Commonwealth v. Magadini

Supreme Judicial Court of Massachusetts · 2016 · Property

474 Mass. 593 (2016)

Updated July 23, 2026

PropertyCriminal trespassNecessity defensenecessityhomelessnesslawful alternativesclear and imminent dangerno trespass order

Facts

The defendant, a homeless lifelong resident of Great Barrington, was subject to no trespass orders at Barrington House, Castle Street, and SoCo Creamery. On six occasions between February and April 2014, police found him in Barrington House or Castle Street during cold weather, often lying or sleeping near heaters; on June 10 he entered SoCo Creamery, refused requests to leave, and used the bathroom for ten to fifteen minutes. The defendant testified that he generally lived outdoors, had previously been denied entry to or expelled from the only local shelter, had repeatedly failed to secure an apartment, and had nowhere else in Great Barrington to stay. He requested a necessity instruction based on the danger of exposure to severe weather, but the trial judge denied it on the ground that legal alternatives existed.

Issue

Was the defendant entitled to a jury instruction on the common-law defense of necessity for the trespass charges arising from his presence in private buildings during cold weather, and was there sufficient evidence to sustain the April 8 trespass conviction where he was merely walking through a common area during business hours? The case also presented whether a prior no trespass order defeats any implied license to enter publicly accessible common areas.

Rule

A defendant is entitled to a necessity instruction if he presents some evidence on each foundational element: (1) a clear and imminent danger; (2) a reasonable expectation that the unlawful action will directly abate the danger; (3) no effective legal alternative; and (4) no legislative preclusion of the defense. To satisfy the third element, the defendant need not negate every conceivable alternative; he must present enough evidence, taken as true with reasonable inferences in his favor, to create a reasonable doubt that effective lawful alternatives were available at the time of the unlawful conduct. Under the criminal trespass statute, entry or remaining after a lawful no trespass order is sufficient; loitering or lingering is not an additional element, and any implied license to enter common areas is revoked by a no trespass order.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

On a January night in Duluth, Nina Torres, who has been sleeping outdoors, enters the vestibule of a privately owned apartment building after being served with a valid no trespass order months earlier. The temperature is described at trial as "very cold," and police find her curled up beside a radiator at 3 a.m.

If Nina is prosecuted for criminal trespass and requests a necessity instruction, which is the strongest basis for granting it?

Explanation. A necessity instruction is warranted if the defendant produces some evidence on each foundational element, including a clear and imminent danger. The majority treated cold or very cold nighttime conditions, especially when the defendant was lying down or sleeping, as sufficient evidence of imminent danger from exposure. Homelessness alone is not enough, the Commonwealth's burden arises only after the defendant meets the threshold, and necessity is not categorically unavailable for trespass.