850.00   ENFORCEMENT ON PRIVATE PROPERTY

Refer:    

• ORS 164.205  Persons in Charge, define
• ORS 164.245  Criminal Trespass II
• DIR 830.00 Arrest Without Warrant
• Authorization Letter, Private Premises, Criteria for Exclusion (Complaint Signer)
• Document Appointing Trespass Control Officer (Complaint Signer)
• Notice of Warning and Rights (Complaint Signer)
• Trespass Form, Notice of Exclusion (Complaint Signer)

POLICY (850.00)

Members may act on behalf of the owners of private and public subsidized premises if the procedures and criteria described in this directive have been established by the premise owner before a member acts. These procedures will specifically detail how members are authorized to act as persons in charge on private premises, as defined in ORS 164.205(5), and will only apply to the enforcement of trespass procedures under ORS 164.245.

Members will be trained and certified in the application of this procedure prior to becoming persons in charge.

Members are reminded that landlord tenant laws apply in all cases involving tenants, and landlords should be encouraged to follow the established procedures for eviction (F.E.D., 72 hours and 30-day evictions, etc.).

Nothing in this order removes a member’s ability to act when dealing with other criminal matters observed on private premises during the course of his/her duties.

Due to periodic court rulings, parts of this directive may not apply. Members will follow the most recent updates issued to members by the City Attorney’s Office.

PROCEDURE (850.00)

Directive Specific Definitions

Criteria for exclusion: A list of non-constitutionally protected behaviors compiled by the controlling agent or owner of a premise upon violation of which a nonresident may be excluded from the common areas of the premises.

Exclusion Maintenance File (EMF): A file maintained at precinct level on hard copy and/or computer disc, and monitored and updated by a person or persons designated by the precinct commander. This file will reflect the same material as outlined in the TCO’s file and pertain to the private premises within the precinct jurisdiction.

Multifamily housing premise: A large apartment or other complex providing multi-housing units to tenants and generally having common ground areas in between the units: parking lots, courtyards, and play areas designed for use of tenants.

Nonresident: Any person who does not lawfully reside on the premises.

Person in charge: A representative or employee of the person who has lawful control of premises by ownership, tenancy, official position or other legal relationship.

Premise: Any building, real property, and/or common area whether privately or publicly owned. Premises will not be meant to include City of Portland public rights of way such as public streets and public sidewalks adjacent thereto.

Trespass Control Officer (TCO): An individual designated by the controlling agent or owner of a premises who has the authority to process criminal trespass complaints. The TCO will also arrange for, and/or act as, a hearing officer to those individuals seeking appeal of trespass notices. The TCO will also maintain and update necessary files.

Landlord/Owner/Agent in Charge Responsibilities (850.00)

The owner or agent in charge of a premises (legally designated as such) should reassert control over all areas deemed common areas within the complex; (i.e., laundry rooms, common courtyards, private sidewalks, hallways, etc.). This should be specifically detailed in all rental contracts and leases. This is known as the Lease Enabling Provision. The assertion of control by owner (usually left out of leases) is to ensure the owner is the person in charge of these common areas under ORS 164.205(5). An example of a lease enabling provision is: “The (premises corporation, landlord or owner’s name) retains control over any common areas of the (name of premises) for the purposes of enforcing state trespass laws and shall be the person in charge for that purpose as that phrase is defined in ORS 164.205(5).”

The addition of this provision to the lease or contract must apply to all new tenants. In order to ensure current tenants are also notified of the owner’s claim to the common areas, the owner or their agent should have all current tenants sign a similar provision. They will also have to follow any and all in-house and possible statutory rules for changing leases, contracts, etc.

In addition to the lease enabling procedure, landlords should also include an enabling procedure sufficient to prohibit individuals from establishing residency without prior landlord approval.

In that this suggested procedure may affect the rights and obligations of the parties in the existing lease/rental agreements, landlords should always be referred to a private attorney for any review of amendments or enabling provisions to the new lease/rental agreements.

The landlord may enable the manager alone to be the person in charge for trespass purposes. If members are to be allowed to make arrests for trespass on behalf of the owner, the owner or their designee must also empower the Bureau’s members to act as persons in charge upon their premises for the purpose of enforcing trespass laws. This is to be done by a formal letter written to the Chief of Police or precinct commander authorizing the sworn members of the Bureau to act in the described manner.

The premises owner or their agents will include, along with the above letter, a Criteria for Exclusion agreed to by the owner(s) as grounds to exclude nonresidents from their premises. These criteria can include a variety of obnoxious, violent, or dangerous activities. It should not, however, be so limited in scope as to be ineffective in addressing the nonresident’s behavior these procedures are to address.

