The People v. Eric R. Johnson, The People v. John A. DiSalvo, The People v. Costandino ArgyrisThe People v. Eric R. Johnson, The People v. John A. DiSalvo, The People v. Costandino Argyris
Lead Opinion
OPINION OF THE COURT
Memorandum.
In People v Argyris and People v DiSalvo, the orders of the Appellate Division should be affirmed. In People v Johnson, the order of County Court should be reversed, the suppression motion granted and the accusatory instrument dismissed.
Regardless of whether we apply a totality of the circumstances test or the Aguilar-Spinelli standard (see Spinelli v United States,
In People v Johnson, whether evaluated in light of the totality of the circumstances or under the Aguilar-Spinelli framework, the reliability of the tip was not established. The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated (see generally People v De Bour [La Pene],
Concurrence Opinion
(concurring). Four Judges agree that we should affirm in the first two of these cases and reverse in the third, but we disagree on the rationale. The issue that divides us is whether to apply the Aguilar-Spinelli test to stops that require only reasonable suspicion. We have never done so before, and I think we should not do so now, because the Aguilar-Spinelli test needlessly complicates and confuses the analysis of reasonable suspicion issues.
Under the rule established by Aguilar v Texas (
In applying the Aguilar-Spinelli rule, we have moderated the rigidity of the two-pronged test by holding that evidence corroborating the informant’s statements may, in some cases, satisfy either the basis-of-knowledge or the veracity/reliability prong (People v Elwell,
While we have attenuated the Aguilar-Spinelli rule in the probable cause context, we have not, so far as I know, even applied it before today where the issue was reasonable suspicion. We have decided several reasonable suspicion cases without any reference to the Aguilar-Spinelli rule (People v Moore,
Today, two of my colleagues would extend the Aguilar-Spinelli standard “to the determination of the legality of investigatory
Judge Abdus-Salaam’s opinion overcomes this and any other problems that the Aguilar-Spinelli test may present with a minute analysis of the evidence in these cases. In Argyris and DiSalvo, Judge Abdus-Salaam would find both prongs of the test to be satisfied, relying, as to both prongs, on the content of the recorded 911 call. In Johnson, she would find that the anonymous call did not satisfy the basis-of-knowledge prong, and that no corroborating evidence supplies the deficiency; she does not discuss the veracity prong in deciding Johnson, but she could easily reach a similar conclusion on that issue for essentially the same reasons. I generally agree with the analysis of the facts in Judge Abdus-Salaam’s opinion, but I do not see what is gained by dividing that analysis into two prongs. Using a totality-of-the-circumstances approach would lead us, more quickly and with less complexity, to the same place.
Concurrence Opinion
(concurring). In considering the legality of police searches and seizures instigated by hearsay information under article I, § 12 of the Constitution of the State of New York, we have adhered to the Supreme Court’s mid-twentieth-century jurisprudence on hearsay tips as laid out in Aguilar v Texas (
I write separately to suggest further guidаnce on the legal standards that, in my opinion, should apply to the determina
I
People v Argyris and People v DiSalvo
At about 2:15 p.m. on July 19, 2007, an unidentified man called 911. The man told the 911 operator that he was near a building at New Town Avenue and 31st Street in Astoria, Queens, and that, as he had come out of the building, he had seen someone with a gun. Specifically, the man said, “I saw a black mustang, brand new black mustang with like four guys and I saw one of them put in a big gun in the back of the car.” The caller reported the license plate number of the black Mustang. The caller told the operator that the car had “just [gone]” down the block to 28th Street and then turned right onto that street heading toward Astoria Boulevard. According to the caller, a grey van had been accompanying the car. When the operator interrupted the caller and asked whether he wanted to provide his name and telephone number, the caller replied, “No I don’t really want to, I just saw something and I say something like they say.”
