal-Mart stores and properties for life. (This is standard Wal-Mart procedure). A few years later, he goes to a different Wal-Mart store and steals a pack of gum. He now gets charged with Second Degree Burglary because he unlawfully entered a building with the intent to commit a crime. See RCW 9A.52.030. The theory being that it was unlawful for him to be there because he was banished from all Wal- Marts. So long as the State can prove that he entered the store with the intent of committing any crime there-in, they can sentence Herfy to up to ten years for that little pack of chewing-gum.
In Jack and Jill’s case, because No Contact Orders don’t define “residence” and because Jill was homeless – thereby making any place she spends the night her “residence” no matter how transitory that experience is – the State feels justified in bringing residential burglary charges against Jack.
Anyone currently saddled with an involuntary No Contact Order (the vast majority of domestic violence no contact orders are imposed over the alleged victims objection) needs to be aware that cohabitation with the prohibited party is not only illegal, it is a Class B felony.
Unfortunately, few – if any – persons prohibited from having contact with someone are aware that this is the law, and until courts start printing more explicit No Contact Orders, more defense attorneys should be encouraged to file motions on behalf of clients facing burglary charges like this. One interesting argument is that charging people with residential burglary under facts similar to those facing Jack is a violation of Jack’s right to due process.
Due process requires that criminal statutes be properly worded so that they give fair warning of the type of conduct they purport to criminalize. State v. Wilson, 117 Wn.App. 1, 12, 75 P.3d 573, 578 (2003). Although due process requirements primarily extend to the proper wording of statutes, other regulations or statutes may require specific notice be provided on court orders. Id. Where such statutory notice is required but not given, a due process violation may occur. Id. The Court requires that all protection orders “shall include, in a conspicuous location, notice of the criminal penalties resulting from violation of the order.” State v. Dejarlais, 136 Wn.2d 939, 943 969 P.2d 90, 92 (1998); see also RCW 26.50.035(c).
Generally, No Contact Order forms warn the prohibited party that:
Violation of the provisions of this order with actual notice of its terms is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest; any assault, drive-by-shooting, or reckless endangerment that is a violation of this order is a felony.
Nowhere is notice ever given on a standard No Contact Order form that cohabitation with the protected party constitutes residential burglary and is a felony. Applying the maxim of expressio unius est exclusion alterius, a defendant could not reasonably be put on notice that residential burglary is among the possible criminal penalties resulting from violation of the standard No Contact Order.
Often times, No Contact Orders include “Additional Warnings to Defendant” which read: “Willful violation of this order is punishable under RCW 26.50.110.” Had Jack read this statute he would have known that willful violation of the order is a gross misdemeanor. See RCW 26.50.110(1)(a). He would have known that assaults or conduct that is “reckless and creates a substantial risk of death or serious physical injury to another person” is punishable as a class C felony. See RCW 26.50.110(4). He would have known that a violation of the NCO can be a class C felony if she had previously been convicted of violating the restrain provision twice before. See RCW 26.50.110(5). But he never would have known that allowing his homeless sister to live with him would transform his lawful residence into hers, and make any subsequent entry into his own home a residential burglary.