Two anonymous 911 tips that a man was carrying a gun in the Bronx did not give officers reasonable suspicion to stop and search him, a divided U.S. Court of Appeals for the Second Circuit ruled Thursday.
Suppressing a gun seized from defendant Joseph Freeman during the early morning hours of April 27, 2011, two judges on the Second Circuit said police were unable to assess the credibility of an unknown caller and had no other information to corroborate the calls.
The decision in United States v. Freeman, 12-2233-cr, vacates Freeman’s conviction for being a felon in possession of a firearm under 18 U.S.C. §922(g)(1) and spares him a lengthy prison term.
Judges Rosemary Pooler (See Profile) and Christopher Droney (See Profile) made the decision on appeal from a bench trial on stipulated facts before Southern District Judge Paul Crotty (See Profile). Judge Richard Wesley (See Profile) dissented.
The first call on April 27, 2011 came into the 911 system at 1:36 a.m., with a female caller saying a Hispanic male wearing a black hat and a white t-shirt had a gun near the Chase Bank on East Gun Hill Road.
The dispatch picked up by Officers Joseph Walsh and Ryan Conroy said “a person possibly armed with a firearm” was “arguing with a female” near the bank.
A second call was received at 1:38, and the officers were en route when they heard a second description from the dispatcher that the suspect was a “male black” wearing a white du-rag, black hat and long white t-shirt.
The officers attempted to stop Freeman at 1:40 as he was walking along East Gun Hill Road. They got out of their unmarked car and placed their hands on Freeman’s elbow, but Freeman shrugged them off and kept walking.
At this point, Walsh put Freeman in a “bear hug” and then tripped him to the ground. Following a short struggle, police handcuffed Freeman and pulled a gun from his waistband.
Crotty found police had reasonable suspicion and denied Freeman’s motion to suppress on Dec. 13, 2011.
Freeman appealed to the circuit, where oral argument was heard on April 16, 2013, on whether the stop comported with Terry v. Ohio, 392 U.S. 1 (1968).
Writing for the court Thursday, Pooler said the majority rejected the government’s argument that Freeman was not seized until the police had placed him in handcuffs.
Freeman, she said, was stopped once he was placed in the bear hug “and thus the justification for the stop must have preceded Walsh’s grabbing of Freeman.”
Pooler distinguished the facts of this case from three others cited by the government, including United States v. Muhammad, 463 F.3d 115 (2d Cir. 2006).
In each case, she said, police ordered a suspect to stop, but he ran away instead.
And in each case, she said, “the reviewing court concluded that because the seizure was not effectuated at the mere command to stop, the ensuing flight provided the police with reasonable suspicion for the seizure once they had caught up with the fleeing individual.”
Turning to the anonymous calls, Pooler said they are “insufficient to provide the reasonable suspicion necessary for a valid Terry stop” unless the police have further corroboration that shows “the tip has sufficient indicia of reliability.”
But here, she said, there was no corroboration on the caller at all, as “The fact that her identity remains unknown unhinges the risk of consequences from the fact of the calls.”
“The fact that the call was recorded and that the caller’s apparent cell number is known does not alter the fact that the identity of the caller is still unknown, leaving no way for the police (or for the reviewing court) to determine her credibility and reputation for honesty, one of the main reasons tips from known sources are afforded greater deference than anonymous ones,” she said.
The important point for the court was that reasonable suspicion has to exist at the time the Terry stop is made.
“At the time this stop was made, and continuing to this day, the police did not know if they would be able to track down the caller, and thus, had and have no way of knowing whether the consequences for false reporting at all influenced this caller to tell the truth,” Pooler said.
She said that one factor cited by the district court, that Freeman was in a high-crime area during the early morning hours “are not individualized facts specific to Freeman. Nor do they enhance the reliability of the phone call by confirming it in some individualized detail.”
And as the police lacked reasonable suspicion, she said, “Freeman certainly had the right to ignore the officers and continue on his way.”
“If we accepted the government’s argument that such a simple refusal to comply could create reasonable suspicion where none existed before, we would create a truly paradoxical class of individuals: individuals who cannot be stopped by officers, but who can be stopped if they refuse to stop,” she said.
In his dissent, Wesley said he disagreed with the majority because “I believe the officers reasonably relied on the call and they had reasonable suspicion to stop Freeman.”
“This is not a case where a stranger in a muffled voice made a call from a pay phone, or where someone dropped off an anonymous note,” Wesley said. “The officers reasonably presumed that the caller could be identified.”
Wesley noted that the officers requested the dispatcher to call the tipster back to verify whether she actually saw a gun, and the dispatcher did call back but had no luck reaching the caller.
“The officers’ belief—the relevant focus in a reasonable suspicion inquiry—was that the tipster was a reachable individual, tied to a particular phone number and location,” he said.
Yuanchung Lee of Federal Defenders of New York argued for Freeman.
Assistant U.S. Attorney Rachel Maiman argued for the government.
@|Mark Hamblett can be contacted at email@example.com.