When questioned about the men’s appearance, the caller said that they were “tall big bully white guys.” The operator inquired about the men’s clothing, and the caller said that he did not know what they were wearing. He did state, “I’m sorry . . . well, when the guy was putting the gun on the back of the car that I saw him [sic] ... so I just made, I play stupid and I went right into my car.” The operator asked whether the caller would wait for the police to arrive, and he responded, “Well, uh, do you want me to wait around for them?” The operator stated, “It’s up to you.” The caller said, “I don’t really have to,” adding, “OK?” The operator replied, “Alright,” and the call ended. The entire 911 call was recorded.
Around that time, Sergeant Bauso saw the Mustang and the van at a traffic light, and he pulled over at a bus stop and got out of his car to get a better look at the license plate number on the Mustang. After seeing that the license plate number matched the 911 caller’s description of it, Bauso allegedly pointed at the Mustang and called out, “Pull over.” The Mustang continued driving, and at a nearby intersection at 31st Street, the Mustang and the van went in separate directions. Bauso got back in his car and pursued the Mustang.
Meanwhile, Officer Valles saw the Mustang drive toward him and then turn onto 31st Street. Valles drove after the Mustang, and soon thereafter, he stopped it by using his car to cut it off. Valles called for backup, and he got out of his car and pointed his gun at the Mustang. Sergeant Bauso, his partner and about six other officers arrived, and as the backup officers trained their guns on the Mustang, Valles holstered his weapon and directed the occupants of the Mustang to exit the car.
Defendant John DiSalvo exited from the front passenger seat of the Mustang, and Officer Valles observed that DiSalvo had a gun in his waistband. Valles ordered DiSalvo to put his hands on the Mustang, and after DiSalvo complied, Valles handcuffed DiSalvo and searched him, recovering the gun and some cash. Valles then continued to order the occupants of the Mustang to exit one by one, and he handcuffed and searched each one. After the driver was searched, defendant Costandino Argyris emerged from the backseat wearing a bulletproof vest, which was visible underneath his sweatshirt. When Valles searched Argyris, he recovered a metal and leather club, as well as a switchblade, from Argyris’s person. Upon searching the car, Valles found a
Following their indictment on various weapons-related charges, defendants moved to suppress the items recovered from their persons and the Mustang as the fruits of an unlawful seizure. At a hearing held on defendants’ suppression motion, the officers testified to the facts set forth above, and the People presented the audio recording of the 911 call. Following the presentation of the evidence, Supreme Court initially issued a written decision granting defendants’ suppression motion, reasoning that, under the U.S. Supreme Court’s decision in Florida v J.L. (
Subsequently, the People moved for reargument and reconsideration of the suppression decision. The court issued a written decision granting the People’s motion and, upon reconsideration, vacating its prior suppression decision and denying defendants’ motion to suppress the physical evidence. Discussing the relevant legal framework, the court noted that an anonymous informant’s hearsay report of criminal activity may give rise to probable cause justifying an arrest if the report satisfies the two prongs of the Aguilar-Spinelli test. The court further observed that, because a tip that satisfies the Aguilar-Spinelli standard may support an arrest, such a tip may also be reliable enough to create reasonable suspicion justifying the lesser intrusion of an investigatory stop.
Under those legal standards, the court found that the 911 caller’s statements here were reliable enough to authorize Officer Valles to stop defendants’ car. The court determined that, because the 911 caller had provided an accurate description of the Mustang, the van and their location, his report established his credibility and thereby met the veracity prong of the AguilarSpinelli test. And, the court concluded, the caller’s statements demonstrated the basis of the caller’s knowledge, in satisfaction of the basis-of-knowledge prong of the Aguilar-Spinelli test, because the caller declared that he had personally seen the occupants of the Mustang place a large gun therein. The court also distinguished Florida v J.L. from this case. Additionally,
Thereafter, defendant Argyris pleaded guilty to two counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [1] [b]), one count of criminal possession of a weapon in the fourth degree (see Penal Law § 265.01) and one count of unlawful possession of pistol ammunition (see Administrative Code of City of NY § 10-131 [i] [3]), and he was sentenced to an aggregate determinate prison term of 3x/2 years. Defendant DiSalvo pleaded guilty to four counts of criminal possession of a weapon in the second degree (see Penal Law § 265.03 [1] [b]; [3]), three counts of criminal possession of a weapon in the third degree (see Penal Law § 265.02 [1]) and one count of unlawful possession of pistol ammunition (see Administrative Code of City of NY § 10-131 [i] [3]), and he was sentenced, as a second felony offender, to an aggregate determinate prison term of six years, to be followed by five years of postrelease supervision. Defendants appealed from the respective judgments against them, challenging Supreme Court’s suppression ruling.
