Is Merely Entering and Exiting a Building Five Minutes Later Enough to Establish Probable Cause for a Trespass Arrest in New York

When all the criminal laws in New York are reviewed, Trespassing in the Third Degree, pursuant to New York Penal Law section 140.10, certainly is not one of the more complex laws. Having said that, it does not mean that complex legal issues will not arise for both New York criminal defense attorneys or prosecutors. Generally, one is guilty of Criminal Trespass in the Third Degree when he or she knowingly enters or remains unlawfully in a building and that property or building is fenced in, enclosed in a manner to exclude intruders or is a public housing project with the rules “conspicuously posted.” Not a complete list of all means where one can be charged with Trespassing, the question posed in this entry is whether or not merely entering and exiting a housing project after five minutes is sufficient to establish the basis to ultimately stop, question and arrest a person. Fortunately, a Brooklyn Criminal Court judge recently answered this question.

In People v. Ortiz, 2010KN086039, NYLJ 1202495789148, a police officer accused a young woman of Criminal Trespass in the Third Degree. After going through the arrest and trial process, the case proceeded to hearings where a judge determined whether or not probable cause existed to arrest the accused.

In addition to other relevant testimony, the arresting officer stated at the hearing that he observed the defendant enter a public housing building alone at approximately 11:47 am. He further testified, without any detail, he had prior interactions with the accused. After approximately five minutes, the officer testified the the defendant exited the building and began speaking with a person outside. At that point, the officer approached the accused and asked her if she was visiting a person and what that person’s name was. Ultimately, the defendant could not name a person and she was placed under arrest and in custody.

The Court’s Decision

Pursuant to People v. DeBour, 40 NY2d 210 [1976], a police officer with the New York City Police Department (or any department or city) must have a credible objective reason for approaching a defendant. Time and time again, courts throughout New York have found that many differing factors can establish the necessary foundation for this reason. Here, however, solely emerging from a NYCHA building that has a posted a “no trespassing” sign, in and of itself, is not a credible objective reason to approach a person to request information under Debour.

In the case before the court, prosecutors failed to establish a credible reason to stop and question the defendant. While conducting a “vertical” in the building where a “sweep” is being conducted may lead to questioning, here there was little to no additional testimony. The officer did not testify what “prior interactions” had occurred or for that matter what those interactions consisted of. Moreover, the officer never testified, what, if any, complaints about this individual or trespassing had been previously made or what, if any, drug traffic or activity had occurred in the public housing. Beyond this, the officer failed to testify how, if at all, beyond coming out and engaging another person, how the defendant’s conduct was apparently suspicious or criminal in nature. As a result, the court suppressed the statement alleged to have been made by the accused as well as the probable cause for her arrest.

The important lesson to take from this case is not that an individual cannot be arrested and successfully prosecuted for Criminal Trespass where he or she enters or exits a public housing building after five minutes. The real lesson is that the burden to establish probable cause to arrest an individual for any crime needs to be established beyond a reasonable doubt not by the defendant, but by the prosecution. Whether it is the high caliber of a criminal defense attorney or the lack of experience on the part of the prosecution, without this probable cause an entire case against an accused can and will crumble.

Founded by two former New York County Assistant District Attorneys, Crotty Saland PC represents those arrested for crimes throughout New York City and many surrounding suburbs. Beyond the New York Criminal Lawyer Blog, a wealth of information on crimes, statues and legal decisions can be found on the Crotty Saland PC website.

Posted in:
Updated: