How A Sealed Arrest Can Get You Arrested In New York

Rosetta Cochran isn’t sure how long she was in the pitch-dark police van on a January night five years ago. It was cold and rainy, and she and the others taken into custody shouted and pounded on the walls of the van, trying to get answers. One neighbor started having a panic attack.

"I told her, 'Just close your eyes, and don't open them,'" Cochran recalled. "'Because if you’re in the dark, and you open your eyes, you’re gonna strain to try to see, and that’ll make it worse.' And that seemed to help her."

Cochran had been roused out of bed by the sound of police banging on the doors of apartments all around her. Peering through her peephole, she felt bad for the neighbors being busted—but glad she wasn’t one of them. Then, as she was walking back to her bedroom, her door got a knock too.

A plainclothes officer asked for her son. He wasn’t there. He asked for Rosetta Cochran. She said that was her, and she opened the door. Before she knew what was happening, she was in the hallway, under arrest and handcuffed to the handle of the garbage chute outside her front door. The officer didn’t search her apartment, though. She assumes he didn’t have a search warrant.

An officer transferred Cochran to the police van which drove her to the 77th Precinct stationhouse, a quarter-mile away. She estimates 40 or so people filled the station that morning. Officers slowly processed everyone, releasing all but the 12 people they charged, including Cochran.

“They told me I was one of the people not going home, and I started losing it,” Cochran said. She asked what she was being held for, and, as she recalls, an officer told her only that it had to do with drugs.

"Drugs?" she recalled indignantly asking the officer. "Never in my life have I had a record or been arrested for anything!"

But Cochran, a 51-year-old mother of seven, was forgetting something.

Every year, the New York Police Department arrests or issues criminal summonses to hundreds of thousands of people, the vast majority of them to people of color. Most are for misdemeanors or criminal violations, and a high proportion of them involve marijuana possession—even as New York state and city have reduced pot-related arrests and summonses and the penalties associated with these offenses.

Some cases still lead to convictions, but many are dismissed for a variety of reasons. Increasingly, offenses that used to be misdemeanors are treated like violations and punished with fines.

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Regardless, these encounters all create records, though those records are sealed if the case is dismissed or the person is acquitted. That means, in theory, no one in the public can discover even the existence of such a record, and that law enforcement authorities can locate the files but not access its contents without a court order.

Here are some of the things those records can contain: arrest charges, location of arrests, fingerprints, photographs, detailed physical descriptions, Social Security numbers, date and place of birth, residence and contact information, occupation, known associates and family members and their contact information.

“Once you generate records about someone, especially in our digital era, the records come to have a life of their own—often a very long and unintended life, beyond the function that they were generated for,” said Issa Kohler-Hausmann, a professor at Yale Law School and the author of Misdemeanorland.

“They can circulate in the public sphere. They can circulate for employers or landlords,” she said. “They can get in the hands of private vendors and get on a website like mugshots.com.”

And the problem isn’t only the public sphere, Kohler-Hausmann said. It’s also inside the criminal justice system, where police frequently use sealed records for investigations.

“There are a lot of cases where people were arrested or faced prosecution, and they were innocent,” said Jenn Rolnick Borchetta, from the Bronx Defenders. “We need to protect them, and we need to protect our values that people should be presumed innocent, and they shouldn't face the consequences [of an allegation], unless it's been proven in a court of law.”

Borchetta has filed a class-action lawsuit against the New York Police Department. She’s challenging its longstanding practice of downloading sealed records into the same databases populated by unsealed records. There, officers can access all records without distinction, whether sitting in the precinct at a laptop or in their cruisers with a smartphone.

As Democratic lawmakers and criminal justice advocates drafted a marijuana legalization bill earlier this year, they looked at what other states have done with the records of people arrested or convicted under laws that would now be repealed.

They decided sealing records wasn’t good enough.

“I prefer expungement,” said State Sen. Jamaal Bailey (D-Bronx), chairman of the Codes Committee. “People deserve to have their lives restored to before they were arrested for something that was effectively legal in other communities.”

And the bill authors decided the marijuana bill provided an opportunity to revamp record sealing much more broadly, too. So, they have proposed expunging all records that would otherwise be sealed, for all crimes, whether marijuana-related or otherwise.