The Appellate Division, Second Department, issued separate decisions and orders affirming the judgments in each case (see People v DiSalvo,
People v Johnson
At about 9:22 p.m. on October 1, 2011, a police dispatcher radioed Yates County Sheriffs Deputy Arlyn Cunningham, Jr. and told him that “a civilian had called 911 and stated that she believed that the driver” of a blue BMW with a particular license plate number was “sick or intoxicated” at the intersection of Route 245 and Sunnyside Road in the Town of Italy, which is near the border between Yates County and Ontario County. As far as the record shows, the 911 call was not recorded in any way.
Deputy Cunningham, in his marked patrol car, started driving south on Route 245 in search of the BMW. Cunningham drove to the intersection referenced in the 911 call, but he did not see the BMW. After “deciding] which was the most probable route of travel” for the BMW, Cunningham continued driving south on Route 245 and crossed into Ontario County.
Deputy Cunningham entered the Town of Naples, and he stopped at a stop sign at the intersection of Route 245 and Route 21. At the stop sign, he saw the blue BMW with the license plate number described in the 911 caller’s report. The BMW turned left onto Route 21. As Cunningham followed the BMW, that vehicle went a short distance and then made a “hasty” right turn onto Tobey Street. In particular, the BMW activated its turn signal at the last moment, made a wide right turn, went briefly into the lane of Tobey Street used by oncoming traffic and then quickly entered the correct lane. Cunningham turned onto Tobey Street and activated his emergency lights and siren. As Cunningham would later testify at the suppression hearing in this case, he pulled over the BMW based on his suspicion that the driver was driving while intoxicated and also upon his observation of the driver committing a traffic violation. However, Cunningham knew that he could not arrest the driver for the traffic violation because relevant statutes prevented him from arresting someone for a traffic violation outside of Yates County (see CPL 140.10 [2] [a]; cf. CPL 140.10 [1] [b]).
About half an hour later, Ontario County Sheriff’s Deputy David Drake responded to the scene, where he also saw defendant exhibiting telltale signs of intoxication. Drake had defendant perform three field sobriety tests, all of which defendant failed. Concluding that defendant had been driving while intoxicated, Drake arrested defendant on that charge and transported him to the station house. There, defendant agreed to take a breath test to measure his blood alcohol content, and the test results revealed that defendant had a blood alcohol content of 0.15% by volume — nearly twice the legal threshold for driving while intoxicated under Vehicle and Traffic Law § 1192 (2).
After being charged with several counts of driving while intoxicated, defendant moved to suppress his statements to the police and the results of the breath test on the ground that such evidence was the fruit of an unlawful vehicle stop unsupported by reasonable suspicion or probable cause. At a suppression hearing in Town Court, Deputies Cunningham and Drake testified to the facts described above.
Following the hearing, Town Court issued a written decision denying defendant’s suppression motion in its entirety. The court concluded that Cunningham had properly stopped and, with the aid of Deputy Drake, lawfully arrested defendant. According to the court, the 911 caller’s tip about a possible incident of driving while intoxicated had authorized Cunningham to follow and “close in” on defendant’s car. Once Cunningham saw defendant make a wide right turn, the court opined, Cunningham had “justification for the stop and investigation of a possible crime of DWI.” And, given that Cunningham saw defendant exhibit signs of intoxication upon stopping the car, Cunningham and Drake had the right to arrest defendant for
Defendant moved for reargument, which the court denied. Subsequently, defendant pleaded guilty to a misdemeanor count of driving while intoxicated (see Vehicle and Traffic Law § 1192 [3]), and he was sentenced to a six-month suspension of his driver’s license, a conditional discharge and various fines. Defendant appealed.
