the next case on the calendar is  allege the plaintiff intended to commit a burglary told n y p d to arrest plaintiff that he was trespassing so it's it's uncontroverted here the police were so sure so it's in the complaint paragraphs eighty nine ninety ninety four i believe other paragraphs as well but those are the ones have in front of me and it's uncontroverted the police here knew that capital one believed that this person mr jerk which was not in their bank with their permission that they did not want him there which is a definition of criminal trespass no it's correct that mr jerk which brings up a number of facts that he believes are relevant to his assertion that he did not know that he wasn't supposed to be in the employees customers or his employees into his soon for purposes or now knowing the motion that the employees left i mean the allegation is that there were two employees there when he went here right but not when the officers that might you know on a tall the six situation where there is no dispute the mr jerk which was the intended subject of the complaint that the officers arrived and they're sure this may have been an ambiguous situation perhaps there were a fax that would have supported mr jerk which is claim that he w passer in the bank then the bank itself or bank security they didn't need to conduct further investigation the law is clear that they didn't need to do so the investigation they knew from the bank that the bank believe mr trick which was trespassing the investigation would really have been to determine whether or not mr jerk which thought he was there on lawfully or believed he was there on an authorized basis and the law was clear that that question does not need to be answered before probable cause to arrest arri believe the case we said in every finnigan versus marshall this court's decision in that case the court held that it doesn't matter whether the knowledge requirement of criminal trespass is met before the arrest takes place as long as there is prime offici probable cause to arrest it doesn't matter and in that case the plaintiff was arrested while she was taking her own property out of the home that she owned but her strange husband resided in and she told the officer in that case i have title to this home this is my home i'm taking out my own property and my attorney said that i could do this the officer conducted no further investigation whatsoever he simply knew that the estranged husband didn't want her there and the court concluded that there was probable cause to arrest even though the plaintiff may sixteen are not men defense in a criminal prosecution because the one of the owners of the home said she is trespassing she does not have my authority to be here that's the exact same situation here cut that he must have known that mr jerk which believed he was authorized to be in the bank and that's really the question here and really the question is whether it's the motion to dismiss stage this is the time to to determine the qualified immunity issue we don't we have an allegation about a nine one one call but we don't know the contents of that call or any allegation the complaint that says if the caller had firsthand knowledge was reporting tenth level hearsay we don't know anything about that that at this stage be enough to require further inquiry well the law is clear that probable cause or both i mean he should be determined early in the course only as a possible stage at the  in the complaint are sufficient to determine as a matter of law and we believe they clearly are here yes it's true that the nine one one call although the dispatch report is in the record but admittedly we shouldn't consider that now but well the not well the record well the complete doesn't go into word for word what the one on one call said how could it it clearly alleges what the content of the car was that capital one or capital one has put it if he if the circumstances confronting the officer when he arrived at the bank loans that judge livingston just outlined were sufficient to call the nine one one calls and even words and see burglary into question isn't that enough  looking at the allegations of the complaint to get past the motion to dismiss stage at least into it require further inquiry only of the circumstance that confronted by the officers not by mr jerk which earlier but by the officers were sufficient  in here if you take the facts are so much more and more into circumstances plainly the tory hair and because seemingly was open and he was sitting there waiting waiting again you know much like someone who's just their customer notably they did not arrest him for burglary or honor they only arrested him for trespassing for trespass you don't need to be dangerous you simply need to be in a building where you're not allowed to be there and they inquire as to whether the person was trespassing just because someone is there you don't arrest them just like just for being present up i happened to read one reason why a police officer would but that doesn't mean every police are reasonable police officer would have to having that nine one one call in just be clear on who brought up the photos capital one the video the surveillance video is also in this record capital one didn't submit it and the video shows that there were no employees and how is it in the us in the record i thought we just  titled at this stage to look at the complaint in documents referred to by necessity and the complaint rate so the judge why question right the judge did bring up the photos in terms of the video it is referenced in the complaint because the complaint says the officer should have looked at the surveillance video had the officer conducted further investigation and looked at the video he would have seen that there were no employees present visible in the video is simply this person sitting in the bank now is there probable cause to arrest for burglary perhaps not but for trespass i believe so again this is not like the there's no allegation that the officers came into the bank and confronted customers and employees there there's only the allegation that one customer came in and left briefly before the officers got there and the question is that the circumstances confronted by the officers on the scene and in this case i think those circumstances were at the least in big us such that there was argo probable cause to arrest think you officer officer shuddery has brought this case before the court asking this court at this junction in a very which i believe i submit to the court is a very premature stage in this complaint is the center's this says upon information and believe that an employee of capital on called nine one one we do not then go on to expound on the content mind and  other things that are mentioned under each causes of action that were brought against capital one because as well you know this case was brought against both capital one as well as the police officers and new york city that was involved in this arrest and the section that your honor just mentioned relates to the reasonable inference that the plaintiff made based on the factual allegation part of our pleadings which is just does not detail the the act causes of action brought against just against the police officers that were involved in the arrest of mr churkin words you'll see that we do not allege the details of what was communicated to that particular police officer here the appeal is being brought on behalf of officer we do not know by looking at the pleadings and if your honor were to give and you will give the plaintiff the appellee in this case and you  at the facts in light most favorable to us as well as give us the reasonable inference that is due to