Opinion
Docket No. CR-024677-22QN
07-14-2023
The People of the State of New York v. Hamlett, Defendant.
For the People: Melinda Katz, District Attorney (by William Weishaupt & Franchesca Basso) For Mr. Hamlett: Queens Defenders (by Gina Mitchell & Matthew Thomas)
Unpublished Opinion
For the People: Melinda Katz, District Attorney (by William Weishaupt & Franchesca Basso)
For Mr. Hamlett: Queens Defenders (by Gina Mitchell & Matthew Thomas)
Wanda L. Licitra, J.C.C.
On June 22, 2023, pursuant to the order of a prior court, this court conducted a Mapp/Dunaway hearing in this case. At the hearing, the defense moved to suppress cocaine allegedly recovered during a police search of Mr. Hamlett incident to his arrest. The following constitutes the court's findings of fact and conclusions of law.
FINDINGS OF FACT
At the hearing, the People called one witness, NYPD officer Osvaldo Nunez. The court finds Officer Nunez's testimony credible and makes the following findings of fact.
Officer Osvaldo Nunez is an NYPD Neighborhood Coordination Officer with the 101st Precinct. Previously, he worked as a patrol officer and as an administrative officer. He has also worked in the Manhattan Court Section and the 115th Precinct. Before becoming an officer, he attended John Jay Community College and the six-month NYPD Police Academy. In total, he has been with the NYPD for five and a half years. During his career, he has made almost 150 arrests.
On October 4, 2022, Officer Nunez was working a Neighborhood Coordination Officer tour. His tour lasted from 2:00 p.m. to 11:35 p.m. He was working with a partner, patrolling the Redfern Houses. The Redfern Houses are a NYCHA development in Far Rockaway, Queens. The police patrol the Redfern Houses in part because of the complaints they receive about people trespassing there.
Officer Nunez described his duties on that day as "what's called an interior patrol." "An interior patrol is basically you go inside of whichever building you're going into, you go up every flight of stairs, you walk through the building, the staircases, and you basically just do an interior of the building as well as the roof of the building," he explained. "You check the building to, you know, see if any crimes are being committed within the staircases, within the hallways; if anybody that's in those stairways and hallways if they reside there, if they have any business being in the building." If the officer finds someone in the building, there is a "procedure" that they follow. "[O]n the first floor, you can ask them a few questions," like "if they live here, are they visiting anybody that lives here, and do they have any business in that building." However, for areas like a "roof or rooftop landing," any person "would be placed under arrest for trespass." That is because, according to Officer Nunez, "there's multiple NYCHA signs" that are "posted on various areas throughout the development throughout the buildings" stating that "NYCHA does not want any person on the roof or rooftop landing." The policy to immediately arrest anyone in these areas does not distinguish between residents and non-residents. "Nobody's allowed on the rooftop or the rooftop landing of the building."
Given this description, an "interior patrol" appears equivalent to a "vertical patrol." That is a well-known programmatic tactic "by which the police 'check the whole [NYCHA] building from the roof top to the first floor to see if there's... any violations.'" (See People v. Perez, 31 N.Y.3d 964, 967 [2018] [Rivera, J., dissenting] [quoting a police officer]). Those tactics have long been controversial. (See, e.g., Dorielle E. Obanor, Dismantling Discrimination in the Stairways and Halls of NYCHA Using Local, State, and National Civil Rights Statutes, 6 Colum. J. Race & L. 169, 173-75 [2016] ["Critics blame the tactic for the tragic deaths of innocent individuals, as well as the unconstitutional stops, frisks, and arrests of NYCHA residents... that... overwhelmingly impact[] Black and Latino communities."]). "Blacks and Latinos represent[] over ninety percent of all persons stopped in NYCHA buildings," and "significant racial disparities" have been found in "trespass stops and arrests, even after controlling for crime conditions, patrol strength, socio-economic conditions, and other policy-relevant factors." (Id.; see also Davis v. City of New York, 959 F.Supp.2d 324 [S.D.NY 2013] ["Plaintiffs... argue that the NYPD's practices are based on racial discrimination against African Americans and Latinos."]; People v. Jones, 210 A.D.3d 150 [3d Dep't 2022] [finding the New York State constitution prohibits searches and seizures "premised on racial profiling"]).
Officer Nunez specifically noted that there is a sign prohibiting various activities "as soon as you enter the building," in the lobby. However, he did not point to any other specific place at which this sign, or any other, is posted. The People entered a photograph of the sign as Exhibit 1. It is cached here: https://nycourts.gov/reporter/webdocs/People-v-Hamlett-People-Exhibit-1.pdf.
The sign prohibits "[e]ntering restricted areas, including a building roof or roof landing."
On October 4, 2022, Officer Nunez began his interior patrol by taking the elevator to the rooftop of a building in the Redfern Houses. (The specific building was 15-40 Hassock Street.) He did not see anyone on the rooftop. After checking the rooftop, he continued his interior patrol by opening and walking through a red exit door that led into the interior stairwell. That red door was initially closed. Officer Nunez referred to this inside area as a "rooftop landing." It is directly above the sixth floor. However, there was not any sign or label that identified the area as the rooftop landing. The defense entered, as Exhibit A, a screenshot from the officer's body-worn camera to illustrate the area, which is at the top of the image: https://nycourts.gov/reporter/webdocs/People-v-Hamlett-Defense-Exhibit-A.pdf.
