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United States: Police May Arrest Divorcing Spouse for Trespass on Property to Which She Had Legal Title

(Aug. 21, 2009) The United States Court of Appeals for the Second Circuit has held that under certain circumstances, a police officer may lawfully arrest a person for criminal trespass on a property to which she has legal title.

Geneva Finigan separated from her husband, Robert Finigan, and moved out of their jointly owned home. While their divorce was pending, Robert changed the locks to their home. When Geneva learned that Robert was going to be away from the house, she gained entry to the home and began removing personal possessions. Deputy Sheriff William Marshall arrived on the scene in response to a report of a burglary in progress. He took Geneva into custody, even though she claimed she still had partial title to the home. She was later released without being charged. Geneva then sued Marshall for false arrest and abuse of process. Marshall sought summary judgment by virtue of qualified immunity. The trial court dismissed the abuse of process claim, but refused to do so with the false arrest claim.

The Second Circuit overturned the lower court's decision not to dismiss the false arrest claim. It found that under the circumstances Deputy Marshall encountered – Geneva no longer lived there, the Finigans were divorcing, Robert had changed the locks, Robert was not at home, Geneva had removed property, etc. – Geneva could be culpable of criminal trespass. The court said that the fact that Geneva owned partial title of the home did not give her a right to enter the home. Rather, the court explained, “a non-resident spouse who is a titled owner of a house and enters without the permission of the resident spouse may be convicted of burglarizing his or her own property.” (Finigan v. Marshall, No. 07-0964-cv (July 28, 2009), available at