Police lack probable cause to arrest for trespass when they know that the defendant is an invited guest of a tenant

HLAS attorney Philip Rothschild today obtained a reversal of a resisting arrest conviction in the New York Court of Appeals. The decision in People v Finch arose after Syracuse police repeatedly arrested Mr. Finch for trespassing at the Parkside Commons apartment complex. Mr. Finch was also charged with resisting arrest following the third time police arrested him. The mother of Mr. Finch’s son, who lived at Parkside, informed police during the first arrest that Mr. Finch had permission to be on the property as her guest. In an earlier appeal, the County Court reversed the trespass conviction. It said that Mr. Finch could not be a trespasser, because he was an invited guest of a tenant. County Court nevertheless upheld the resisting arrest conviction, finding that police had probable cause to arrest. The Court of Appeals disagreed and held that the County Court should have also reversed the resisting arrest charge. Because the officers were specifically told that Mr. Finch was an invited guest, and had permission to be at Parkside, they could not reasonably believe that he was a trespasser. They therefore did not have probable cause to arrest him for trespass. Since the arrest was unlawful, Mr. Finch could not be charged with resisting arrest.

In reaching this conclusion, the Court also held that Mr. Finch’s challenge to the sufficiency of the trial evidence of resisting arrest was preserved by an argument made by counsel before trial. “We hold that, where a defendant has unsuccessfully argued before trial that the facts alleged by the People do not constitute the crime charged, and the court has rejected the argument, defendant need not specifically repeat the argument in a trial motion to dismiss in order to preserve the point for appeal.”