“If you really want to prevent records from being used against people, then you need to expunge them,” Borchetta said.

Rosetta Cochran’s case shows the long shadow dismissed arrests can cast.

On January 30th, 2014, the morning after she was arrested, Police Commissioner William Bratton praised the “yearlong investigation that dismantled a drug dealing network that peddled crack cocaine less than a block from a middle school and instilled fear in local residents in and around the Sterling community."

It would take Cochran and her attorneys two and a half years to get this charge dismissed, and she would eventually win a false arrest settlement.

Her landlord, the New York City Housing Authority, still evicted her—though she still lives there while her eviction is under appeal. An agent from NYCHA accused her of harboring drugs.

“They said I was running a stash house,” Cochran said. “I could just cry.”

NYCHA has its own court system, with a lower burden of proof than criminal courts. During the proceedings, it emerged how Cochran came to be targeted in the drug bust. She’d been arrested two years earlier, she says, after her mother allowed a police officer into their home who was “looking for somebody who wasn’t on the lease,” and he conducted a search and found painkillers in a medicine cabinet that he determined were suspicious.

Cochran had recently been in an accident, and the case was quickly dismissed and the arrest sealed.

But not completely.

“The law says that anything from that case should be sealed,” said Anca Grigore, Cochran’s attorney, from Brooklyn Defenders. “Photographs were supposed to be destroyed or returned back to the defendant or her attorney.”

Cochran’s photograph was not returned, a failure that criminal defense lawyers say occurs frequently.

During eviction hearings, Narcotics Detective James Rivera testified about how that photograph surfaced—and helped ensnare Cochran.

He coordinated the investigation leading up to the big Sterling Place takedown with an undercover officer—listed only as "C0098." He used the picture in an array, or photo lineup, to identify Cochran as the woman who purchased cocaine from him as part of the sting.

“I accessed the New York City Police Department records for 1506 Sterling Place to show me if anyone at that location has been arrested,” he testified. “I took some photos of females that had been arrested from that building and put them together to show the undercover C0098.”

Officer C0098 picked out Cochran’s image.

But key details from C0098 didn’t match what was on the arrest warrant, including the location of the apartment within the building. He also described purchasing cocaine from a woman who was 50 pounds heavier than Cochran.

Rivera appears to have used the database information on Cochran in his arrest warrant for her, not what C0098 found in the field.

According to a Gothamist report earlier this year, Rivera has been sued more than all but a handful of NYPD officers, and the $1.4 million in taxpayer-funded payouts to plaintiffs is the most of any active officer.

(Office of State Sen. Jamaal Bailey)

Under New York law, the records from arrests that are eventually decided "in favor of the accused"—basically, dismissals and acquittals—are sealed. This law is among the most protective of its kind in the country, at least on paper. When it was passed in 1976, Governor Hugh Carey wrote in his approval memorandum that “no individual should suffer adverse consequences merely on the basis of an accusation, unless the charges were ultimately sustained in a court of law.”

In recommending the measure to Carey for approval, the state Division of Human Rights wrote that expansively sealing arrest records would reduce the “unjust” and “disproportionately burdensome effect” of these records on “racial minorities.”

As written, the law has an almost metaphysical quality. Once records are sealed, it says, “the arrest and prosecution shall be deemed a nullity, and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution.”

Prior to the digital era, the law also had a very physical quality, too. “Sealing” was quite literal. Files would be taped shut and were often kept in locked cabinets in locked record rooms. Few people had keys, and officers and prosecutors needed to apply to a judge to unseal files.

In practice, however, the NYPD—one of the country’s largest and most influential police forces—interprets the law very differently.

Responding to the Bronx Defenders class-action suit, the city’s Corporation Counsel Zachary Carter argued that state criminal records law “does not prohibit access to or use of sealed records by a court, a police agency, or a prosecutor's office when the sealed records are maintained in their own files.” Therefore, he wrote, it can freely use sealed records “internally,” for investigations, without consulting a judge.

Borchetta estimates that more than 400,000 arrests between 2014 and 2016 would have been subject to sealing law and many are likely in NYPD databases.

Justice Alexander Tisch, in Federal court in Manhattan, decided against the NYPD. In rejecting Carter’s Motion to Dismiss, Tisch ruled that “to access and use sealed arrest information, the NYPD would have to ‘apply to a judge for permission’ and demonstrate to the court ‘that justice requires that such records be made available.’”