Officer Nunez testified that he knew this area was a roof landing "[f]rom [his] prior experience conducting interior patrols in the NYCHA developments all through the 101st Precinct in Far Rockaway."
This entire interior stairwell-of which Officer Nunez described the roof landing as the top-is physically accessible to anyone, as residents can use the stairwell to go between floors. The entrance to the stairwell is marked as an "exit" on each floor, and each of the doors on each floor is generally unlocked. Those doors are black. The red door, which when opened leads to the rooftop, did not have any signs or markings on the inside that it led to the rooftop.
On this upper area, Officer Nunez encountered two individuals, one of whom was Mr. Hamlett. Officer Nunez described the actions he took next in the following exchange with the prosecutor:
Q: Once you saw the defendant on the landing, what did you proceed to do?
A: I proceeded to place the defendant and apprehended other under arrest.
THE COURT: I'm sorry. Can you repeat that?
THE WITNESS: I proceeded to place the defendant and an apprehended other under arrest.
Q: And why did you place the defendant and the apprehended other under arrest?
A: They were trespassing on the rooftop landing of the building.
Q: And how were you sure they were trespassing?
A: I observed them on the rooftop landing.
Before effecting these arrests, the officers did not ask either person any questions. Officer Nunez did not know how long the two people had been standing there. The sign prohibiting persons from "[e]ntering restricted areas, including a building roof or roof landing" was not in the area where Officer Nunez saw Mr. Hamlett and his companion.
Incident to Mr. Hamlett's arrest, Officer Nunez recovered a quantity of cocaine. He knew it was cocaine because of his training and experience in identifying controlled substances.
CONCLUSIONS OF LAW
At a Mapp / Dunaway hearing, the People have the initial burden of coming forward with facts that establish, prima facie, that each police act was lawful. (See, e.g., People v. Harris, 192 A.D.3d 151, 157-58 [2d Dep't 2020]). Here, there is only one police act to analyze. Immediately upon approaching Mr. Hamlett, the police effectuated a full-blown arrest for trespassing only because they "observed [Mr. Hamlett] on the rooftop landing." The police search that recovered the cocaine was incident to that arrest, making the cocaine an undisputed fruit of the arrest. Thus, the court must consider whether the People established the police had probable cause to arrest.
It is worth first reviewing fundamental principles of probable cause. The question of probable cause is an objective one. (People v. Hinshaw, 35 N.Y.3d 427, 437-38 [2020]). What is relevant is "the sum of the [objective] information known to the police at the time of the warrantless arrest and without the benefit of hindsight." (Farquharson v. United Parcel Service, 202 A.D.3d 923, 926 [2d Dep't 2022] [internal quotation marks omitted]). "In passing on whether there was probable cause for an arrest," the Court of Appeals "consistently [has] made it plain" that it "must appear to be at least more probable than not that a crime has taken place." (People v. Carrasquillo, 54 N.Y.2d 248, 254 [1981]). That is not "proof to a mathematical certainty, or proof beyond a reasonable doubt." (People v. Mercado, 68 N.Y.2d 874, 877 [1986]). But it means "that behavior which is susceptible of innocent as well as culpable interpretation" will not "constitute probable cause." (People v. De Bour, 40 N.Y.2d 210, 216 [1976]). In adjudicating the objective circumstances, a court must deal with "the factual and practical considerations of everyday life on which reasonable and prudent [people] act." (People v. Grimes, 51 A.D.2d 625 [3d Dep't 1976]).
With these principles in mind, the court turns to this case. The police allege that they arrested Mr. Hamlett for trespassing. "A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises." (P.L. § 140.05). The defense primarily argues that the police had not yet developed probable cause because there was no indication that Mr. Hamlett was knowingly trespassing. The People respond that knowledge is "irrelevant" because it is an "element" solely for trial, "not at this time for [the court] to decide." (See Tr. at 44).
The court first rejects the People's statement of law. Although probable cause does not require direct proof of each element of an offense, it does require a belief that it is "more probable than not" a person committed the actual offense. (See Carrasquillo, 54 N.Y.2d at 254). That must obviously entail at least some presence of each of the offense's elements. Slicing off elements from the analysis leaves one with an anemic-and often, unreasonable (cf. U.S. Const. amend. IV)-understanding about whether the offense probably occurred. It also makes impossible the task of discerning whether behavior was "susceptible of innocent as well as culpable interpretation." (See De Bour, 40 N.Y.2d at 216). The mere fact that someone is driving, for instance, says little about whether they are driving while intoxicated. And trespass is not a strict liability offense. A person trespasses only if they are knowingly in a place they are not allowed to be. (P.L. § 140.05). "A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such a nature or that such circumstance exists." (P.L. § 15.05[2]). As a result, appellate cases upholding reasonable cause for trespass regularly refer to facts that suggest a person did so knowingly. (See, e.g., People v. Olivo, 76 Misc.3d 130 [A], at *1 [App. Term, 1st Dep't 2022] [finding "reasonable cause to believe that defendant knowingly entered or remained unlawfully"] [emphasis added]). A person's mere presence in a prohibited area does not necessarily give rise to probable cause of trespassing.