us and if you do that then you will see that just like judge chin just brought up to the appellate you cannot know what this particular officer knew at the communicate the content of the call what was what was in his possession what knowledge was in the possession of that arresting officer we don't know and that was a reason that pamela chant the district court judge deny the  by looking at the pleadings your honour's can see that that particular information was communicated to the arresting officer who's the appellant client officer shot and and then officer arrives that the bank and nine forty in the morning on a friday the doors to the bank are open there are people milling around but not a lot but there were two people mr hellman by the a machine inside the vestibule he also remember seeing two other employees of the bank inside the bank he's sitting down he's not dressed like a homeless person he's just sitting down and just very calm there he's not intoxicated or visibly under any influence of anything and he substances and the officers arrive and that say that you take the pleadings and you say ok this particular officer had in his mind that there was a trespasser in the bank but he gets there but upon seeing what i just described with the lights on weekday nine forty in the morning doors unlocked everything seemingly calm and matter of course nothing out of ordinary and do does that officer at that point have probable cause even arguable probable cause to arrest somebody who was sitting there no other way of saying of course is it plainly incompetent would any reasonable officer not have acted on information from nine one one if we checked the allegations capital one defendants allege that the plaintiff intended to commit a burglary capital one defendants allege that plaintive was trespassing and committing burglary if we add those allegations then from the of your mitts against capital one as factual allegations in this complaint seems to me hard to say that any competent officer would have would have failed to act on those allegations as you note officers are not required to fully investigate the incident at the scene if they have probable cause and here they have a victim saying that there's a man inside the bank who's not supposed to be there your  honor that is true that the arresting officer upon arrival at the scene does not have to fully investigate but if if it if that particular officer was told there is a burglary going inside a bank the bank is closed and there is a burglar inside the bank and he arrives at the scene and he finds the doors unlocked not just one door but two doors and we say that in our pleadings two doors are locked the lights are on nine forty in the morning and mr jerk circlets is merely just sitting down calmly then one paragraph says burglary once is trespassing what is white what about the scenario you described is inconsistent with trespass your honor i just like to point out that that is what you said to me just now that in one paragraph that we are making inference that maybe the call was about a trespass the next paragraph our inference is that maybe the call was about burglary that is precisely the the problem here that this motion that was brought here is very very premature and they're asking this court to sway away from what this court as well as other district courts have done in the past that in a motion that's brought before this court or other district courts as a twelve b six motion when discovery has been done when the when the officer arrives there that should have alarmed him and any other reasonable police officer that it was not what the call was about now you're on i like to just distinguish this case from the other cases where officer arrives at a department store because there was a call about shoplifting is it and the caller of who is a security officer says that's the person who took it didn't pay for it he's right there there's a communication between the officer and the putative victim and there is an identification and a description details given to the police officer other cases where twelve b six motions are granted a situation where police officer arise arrives at a home pursuant to a domestic violence call the complainant less is a wife and i do remember seeing a case of this this description the wife says says may complain over the phone when the police officer gets to the house in front of the person who ends up getting arrested the wife again makes the same complaint to the police officer now and that point in that case the police officer does not have to duty to go further and investigate and weigh the credibility of both the complainant as well as the you know the to be defendant but those cases are very different from my case here your hon officer got there did he speak with the caller or the caller supervisor or the caller's messenger that the police officer know that there were other people inside the bank besides mr jenner how magickal would none of that we could know is there a particular case that you think we should look to yes many cases what's the strongest one you say would support your view that no reasonable officer would have taken this position no arguable causes objective matter review of this complaint sure your honor i would like to submit to you several cases i will start out with you just give us your strongest i'm sure they're your brief if you can point to a judge  this is a second circuit court of appeals case from nine hundred ninety nine opposer versus court officer she'll number two zero seven and this particular motion was also made under twelve of the six i mean the appeal was and was the site of that case the site of this case is one sixty f third for zero nine and your honor may i just give you one other case and this other has to know exactly what a victim repeated a victim communicated to nine one one in order to have probable cause instead with our officer role he knew that capital one the bank bank security had made this complaint of trespass and burglary possible burglary y of the complaint or the call that there is a duty to investigate here given the circumstances isn't it plausible that the circumstances raised some sir well no you're on our side i'm here to cash my check well i think it's clear that the business owner is communication to police that a certain individual is not on their premises with their authorization constitutes s confirming that it called nine one one to report that the plaintiff was trespassers no factual dispute here the allegations of the complaint square with capital one submission that the plaintiff was the subject of the complaint of the nine one one call  yes it is possible to imagine a situation where the police could have gotten there and there was evidence that was so plainly exculpatory that they should have questioned the rest of the nine one one caller but we would submit that that is not the case here the need to be close it's not to be clear that the bank was closed a business owner can assert to police that someone has trust passing in an open business if the business owner does not want that person to be there but here we believe that there was article prob have intent for criminal trespass right the defendant the person arrested has to know that he is in a place where he's not licensed to be a criminal conviction yes but the case law is clear and again  finnigan versions marshall five seventy four f thirty fifty seven in that case the court clearly held the knowledge of parliament does not need to be satisfied there can be extreme ambiguity the plaintiff can even be telling the officer look i have title to this home i'm allowed to be here but there is still probable cause to arrest thank you thank you both