Trespassory Taking

Trespassory Taking

Trespass is the element of larceny that causes the most trouble, because it cannot be decided by looking at the defendant alone. Caption and asportation ask what the defendant did to the property, and intent asks what the defendant meant to do with it, but trespass asks about the person who held the property and whether that person agreed to the defendant's taking it. The rule is that the taking must be trespassory, meaning the defendant takes the property without the consent of the person who has custody or possession of it.¹ Put another way, a taking is trespassory when the defendant takes possession of the property without the possessor's consent or other lawful justification.² The word has nothing to do with walking onto someone's land. It refers to interfering with another person's hold on personal property without that person's permission.

The element has this shape because larceny punishes the invasion of another person's right to hold property, and each half of the rule answers a different way that invasion can fail to occur. Consent removes the invasion, since an owner or possessor who agrees to the taking has not been deprived of anything against that person's will. Lawful possession removes it as well, because a defendant who already holds the property with the possessor's blessing takes nothing from anyone when later deciding to keep it. The history of the offense confirms the point. In People v. Williams the California Supreme Court explained that English judges, troubled by the severity of the punishment for theft, narrowed larceny so that a lawful possessor who misappropriated another's property, and a person who acquired title by fraud, committed no larceny, because neither had taken the property by trespass and both were viewed as less likely to produce violence.³ Parliament later filled those gaps with the separate offenses of embezzlement and false pretenses, which is why the trespass element is the reason the common law has several theft crimes instead of one.⁴

Because the element turns on possession and consent, the analysis runs in a fixed order, and the sections below follow it. The first question is consent: did the person holding the property agree to the defendant's taking it? Consent can be defeated by how it was obtained, since the reasoning behind larceny by trick is that fraud vitiates the owner's consent, a point developed in a later section.⁵ The second question is who held the property when the defendant acted, because the consent that matters belongs to the possessor, and the law separates a person who has only custody under limited authority from a person who has possession. The third question applies those ideas to relationships that regularly generate disputes: employees who handle an employer's goods, bailees who hold goods for an owner, and finders of lost property. In each of them the owner has parted with something, so the issue is how much was handed over, and the answer decides whether a later taking invaded the owner's possession.

Students lose this element when they treat the defendant's wish to have the property as an answer to the trespass question. A defendant may want property badly and may intend to keep it forever, yet if the property came from a possessor who consented, or the defendant already held it lawfully when forming that wish, the taking was not trespassory and larceny fails.⁶ Intent to steal is a separate element with its own timing rule, and it cannot supply a trespass that the facts do not contain.

Consent and Lawful Possession

Two situations show the trespass element at its simplest, and in both the defendant plainly ends up holding someone else's property. The first is consent: when the person who has custody or possession agrees to the defendant's acquiring the property, the acquisition is not trespassory.⁸ The second is prior lawful possession: a defendant who already holds the property with the possessor's permission, and only afterward decides to keep it, has not taken it from anyone's possession.⁹ Both results follow from the fact that larceny is an offense against possession, so its wrong lies in invading another person's hold on property. A bailee who rightfully received goods from the owner could not be guilty of larceny at common law, even when the bailee used them in a way the owner never expected, because nothing had been removed from the owner's possession against the owner's will.¹⁰ A defendant who holds property with the possessor's blessing has nothing to invade, and a later change of mind alters what the defendant means to do with the property without altering how the defendant came by it.

The rental-car illustration isolates the second situation, because a single fact, the moment the intent to keep the car formed, decides the outcome. A renter signs for a car meaning to return it in a week and says so to the agency. When the week passes, the renter decides to keep the car permanently and pays nothing more. At common law the renter is not guilty of larceny, because the decision to appropriate the car came while the renter was already in rightful possession under the rental contract.¹¹ Change the timing and the answer reverses: a renter who intended to keep the car at the moment of renting has made a trespassory taking, and the offense is larceny.¹² The agency agreed to hand the car to a customer who would bring it back, and a customer who planned from the start to keep it was not the customer the agency agreed to deal with. How the law treats consent obtained that way is taken up in the larceny-by-trick section below, and the timing of the intent to steal has its own section as well. Here the consequence is narrower: where possession was lawfully acquired and the wish to keep the property came later, common-law larceny fails, although another theft offense may fit those facts.

