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IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE.

The First Department, over an extensive dissent, determined detaining defendant while the police, after taking the defendant’s ID, checked to see if defendant’s girlfriend lived in an apartment, was not a seizure. Defendant had been seen (by the police) making quick trips in and out of an apartment complex. To determine if defendant was trespassing, the police went to the apartment where defendant said his girlfriend lived. The occupant of the apartment was shown defendant’s ID and denied knowing him. The police then had probable cause to arrest defendant for criminal trespass:

This Court has repeatedly held that in a trespass situation, a police officer may conduct a brief investigation to ascertain whether a defendant’s explanation was credible, and this does not rise to a level three forcible detention or seizure … .

In determining the lawfulness of police encounters, New York has long followed the four-level test illustrated in People v De Bour (40 NY2d 210, 223 [1976]). To determine a seizure under De Bour, “[t]he test is whether a reasonable person would have believed, under the circumstances, that the officer’s conduct was a significant limitation on his or her freedom” …. The dissent cannot point to any New York State case applying the De Bour standard to support the broad proposition that a seizure occurs whenever an officer retains a person’s identification. Although the dissent cites to several federal and out-of-state cases, those cases present different factual scenarios compared to the circumstances here, and are not controlling. People v Hill,  2017 NY Slip Op 04236, 1st Dept 5-30-17

CRIMINAL LAW (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/TRESPASS (CRIMINAL LAW, STREET STOP, (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/STREET STOPS (CRIMINAL LAW, SEIZURE, IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)/SEIZURE (CRIMINAL LAW, (IN A TRESPASS INVESTIGATION, DETAINING DEFENDANT AND RETAINING HIS ID TO CHECK WHETHER HAD, AS HE CLAIMED, VISITED HIS GIRLFRIEND AT A SPECIFIED APARTMENT IN THE COMPLEX WAS NOT A SEIZURE)

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