The premises owner or their agents will then assign a TCO. This assignment will consist of a formal document authorizing a particular person, on behalf of the owner, to act as the TCO. The TCO will process the exclusion forms, usually on site or at a local office, and ensure that a current file is maintained of excluded persons. The TCO will also receive appeal requests by excluded parties. The TCO will notify the precinct whenever an appeal on an exclusion is pending. The TCO will also notify the appropriate members immediately of any persons excluded from the premises that were successful in their appeal process. The notification by the TCO to the person controlling the precinct EMF must be by telephone within 48 to 72 hours, followed by a letter to the precinct confirming any modifications or voiding of the exclusion. These notifications will always be the responsibility of the landlords or their designee. In addition, the TCO will give formal documentation to the successful appellant indicating they can return to the premises. The TCO will advise the successful appellant to carry the documentation on their person.

The owner or their designee will provide a camera and film, a supply of trespass forms and a place where a list of current excluded persons can be posted at each premise. They will also supply detailed maps of their premises.

Exclusion Process - Sworn Member Responsibilities (850.00)

a.  When a member responds to the participating premises and has reasonable suspicion to believe that:

1.  The person to be contacted is a nonresident.

2.  The person has violated the criteria for exclusion on the premises or is violating the criteria for exclusion on the premises, and then the member is empowered to contact the nonresident and advise the nonresident of the violation of the criteria for exclusion. Unless the nonresident violator has committed a criminal offense for which a detention, stop, or arrest may be made, as discussed below, the contact by the member is limited to mere conversation.

b.  The member is then empowered to complete the exclusion form specifically detailing the justification for the exclusion.

1.  Arrests for offenses and issuance of exclusion form: When making an arrest for an offense, the member will complete the necessary reports (Custody, Investigation, etc.). If the member decides to exclude the person as well, a Special Report outlining the exclusion for each person arrested will be completed and attached to the Exclusion Form. These documents will be forwarded to Records along with all other reports related to the incident. The member will forward one copy of the Special Report and Exclusion Form to the person assigned to the precinct EMF and one copy to the private premises TCO.

2.  Exclusions issued without arrests: In these cases a member will file a Special Report and attach the Exclusion Form with the same distribution as above. Members may exclude multiple persons on one Special report when no arrest is made on any one individual (see above).

3.  Report requirements.

a)  In each Special Report written concerning the original exclusion, the member will write in the Location of Occurrence box only the landmark designation. If, on private premises other than HAP premises, the landmark designation will be PPE (name of complex). PPE will be the designation for Private Property Exclusion. Members will not include the mailing address in the formatted boxes of the report.

b)  In addition, when coding the excluded person on the original Special Report the members should use the code EX in place of SB or A1, etc.

c)  In all other subsequent reports related to the exclusion (i.e., trespass arrest with Custody and Investigation Reports), the mailing address is to be used rather than the landmark designation.

d)  Additionally, members should make an effort to refer the trespass arrest to the original exclusion case number.

e)  These reporting procedures will standardize PPDS data processing and provide clear and concise computer printouts. This becomes important when determining who is excluded from a premise. It is also necessary for the timely updating of files and site lists for both members and managers.

c.  The member will then provide the excluded person a map of the premises he or she is excluded from. This is to ensure that there is no confusion later as to where the individual was not allowed to return.

d.  The member will take a photograph of the excluded person and include it with a copy of the exclusion form for the on-site office (usually the manager’s office). The member will notify the excluded person of his/her right to appeal the exclusion which is noted on the back of the form.

e.  It must be emphasized, unless the person to be excluded is also to be arrested for a criminal offense, the member has no legal authority to detain the person to be excluded under the following examples:

1.  The person to be excluded observes the approaching member and flees the premises.

2.  The person to be excluded, during mere conversation, refuses to identify themselves. Even though no right to identify them exists, they can, nonetheless, still be excluded. In these examples, a member can still shout the exclusion to the fleeing person; or, can tell the person to be excluded who refuses identification, that he/she is not allowed to return.

Trespass Arrest Process (850.00) Refer to DIR 830.00.

If a member observes a person known to be excluded from a premise, a criminal trespass arrest may be made. The member will process the trespass arrest in the usual manner with the following additions:

a.  The member will attach a copy of the premises map to the report. An (X) will be placed on the map specifically showing where the person was on the common areas of the premises at the time of the arrest.

b.  Copies of the reports will be forwarded to the complaint signer, EMF and TCO.

c.  This person has been excluded from the common areas on private premises under the new authority of a person in charge for this private premise. Therefore, the person can only be arrested for criminal trespass if he/ she is trespassing on that private premise. If the individual is on a public street or public sidewalk adjacent to the private premises, an arrest is not lawful.