Consent has to cover the taking the defendant actually makes, so a permission given for one purpose does not authorize a taking for another. The California shoplifting case from the asportation discussion shows how this works. The defendant lifted a shirt from its hanger, carried it across the store, and told a cashier he wanted to return it, and the store issued a credit voucher at the direction of its security agent. He argued that the store, with full knowledge of what he had done, had consented to the voucher. The California Supreme Court answered that the question was whether the store consented to his taking the shirt in the first instance. A self-service store consents to a customer's picking up an item and carrying it to a sales counter intending to buy it, and does not consent to a customer's removing an item intending to steal it.¹³ Consent, and therefore trespass, turned on the defendant's intent when he took the shirt from the rack.

A permission must also be an actual grant, and pointing out where goods are does not qualify. An owner who knows that a person means to steal merchandise and instructs an employee to give that person whatever is wanted has consented, because the employee acting on the owner's orders carries out the owner's own consent, and no larceny follows.¹⁴ If the employee only shows the person where the goods are, without handing them over or giving permission to take them, the taking is without consent and trespassory, and a larceny conviction is justified.¹⁵ The two situations differ in one fact: whether the owner's agent authorized the transfer or merely revealed where the goods sat.

The last contrast concerns a defendant who never takes anything out of another person's hold. A buyer pays $100 today for a diamond ring that the seller has agreed to deliver next week, and the seller never delivers it. The seller is not guilty of larceny, because the seller has not trespassed on the buyer's possession and has only refused to place the ring in it.¹⁶ The dividing line is that taking something from a person who is entitled to retain it is a trespass, while failing to give something to a person who is entitled to receive it is not.¹⁷ The buyer never held the ring, so no possession was invaded, and the grievance is a broken promise. Students lose this issue when they see a dishonest result and call it larceny without asking whose possession was invaded.

Consent also explains why some deceptive schemes are not larceny at all. The California Supreme Court in People v. Williams illustrated the point with a Court of Appeal decision in which a ski-resort employee staged an accident at work to obtain payment for a knee injury he already had. The resort willingly paid his medical expenses on his false claim that it was responsible, so nothing was taken without consent, and the proper charge was false pretenses rather than larceny.¹⁸ A lie therefore does not automatically preserve a larceny theory. Whether deceit leaves a taking trespassory depends on what the victim handed over, a question the larceny-by-trick and false-pretenses sections take up.

Custody Versus Possession

The consent that matters belongs to the possessor, and that raises a question whenever the defendant already holds the property: whose possession, if anyone's, is being invaded? Holding the object does not settle the answer, since the law sorts holders by how much authority they were given over it. Possession is a broad authority to control and use property, while custody is the narrower authority of a person who has the property physically but only limited rights to deal with it.²⁰ A person with only limited authority holds custody while another person retains possession, and misappropriation by that person is larceny; a person with discretionary authority holds possession, and misappropriation by that person is not larceny.²¹ The reason is that larceny requires the defendant to take the property out of the victim's possession, and a defendant who already has possession has no one else's possession left to invade, although the conduct may be embezzlement.²²

The distinction exists because larceny, as an offense against possession, left a gap. A bailee who had rightfully received goods from the owner could not commit larceny by misusing them, even in a way the owner never expected, because nothing was taken out of the owner's possession against the owner's will.²³ The courts answered by stretching the concept of possession itself: an employer or other owner who temporarily entrusted goods to an employee or customer was treated as still possessing them until the transaction was complete, so a later conversion could be called a trespassory taking.²⁴ The device is called constructive possession. The owner is treated as possessing the property even though someone else physically holds it, and the holder has custody only.²⁵ An English case from 1779, Rex v. Pear, supplies the historical background. Pear rented a horse on the representation that he was going to Surrey, rode to Smithfield instead, and sold it, and the case came to stand for the principle that an owner who entrusts property to an employee or agent keeps constructive possession while the employee or agent receives only custody.²⁶ The fraud in that case belongs to the larceny-by-trick section below, and here the case matters only for the fiction it left behind.

Each half of the custody-possession rule has its own logic. A holder given only limited authority, such as the job of carrying an item to one place or watching it for a while, has not received the owner's right to deal with the item as the holder's own. The owner's control over what happens to the thing is still intact, so treating the owner as the possessor describes the situation accurately, and a holder who exceeds the narrow permission invades a possession that never left the owner. A holder given discretion stands differently. The owner has chosen to place the property in the holder's hands to use or dispose of within a role, which creates a relationship of trust, and keeping the property later breaches that trust without invading anyone's hold on it. Larceny, as an offense against possession, does not reach that breach, and the law covers it with embezzlement, a statutory offense created by Parliament alongside larceny.²⁷ Because the line depends on how much authority the holder received, close cases can fall on either side, and the holder's role and the scope of the instructions carry the analysis.