That said, in many cases, the objective characteristics of an area may allow for a reasonable inference that a person probably knew they were there unlawfully. Some areas have visible characteristics that demark them as off limits, like fences, (People v. Medina, 110 A.D.2d 786 [2d Dep't 1985]; or other barriers, (People v. Wright, 2001 NY Slip Op. 40185[U], at *2 [Crim. Ct., NY County 2001] ["Without alleging sufficient physical barriers, the People have not alleged enough to establish that defendant had knowledge that his presence was unlawful."]; People v. Outlar, 177 Misc.2d 620, 627 [Crim. Ct., NY County 1998] [same]). Some areas might inherently lend themselves to an inference that one is not supposed to be there, like a boarded-up house. (People v. Davis, 199 A.D.3d 1331 [4th Dep't 2021]). Or some areas might have signs posted on site or visibly nearby from which one can reasonably infer that the person knows the area should not be accessed. (See, e.g., People v. Wilson, 69 Misc.3d 133 [A], at *1 [App. Term, 1st Dep't 2020] [noting that a sign was "clearly posted on the entrance to the roof stating 'unlawful to enter roof'"]). Still, "[i]n order for there to be a trespass, there must be some basis to believe that an area that appears open... is not in fact open." (Wright, 2001 NY Slip Op. 40185[U], at *2).
But this is not such a case. Nothing about the top of the stairwell was physically marked as any different from any other part of the stairwell. The area was not physically blocked or closed off by any barriers, doors, or locks. In fact, the top of the stairwell appeared just as any other part of the stairwell. And it was as physically and easily accessible to anyone as the parts of the stairwell that everyone agrees are lawful to stand in.
Nor was there sufficient signage to infer that a person on the top of the stairwell probably knew they should not be there. There was no sign at the top of the stairwell that said the area was off limits. Nor was there any sign at the top of the stairwell identifying it as a restricted "roof landing."
The only particular sign that the officer could point to was one six floors below in the lobby entrance. But there was no testimony that this sign was posted conspicuously such that the court can presume a person at the top of the stairwell would have notice of its contents. (Matter of James C., 23 A.D.3d 262, 263 [1st Dep't 2005] ["Although the police officer testified that there were 'No Trespassing' signs in the lobby, he could not recall the specific location of those signs... we can only conclude that there were 'No Trespassing' signs in the lobby, not that they were 'conspicuously posted'"]; see also Outlar, 177 Misc.2d at 627 ["Without conspicuously posted signs, one cannot impute the essential element of knowledge for any degree of trespass."]; People v. Weatherspoon, 23 Misc.3d 1139 [A], at *3 [Crim. Ct., Kings County 2009] [same]; People v. Brunson, N.Y.L.J. Aug. 14, 1995 [Crim. Ct., Queens County 1995] [same]). Nor was there any testimony about the size of this sign that could suggest that someone probably saw its many contents. Even still, that sign is not exactly a paradigm of clarity; it lists fifteen different commands and does not define what constitutes a restricted "roof landing." That is a phrase for which there is documented ambiguity. (See Davis v. City of New York, 959 F.Supp.2d 324, 347-48 [S.D.NY 2013] ["The parties dispute whether the top of the stairwell was a 'roof landing.'"]).
Vague references to other signs posted elsewhere "throughout" the building are not helpful to analyzing whether the officer's conclusion of a knowing trespass was reasonable. There was no specific testimony about where any of those other signs were located, let alone that they were conspicuously posted. (See James C., 23 A.D.3d at 263). Without that information, it is impossible to discern whether it is reasonable to conclude a person at the top of the stairs may have seen them. (See People v. Ciccone, 71 Misc.3d 5, 9 [App. Term, 2d Dep't 2020] [without specifying "where the 'posted rules and regulations' were located, it cannot be said that the posted rules provided defendant with the requisite knowledge that he was trespassing"]).
Zooming out, it is clear why the officer's position here could not constitute probable cause. He sees two people at the top of a stairwell. That area is not apparently demarcated as off limits in any way. There is nothing physical about the top of the stairwell that signals to people that no one should be there. There are no signs in the stairwell that say that people should not be at the top. The area is easily physically accessible to anyone in the building. And there is nothing about the area identifying it as a restricted "roof landing." Despite this, having seen two people at the top of the stairwell, the officer immediately handcuffs and arrests both without asking even a single question. The officer's position is that he can do this to anyone who is at the top of those stairs-resident or nonresident. And it is that he can do so simply because some sign of unknown size and conspicuity six floors down in the lobby says, buried amongst fifteen different commands, that no one can enter a restricted "roof landing." For the foregoing reasons, the court disagrees.
The People failed to establish probable cause to arrest.
The motion to suppress is granted.
This constitutes the decision and order of the court.