Records/Data Processing (ITD) Requirements (850.00)

Records will make the necessary entries and assign PPDS offense codes. Members can retrieve information on excluded persons from PPDS by accessing the Address Search format and typing in the landmark name and the qualifier. For HAP premises the landmark will be Housing Authority of Portland. The qualifier will be the name of the premises. On all other private premises, the landmark will be Private Property and the qualifier will be the name of the apartment. The name of apartment will be decided upon at the time the private premises signs up for these procedures. The name selected needs to remain consistent for data entry and inquiry. While members can abbreviate Housing Authority of Portland to HAP or Private Property to PPE on their Special Reports, to have computer access and retrieval, members must spell the landmark and qualifiers exactly as shown.

Precinct Responsibilities (850.00)

a.  Each precinct will maintain an EMF. The Commander will designate a specific person for this task.

1.  The file will include every exclusion for a specific premise.

2.  The EMF will be updated to reflect any exclusions which are expunged by an appeal process as notified by the TCO.

3.  When requested, the EMF may be printed daily for members involved with specific premises. This list should be sent to, and maintained at, the on-site office of the premise in question.

4.  If desired, the EMF may be put into the precinct’s personal computer for ease of retrieval and updating.

5.  The EMF designee will maintain contact with the TCO to ensure that a current list is maintained.

6.  The EMF designee will maintain contact with the complaint signer to ensure their list is current.

7.  The EMF designee will forward copies of successful appeals to Records for PPDS update. The EMF designee will also write a Special Report for all insufficient cases in order to clear the involved persons from the PPDS exclusion file.

b.  The precinct may wish to pursue involvement in the appeals process, as outlined by the owner of the premise and carried out by the TCO.

c.  The precinct commander will create a return letter to any premise owner who requests to use these procedures. The letter will include:

1.  The names of the people assigned in the precinct to coordinate with the owners TCO.

2.  A request to have the premise owner’s private attorney review these matters.

3.  A notice that any civil issues raised by these procedures are the responsibility of the owner.

Complaint Signer Responsibilities (850.00)

The complaint signer will:

a.  Maintain files of all involved premises to include:

1.  A letter of empowerment authorizing sworn members to act as persons in charge of particular premises sites for the purpose of enforcing criminal trespass laws.

2.  A letter of declaration outlining the criteria for exclusion.

3.  A legal designation by the premises owner assigning a TCO.

4.  A return letter by the precinct commander.

5.  Maps of all involved premises.

b.  Keep a file of all copies of the Custody, Investigation or Special Reports with their corresponding exclusion reports.

c.  Maintain a list of excluded persons for each premises.

d.  Maintain contact with the precinct person in charge of the EMF to ensure they have the same updated lists.

e.  Can sign the necessary complaints for trespass arrests by members when such a process has been set up with the DA’s office.

f.   Will send the DA two (2) copies of:

1.  The foundation papers (see proceeding).

2.  The original exclusion form and the supporting police reports.

3.  The current trespass reports.

4.  A copy of the premise map marked (X) where the arrestee was at the time of arrest.

While these procedures were designed specifically to address the problems non-tenants bring to larger apartment complexes, members should remember this process can be adapted to other applications. For example, this procedure has been used in part, to control aberrant behavior in shopping malls and businesses within congested business zones.

Criteria for Exclusion from (Name of Premises) (850.00)

Any non-resident will be directed to leave and may be barred from returning to the premises within which that person:

a.  Makes unreasonable noise.

b.  Engages in fighting or in violent, tumultuous, or threatening behavior.

c.  Substantially interferes with any right, comfort or convenience of any (name of premises) resident or employee.

d.  Engages in any activity that constitutes a criminal offense.

e.  Damages, defaces or destroys any property belonging to (name of premises) or a (name of premises) resident or employee.

f.   Litters on (name of premises) premises.

g.  Drives in a careless or reckless manner.

h.  Consumes or possesses an open container of any alcoholic beverage on the common areas without being accompanied (meaning actual physical presence) by an adult (21 years or older) resident of that development.

i.   Violates the City’s curfew ordinances.

Any person who fails to leave the premises after being directed to do so, or who returns to the premises after being given such direction, will be subject to arrest and prosecution for Criminal Trespass under ORS 164.245.