Constructive possession arises in three recurring situations:

• An employer or principal delivers property to an employee or agent to use, keep, or deliver for the principal.
• An owner loses or mislays property and someone else finds it.
• An owner delivers property to another as part of a transaction that is to be completed in the owner's presence.

In each of them the owner is treated as having kept possession throughout, so a person who takes and carries away the property with the intent to permanently deprive the owner commits larceny.²⁸ The first two situations have their own sections below, on employees and on lost and mislaid property. The third needs only a short explanation here, because its reason is easy to see. An owner who hands property over in the middle of an exchange that is not yet finished, while watching, has not agreed that the other person may keep the property or treat it as the other person's own. The handover is one step in the transaction, and the transaction ends only when the owner receives what was promised.

The gas station shows that third situation at work. A driver pulls in, asks to have the tank filled, and drives off without paying. Because the exchange was to be completed in the station's presence, the station kept constructive possession of the fuel, so the driving away was a trespassory taking and therefore larceny.²⁹ Some courts would call this larceny by trick, but that label names one way of committing larceny and does not create a separate crime.³⁰ The rental car from the last section is the pole on the other side, and the difference between the two is the authority the owner handed over. The rental agency gave the renter unrestricted use of the car for a week, which is possession, so a later decision to keep the car took nothing from the agency's possession.³¹ The station gave the driver no authority beyond receiving the fuel as one step in a purchase it was watching, which is custody, so leaving without paying took the fuel out of the station's possession.

Students lose this issue when they equate physical control with possession. A clerk at a till and a courier on the street both have the property in hand, and the stem's real question is how much authority the owner gave each of them. The same misappropriation is larceny when the answer is custody and falls outside larceny when the answer is possession, and in that second case the next move is to test the facts against embezzlement, which a later section develops.

Employees and Delivered Property

Employment is the setting where the custody-possession line is applied most often, because an employee almost always holds the employer's property for some purpose of the employer's. The ordinary rule is that a low-level employee holds only custody, so the employer keeps possession, and an employee who wrongfully appropriates the property takes it out of the employer's possession and commits larceny.³³ The reason lies in what such a job involves. A clerk or cashier is given tasks to perform with the employer's goods and money, and the employer has not handed over the control a person has over something of the person's own. The employer's authority over what happens to the property is therefore still intact. The common-law courts described that situation by treating the employer as still possessing the property while the employee had custody, so that appropriating it invaded the employer's possession.³⁴

An entry-level bank clerk who takes a stack of $100 bills out of her cash drawer and walks out of the bank with them shows the rule at work. A court would probably hold that she had only temporary custody of the bills in her drawer, so she took them from the bank's possession and is guilty of common-law larceny.³⁵ Her low rank carries the analysis, since nothing in an entry-level position suggests that the bank gave her discretion to deal with the money as she saw fit.

Two circumstances move an employee from custody to possession, and when either one applies, the same misappropriation falls outside larceny. The first is especially broad authority. A corporation's president who holds the right to sign checks on its bank accounts, and who writes a $1,000 check for personal use in a way the employment contract does not authorize, has possession of the account's contents, so the misuse is embezzlement rather than larceny.³⁶ The logic matches that of any holder with discretion: the employer chose to place control in the employee's hands, and misusing that control breaks a trust without invading anyone's hold on the property.

The second circumstance gives this section its name. When a third party delivers property directly to the employee for the employer's benefit, and the employer never takes intermediate possession, the employee holds possession and not mere custody.³⁷ A messenger who goes to the bank, collects payroll money that belongs to the employer, and decides to keep it has therefore committed embezzlement and not larceny.³⁸ The employer's claim to constructive possession depends on the employer having possessed the property before entrusting it, because the fiction treats the employer as still holding what was handed to the employee. When an outsider hands the property straight to the employee, the employer never held it, so there is no possession for the employee to invade. That was the reasoning of the English court in R. v. Bazeley in 1799.³⁹

Set the clerk beside the messenger and rank drops out as an explanation, since both are low-level employees. The two differ in one fact: the clerk took money that the bank itself had put in her drawer, while the messenger received money from an outside party before it ever reached the employer. Students lose this issue when they stop at the job title and never ask who handed the property to the employee.

