Criminal Defense
Since 1993
Since 1993
Can You Be Arrested for Cursing at a Mall Cop? (The Rules of Trespass)
By: John Guidry
Mall security doesn’t get much respect. And really, who wants to take flack from kids who have nothing better to do than hang out at the food court and give grief to guards just trying to do their job?
Well, “K.M.B.” was one such kid. He decided to confront mall security, telling them to “F*&# off” twice and adding a racial slur (“F*&^ You Cracker”) for good measure.
Normally, you would expect a Disorderly Conduct charge for such language. But instead, K.M.B. was arrested for Trespass.
Banned from the mall or arrested for trespassing?
If the warning wasn’t given correctly, the charge won’t stick. Call John today at (407) 423-1117.
The Case: K.M.B. v. State
In K.M.B. v. State, 68 So. 3d 347 (Fla. 4th DCA 2011), the police arrived while mall security was trying to get K.M.B.’s information to fill out a trespass warning form. When the police heard the “F-bombs” flying, K.M.B. landed directly on the “Go To Jail” spot.
The Charge: Trespass After Warning. The Verdict: Convicted at trial. The Appeal: The conviction was overturned.
Why? Because the State forgot how to prove the most important element of the crime.
The Elements of Trespass (Florida Statute 810.09)
To convict someone of trespassing in a place open to the public (like a mall), the State must prove three things:
- You willfully entered or remained on the property.
- You did so without authorization.
- Notice against entering or remaining had been given.
It is this third element—Notice—that caused the problem here.
The “He Said, She Said” Problem At trial, the mall security guard testified that “his staff” had asked K.M.B. to leave.
- The Flaw: The specific staff member who actually gave the warning did not testify.
- The Ruling: The court ruled that the guard’s testimony (“my staff told him”) was hearsay. It was “neither competent nor substantial evidence sufficient to establish an element of the State’s case.”
Because the State couldn’t prove who gave the warning or exactly what was said, they couldn’t prove K.M.B. was on notice that he had to leave.
“No Trespassing” Signs vs. Public Places
The court relied on Smith v. State, which notes a significant difference between:
- Private Land: A fenced field with a “No Trespassing” sign. (The sign is the notice).
- Quasi-Public Places: A mall or grocery store. (You have an “implied invitation” to be there).
In a mall, you are allowed to be there until someone with authority specifically tells you to leave. If the State cannot produce the witness who revoked your invitation, there is no trespass.
John’s 2025 Update: The Rise of Written Warnings
Note: Since this case, malls and police have gotten smarter.
To avoid the K.M.B. problem, most security guards and police officers now issue Written Trespass Warnings.
- They will stop you, ask for ID, and hand you a physical piece of paper stating you are banned for 1 year (or life).
- They then photograph the paper and upload it to a database.
Why this matters: If you return to the mall and are caught, they don’t need the original security guard to testify. They just produce the signed piece of paper from the database. That paper is the proof of notice.
However, the “Conduct” Defense Remains: If you are being trespassed solely for your speech (like cursing), we can sometimes argue that the initial revocation of your implied invitation was unlawful, especially if the mall has inconsistent policies.
Don’t Let a Mall Ban Ruin Your Record
If you were arrested for trespassing, we need to verify if the warning was properly given and documented. If it was just “some guy said get out,” we might have a winning defense.
Call me at (407) 423-1117. Let’s look at the evidence.
About John Guidry II
John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.
Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.
Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.
When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.