How Prosecutors are Complicit in Making a Visit to Your Friend’s Home Illegal
It is far from uncommon that a person drops by their friend’s home only to find out that the friend is not home, or anyone else for that matter, when they arrive. Did you know though, that doing so could lead to your arrest? It can, in some areas of the state, which is unfortunate.
New York, like almost every other state, has trespassing statutes on the books. But what is troubling here in New York is the manner in which certain trespass cases come to light(this posting is not meant to convey that trespassing can never occur). To show by way of example how that scenario above can play out, take into account the facts that form the basis of many criminal complaints in local criminal courts through out New York City.
To charge the A misdemeanor crime of trespass in the second degree, prosecutors allege the following: “Police Officer Smith observed the defendant in the above location, a dwelling, beyond the locked doors of the building and that there were clearly posted signs reading no trespassing. P.O. Smith also states that the defendant could not provide a valid basis for being present at the building.” What is very troubling about that scenario is that the officers arresting people for this crime under these circumstances are doing so in predominantly minority communities. Notwithstanding that a person has a 5th Amendment right to not have to provide a valid basis for being present at the building, prosecutors in charge of handling these cases generally tell defense attorneys that if the defendant knew someone in the building just have the person come to court and explain the relationship. The problem again is that the defendant does not have an obligation to prove his lawful presence, rather the prosecutor has the burden of proving his unlawful presence.
What leads to even more confusion amongst practitioners, including prosecutors, is the fact that many of the buildings in which the defendants are generally arrested are subscribers to what is called the Clean Hall Program. This program enables police to enter the private buildings to patrol for “trespassers and other unsavory types.” As a general 4th Amendment principle, police officers can only be upon private premises if there is a permissible basis, and generally patrolling the halls of a private building without the owner’s permission is not a permissible basis. What has really confounded prosecutors is the fact that they believe the Clean Halls program allows the officer encountering the defendant to determine whether the defendant was there lawfully or not. This is the furthest thing from the truth when it comes to the nature of the program. So in short, know that if you enter a Clean Halls building and an officer stops you, asking why you are there you do not have to give a valid basis for your presence and the Clean Halls program does not make the arresting officer the final arbiter of who is unlawfully present.
Now, if only prosecutors could enforce that and get police to stop abusing their arrest powers.