The ruling allows the lawsuit to proceed to discovery, during which Borchetta hopes to get a more complete picture of how many sealed records fill NYPD databases. The case could take years.

Legalizing marijuana has been one of the most ambitious goals for New York Democrats in the 2019 legislative session, now in its waning days. Governor Andrew Cuomo and lawmakers say the landmark shift would reduce the criminal justice system’s persecution of people of color, who use marijuana at roughly the same rate as whites but are arrested, prosecuted, fined and imprisoned much more often.

Within this context, “expunging” past convictions and arrest reports sounds much more thorough and reassuring than merely “sealing” them.

To expunge, according to most dictionaries, is to destroy, delete, erase or purge. It comes from the Latin word to prick, and by some accounts, refers to a process of pricking paper to physically excise an offending or inaccurate word or passage.

In contrast, though, New York’s proposed record-expunging law would largely be the same as the 1976 record-sealing law, except that where records once were “sealed and not made available to any person or public or private agency,” they now will be “marked as expunged.”

Photographs and fingerprints will still be required to be destroyed, as they have been, and retina scans and DNA material would be added to that list.

Emma Goodman, the Legal Aid attorney who helped draft the legislation, said there’s nothing in it that more explicitly limits police access to “expunged” files than to “sealed” ones. For political reasons, she and fellow advocates didn’t want to rack up even more objections from the law enforcement community to marijuana legalization than they already had.

But Goodman said there are other good reasons for the word-change.

Marking a record “expunged,” by itself, might not repel the NYPD—though, she said, “It's possible that police and others would understand the significance of expungement more than sealing and try to abide by the law more carefully.”

But the word “expunge” does, apparently, make the FBI sit up and take notice, constraining the bureau’s ability to place arrest reports and other records in searchable databases, where prospective employers or landlords can find them.

“Calling these records expunged does bring the sealing law into the 21st Century, in terms of using terminology other states and federal authorities understand,” Goodman said. “And ultimately, we’re talking about a psychological benefit, too. It does mean something of value for people to be able to say their record is expunged and not just sealed.”

(Clarissa Sosin / Gothamist / WNYC)

Cochran has lived in the Sterling Place Rehabs since the 1980s. The five-building complex blends into other low-rise pre-war buildings on two back-to-back blocks of Crown Heights. It’s not what many people picture as public housing: the scale is human and neighborhood-oriented, not bleak and stand-alone.

“It was a great place to raise children,” she said, sitting in the kitchen of her first-floor apartment, gesturing to the back door out to a large courtyard. “I could watch my kids from the window any time they wanted to play. They were safe.”

She has two sons still at home, ages 17 and 22, and five other adult children who live either nearby or upstate, where two of her brothers settled. As a single mother, she had help from family members and neighbors, but she often struggled. She’s held various jobs over the years, from housekeeper to “bus matron” for the developmentally disabled.

Her child-rearing years also coincided with the NYPD’s aggressive “Broken Windows” policing of the Giuliani and Bloomberg eras. It landed especially hard on her teenage sons. Police regularly combed through the complex. And since her apartment is not only adjacent to the courtyard but also sits on the entrance lobby—which frequently has front and rear doors with broken locks—she and her family were on the front lines.

“I have a bunch of boys, and they had friends, and [the police] basically labeled all of them,” she said. “They could just be standing out front, and the cops would throw everybody up against the walls to search them.”

Cochran never expected to stay in NYCHA housing for more than three decades, but even before gentrification began sweeping through Crown Heights, there were few options for housing a family her size.

“It’s almost $2,000 a month, maybe a little more,” to find a comparable apartment, she said. “That’s very expensive.

Cochran currently pays $463 a month and says she’s setting aside money for a future with higher rents.

The floor is sinking in some areas, some of the interior doors are broken, and NYCHA owes the unit a fresh coat of paint. But while the eviction is proceeding. Cochran tries not to raise much of a fuss.

“Every day I think about getting put out,” she said. “I'll be scared when I see a number from my lawyer calling me. I pray that it’s not [NYCHA] saying I’ve got to pack up and leave.”

Fred Mogul is the Albany and politics reporter for WNYC. You can follow him on Twitter @fredmogul.