The third-party rule carries a twist that exposed a gap in the law. Once an employee puts delivered property into a place the employer designated to receive it, such as a cash box or register drawer, constructive possession returns to the employer, so a later taking from that container is larceny.⁴⁰ A teller who receives a depositor's money and puts it in the till therefore commits larceny against the bank if he later removes it, because the money first came into the bank's possession and the removal trespasses on that possession.⁴¹ The same teller who puts the depositor's money straight into his pocket commits no larceny at all. The depositor voluntarily parted with the money, so there was no trespass against her, and the bank never possessed the money, so there was no trespass against the bank.⁴² A cashier follows the same pattern: converting a customer's $50 bill before it reaches the register is embezzlement, because the bill never reached the employer's possession, while taking it from the register at the end of the day is larceny, because placing it there gave the employer possession and reduced the cashier's rights to custody. Some courts add a refinement for the teller who already intended to steal when placing the money in the drawer, reasoning that possession never returned to the owner and larceny therefore fails, but that is a wrinkle and the till-or-pocket line is the core rule.⁴³

That line made little sense as a basis for criminal liability, since the same person with the same intent was guilty or innocent of larceny depending on whether the money passed through the till on its way to the pocket. The courts could have closed the gap by holding that the depositor kept constructive possession until the money reached the till, but they chose not to add another fiction.⁴⁴ The legislature then stepped in and created the statutory misdemeanor of embezzlement, so the offense exists because larceny's reasoning about possession could not reach an employee who converted property delivered by a third party before the employer ever held it.⁴⁵ Embezzlement is developed in its own section below.

Bailees and Breaking Bulk

A bailee is the next kind of holder to test against the custody-possession line. A bailment arises when an owner, called the bailor, hands goods to another person, the bailee, for a limited purpose such as carrying them to a buyer, storing them, or repairing them, with the understanding that the bailee will deal with them as directed. The general rule is that a bailee has possession of the goods the bailor has bailed.⁴⁷ The reason is the one that governed discretionary employees in the last section: the owner chose to put control of the goods in the holder's hands, so the holder has them under the owner's own grant. Larceny protects possession, so a person who rightfully obtained possession from the owner cannot be guilty of larceny, even when using the goods in a way the owner never expected.⁴⁸ A bailee who later decides to keep the goods has broken a trust but has taken nothing out of anyone else's possession.

A simple bailment shows the baseline. Jane gives Sam her textbook so that he can carry it to a bookstore, sell it, and bring her the proceeds. Sam is a bailee and holds possession of the book, so if he decides on the way to keep it, he has converted the book to his own use, and the offense is embezzlement rather than larceny.⁴⁹ If his promise was false and he meant to keep the book all along, no bailment ever formed, and the offense is larceny by trick, which a later section develops.⁵⁰ The bailee rule left a gap, because from the owner's side a bailee who betrays the trust looks much like a thief. The courts responded by manipulating the concept of possession so that it would embrace misappropriation by a person who already had the owner's consent to hold the goods.⁵¹

The earliest effort to close that gap was the Carrier's Case, decided in the Star Chamber in 1473. A man had agreed to carry bales of woad, a dye, to Southampton, and instead took the bales to another place, broke them open, took the goods inside, converted them to his own use, and hid them, and the question for the court was whether this could be felony.⁵² The rule that came out of the case is that a bailee who breaks bulk is liable for larceny of the goods he held.⁵³ The phrase breaking bulk describes the act itself: the bulk is the closed package the bailor handed over, taken as a single unit, and breaking it means opening it to get at what is inside. The label has survived because the distinction it marks, between carrying off a container as delivered and opening it to take the contents, is still the line the law draws.

The modern statement keeps that rule. When a bailee opens closed containers in which the bailor placed the property and then misappropriates the contents, the law treats possession of the contents as having reverted to the bailor, and the misappropriation becomes a trespassory taking that is larceny.⁵⁴ The reversion is a legal fiction that describes the result, since the bailee still physically holds the contents. The mechanism is easy to follow once the bailor's grant is stated precisely. Handing over a sealed container gives the bailee authority over the container as a unit, to carry it where the bailor directed, and gives no authority to look inside and dispose of what is there. When the bailee opens the container and takes the contents, the bailee has gone beyond the possession actually given, so the law places possession of the contents back with the bailor, and the removal takes them out of that possession without consent. That supplies the trespass the ordinary bailee case lacks. Larceny still requires the intent to steal, so a bailee who breaks bulk and carries off the contents with that intent commits larceny.

The exception reaches part of a load as well as the whole of it. A hauler entrusted with a trailer of wine holds possession of the entire trailer, but when the hauler goes in and removes a single bottle intending to keep it, possession of that bottle is treated as back with the owner, and the removal is larceny. The trailer and the crate teach the same lesson. What carries the result is the act of getting inside what the bailor packed, and the bailor's loss is no greater in the opened case than in the unopened one.

The exception stays narrow because of what a wider version would do to the bailee rule. From the bailor's side, a bailee who vanishes with an unopened crate and one who opens it and sells the contents cause the same loss, so a rule keyed to the size of the harm would erase the difference. Larceny draws the line at the form of the bailee's act because the offense concerns invasion of possession: opening a container goes beyond the possession handed over, while carrying off the container as delivered stays inside it. If every misuse of bailed goods counted as exceeding the bailee's authority, the general rule that a bailee has possession would have no content, and embezzlement would have little left to cover.

Students lose this issue when they call any bailee's betrayal larceny because the owner obviously lost the goods. The controlling question is whether the bailee opened the container before taking what was inside, since a bailee who keeps goods exactly as delivered took nothing out of the bailor's possession.

Lost and Mislaid Property

The custody-possession cases so far asked what an owner chose to hand over. Lost and mislaid property poses the same question about possession where the owner handed over nothing: the item left the owner's control through forgetfulness or accident, and a stranger came upon it. The controlling statement is that lost or mislaid property is treated as constructively in the owner's possession, which means the law regards the owner as still holding it even though the owner is nowhere near it, so a wrongful taking can be larceny.⁵⁶ Mislaid property is something an owner set down on purpose and then forgot, like a book left on a library table, and lost property is something that slipped from the owner's control without the owner knowing where it went.⁵⁷ The questions that decide whether a finder who keeps such property has committed larceny are why the owner's possession survives the loss, when the finder's intent must exist, and how far the owner's identifiability limits the rule.

Larceny protects possession against trespass, and a finder who picks up a wallet from a table is not pulling it out of anyone's hands. If the analysis stopped at physical control, no one's possession would have been invaded and nothing would have been taken without consent, so a finder could keep whatever an owner mislaid. The courts avoided that result with the same device they used for employees: the owner's possession is treated as continuing because the owner has done nothing to give it up.⁵⁸ An owner who sets a book down and forgets it has not consented to anyone's taking it and has not abandoned the claim to it. A finder who picks it up intending to keep it therefore invades a possession the law still attributes to the owner, and does so without consent, which is the trespassory taking that larceny requires.⁵⁹

The finder's state of mind decides the outcome, and the moment that counts is the moment of finding. At common law a finder was guilty of larceny if, at the time of finding, the finder intended to appropriate the property rather than return it, at least when the owner was known or reasonable means of identifying the owner were available.⁶⁰ Two finders who differ only in what they intended when they picked the item up show both sides of that rule.

Because both owners could be identified, the intent at the time of finding is the variable that moved the answer.⁶¹ An honest finder who picks up property to return it acquires possession without any trespass, and from that point the finder is in the position of anyone who obtained property lawfully and only later decided to keep it, a situation the earlier section on consent and lawful possession placed outside larceny. The rule also cuts the other way: a finder who intended to keep a watch at the time of finding is guilty even if a change of heart later leads to returning it, because the offense was complete at the finding.⁶² The same timing principle is developed in the later section on concurrence with the taking.

Some law departs from the timing rule. The Model Penal Code punishes a failure to make a reasonable effort to return found property regardless of the finder's initial intent, and in most states a separate statute makes it an offense to fail to register unidentified found property with the proper authority or to disclose the finding publicly.⁶³ A finder who escapes larceny on timing grounds may therefore still face liability under those provisions.

The scope of the rule has shifted over time. At very early common law it reached only mislaid property, on the theory that an owner who lost an item gave up constructive possession by losing it, so a later taking was not trespassory.⁶⁴ The controlling modern statement covers both lost and mislaid property.⁶⁵ What does the practical work today is whether the owner or lawful possessor can reasonably be identified. A wallet with identification gives a finder a direct route back to the owner, while a single coin on a sidewalk gives none.⁶⁶ The reason follows from the fiction itself: constructive possession exists to give an owner's claim something to protect, and a finder can fairly be charged with invading that claim only when the finder had some way to honor it. Authorities differ on how much weight the lost-versus-mislaid label deserves, so a sound answer ties its conclusion to the facts that show whether the owner could be found, such as a name, identification, or the place where the item was left. Abandoned property sits at the far end of the spectrum, because it has no owner and so there is no possession to invade.⁶⁷

Students lose this issue when they treat the finder's later conduct as the answer. A finder who keeps a watch for weeks has shown only what happened afterward, and the controlling question is what the finder intended at the moment of finding. Later conduct matters only as evidence of that earlier intent, and a finder who held the item innocently at the start has not committed larceny however the matter ends.