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Jordan Wells
Staff Attorney
Direct Line: 212-607-3314
jwells@nyclu.org
Ligon v. City of New York, No. 12 Civ. 2274 (AT)(HBP): Objection to Monitor
recommendation regarding roll-call training on Trespass Affidavit Program
The New York Affiliate of the American Civil Liberties Union | Robin Willner, President | Donna Lieberman, Executive Director
makes clear that the onus is on the officer to establish probable cause to arrest. Then, however,
the script undermines that point with the following instruction:
If you suspect the person does not have authority to be in the building, 1 but the
person cannot or refuses to explain his or her presence in the building, and you are
unable to verify the persons authority to be in the building, you may instruct that
person that he or she must leave the building, and that refusal may result in arrest
for Criminal Trespass.
Discussion
Probable cause for an arrest requires that officers have knowledge of, or reasonably
trustworthy information as to, facts and circumstances that are sufficient to warrant a person of
reasonable caution in the belief that an offense has been or is being committed by the person to
be arrested. Zellner v. Summerlin, 494 F.3d 344, 368 (2d Cir. 2007). While the Owners
Affidavit grants permission to the NYPD to enter a building, it cannot serve to authorize officers
to make arrests without probable cause. See People v. Powell, 180 Misc. 2d 627, 633 (N.Y. Sup.
1999) (Although the [TAP owners affidavit] may authorize the police to enter on to the
property, the form does not diminish the rights of the individuals who are found there.).
Adopting the view of the NYPD, the Monitor contends that when an officer orders a
person to leave a TAP building, it is as if the owner herself has revoked the persons permission
to be there, thus providing the predicate for a trespass arrest if the person remains. This premise
is deeply flawed. An owners complaint to an officer that a specific individual is present after
being instructed to leave indeed generally provides the information necessary for probable cause
to make a trespass arrest. See People v. Rogers, 245 A.D.2d 395 (2d Dept 1997) ([I]nformation
provided by an identified citizen accusing another individual of a specific crime is legally
sufficient to provide . . . probable cause to arrest.) (internal quotation marks and citation
omitted). 2 The information forming the basis for the arrest is conveyed to the officer by an owner
or manager of the property who can reliably say whether someone has authority to be on the
premises. Absent a complaint from someone with knowledge concerning an individuals
authority to be present, however, the officer herself must supply the information necessary for
probable cause. See, e.g., People v. Tinort, 272 A.D.2d 206, 207 (1st Dept 2000) (finding officer
had probable cause for trespass arrest where defendant claimed to have been visiting a friend,
1
The Monitor notes that an earlier draft of this instructionconsistent with the NYPDs
position at the timedid not require any suspicion of trespass for an officer to order a person to
leave. Monitor Ltr. at 3. The plaintiffs appreciate the Monitors attempt to seek consensus by
adding the requirement of some suspicion (albeit less than the reasonable suspicion associated
with Level 3 of De Bour), but the instruction still permits unconstitutional arrests.
See also, e.g., State v. Sanchez, 89 A.3d 1084, 1088 (Me. 2014) ([Officer] Smith was called to
the store by Rite Aid staff and spoke directly to an employee about Sanchez, following which he
believed he had authority to exclude Sanchez from the store. Consequently, he went directly to
Sanchez to order him not to enter the store. . . . Smith was authorized by Rite Aid . . . to order
Sanchez not to enter the Rite Aid store.).
2
but claimed not to know the friends name, and supplied an apartment number known by the
officer to be non-existent). In the unusual case where a person remains silent or offers a
reasonable explanation that the officer is unable either to verify or negate, the officer does not
possess information sufficient for probable cause. At this point, unlike a civilian owner who has
discretion (within the bounds of landlord-tenant law) to revoke the persons license to be present,
an officer wearing a police badge and acting under color of law is constrained by the probable
cause requirement. 3 Although the officer cannot make an arrest at that moment, the plaintiffs
proposed instruction recognizes that she can continue observing the person and take additional
investigative measures toward establishing probable cause. 4
At bottom, the NYPDs position is that the Owners Affidavit enables NYPD officers to
circumvent the probable cause requirement by transforming them from state actors into building
owners agents, thereby legitimizing arrests that they could not make as police officers. The
Court should reject this position and make clear that the Owners Affidavit cannot enlarge
officers authority beyond constitutional limits and thus does not enable them to command a
person to leave on pain of arrest absent probable cause that the person is trespassing.
Conclusion
The voice-over for Slide 17 undercuts the otherwise clear and constitutional instructions
in the Monitors training recommendation, thus threatening the rights of TAP residents and their
visitors. The plaintiffs respectfully ask that the Court modify the recommendation by replacing
that instruction with the plaintiffs proposed instruction, attached here as an exhibit (which also
includes a redline of the plaintiffs proposal compared against the Monitors recommendation).
We remain available to consult with the Court, the Monitor, and the defendants.
Nor could an order to leave in this situation create the probable cause necessary for an arrest.
See Davis v. City of N.Y., 959 F. Supp. 2d 324, 344 n.81 (S.D.N.Y. 2013) ([T]he refusal to obey
an officers request to leave cannot constitute probable cause for a trespass arrest.). In Davis,
the NYPD relied on a Penal Law provision that creates an offense whenever an individual
remains in a NYCHA building following a request to leave by a housing officer. See id. (citing
N.Y.P.L. 140.10(f)). Even in the context of that specific statute, Judge Scheindlin doubted
whether an officers request to leave a NYCHA building could form the basis of an arrest. See id.
But even if, contrary to her view, the NYPDs claim of authority as to NYCHA buildings could
be sustained based on that specific statute, no such statute exists as to privately owned buildings.
4
The Monitor adverts to a concern by the NYPD that the plaintiffs modification would call
into question the reason for the [TAP] program and threaten its viability. Monitor Ltr. at 2. This
fundamentally misapprehends the plaintiffs objection, which is not (and never has been) to a
program allowing officers access to private buildings for enforcement activity. Rather, the
plaintiffs object only to an instruction authorizing arrests based on less than probable cause.
3
Respectfully submitted,
/s/ Jordan Wells
Jordan Wells
Mariana Kovel
Christopher Dunn
New York Civil Liberties Union Foundation
Johanna B. Steinberg
Jenn Rolnick Borchetta
The Bronx Defenders
Foster Maer
LatinoJustice PRLDEF
J. McGregor Smyth, Jr.
New York Lawyers for the Public Interest
Jeffrey Resetarits
Michael Grunfeld
Shearman & Sterling LLP
c:
Encl.
EXHIBIT