County Court affirmed the judgment. County Court decided that Deputy Cunningham had no authority to stop defendant for the traffic violation of making a wide right turn, saying, “Inasmuch as the deputy who [had] stopped the vehicle, Deputy Cunningham, did not view the defendant drive his vehicle in Yates County, . . . Deputy Cunningham was without authority to stop the defendant for a traffic infraction.” Nonetheless, County Court determined that the 911 caller’s tip had given Cunningham reasonable suspicion that defendant had been driving while intoxicated, thereby authorizing Cunningham to stop defendant’s car for that crime even in another county. Specifically, the court decided that, because the tip had accurately identified defendant’s car and approximate location, it was reliable enough to establish reasonable suspicion, especially when coupled with Cunningham’s personal observation of defendant committing a traffic violation. Thus, the court concluded that defendant’s suppression motion had been properly denied and affirmed the judgment. A Judge of this Court granted defendant leave to appeal (
II
A
To be reliable enough to establish probable cause for an arrest as a matter of state constitutional law, an anonymous hearsay informant’s report of criminal activity must: (1) provide sufficiently detailed information to indicate the informant’s reliability as an informant, or in other words, his or her veracity; and (2) convey information showing a reliable basis for the informant’s knowledge of the reported illegal activity (see People v Edwards,
Just as reliable hearsay can supply the police with probable cause, such hearsay can give rise to reasonable suspicion, which is the lesser level of suspicion required to authorize an investigatory stop of a person or a moving car under the four-tiered framework of People v De Bour (
The relevant changes in federal law originated in Alabama v White (
Subsequently, in Florida v J.L., the Supreme Court invalidated a stop predicated upon a bare-bones tip while suggesting that not all tips need the sort of predictive information discussed in White to be reliable. In J.L., an anonymous caller, whose call was not recorded, told the police that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun” (J.L.,
Given White’s and J.L’s reliability requirements for anonymous tips underlying Terry stops, we have subsequently abandoned certain aspects of our prior precedent permitting a stop based on “unsubstantiated hearsay” (Landy,
More recently, in People v Moore (
In Moore, we also said that “[a]n anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip” (id. at 499 [emphasis added]). However, that pronouncement was not essential to our holding. In deciding that the tip implicating the suspect was unreliable, rather than relying on the absence of predictive information, we cited numerous other aspects of the tip that called its credibility into doubt. Thus, our comment about the possible necessity of predictive information was dicta based on our understanding of
After our decision in Moore, the U.S. Supreme Court explained in Navarette v California that predictive information is not the sine qua non for the reliability of an anonymous hearsay tip under the Federal Constitution. In Navarette, a police dispatch team from one county in California relayed the contents of a 911 call to a dispatch team in another county (see Navarette, 572 US at —,
By a vote of five to four, the Supreme Court affirmed the California courts’ decisions denying suppression of the drugs (see 572 US at —,
The Court further determined that the tip contained information showing that the caller was telling the truth, including the contemporaneous nature of the tipster’s report and the officers’ success in corroborating the report’s description of the truck’s appearance and location within a short time of receiving the dispatch about it (see id.). The Court also stated that, since “a false tipster would think twice before using” an emergency 911 system that allows the authorities to obtain the tipster’s telephone number and to record the call for future voice identification, the instant tipster’s decision to make her report via the 911 system further reflected her veracity (572 US at —,
The dissenting Justices concluded that the anonymous tip was not sufficiently corroborated to establish reasonable suspicion (see 572 US at —,
Otherwise, the dissent concluded that little, if anything, demonstrated the reliability of the 911 caller’s report, and the dissent took issue with the majority’s reliance on the caller’s use of the 911 system, saying:
“Finally, and least tenably, the Court says that another ‘indicator of veracity’ is the anonymous tipster’s mere ‘use of the 911 emergency system’ . . . But assuming the Court is right about the ease of identifying 911 callers, it proves absolutely nothing in the present case unless the anonymous caller was aware of that fact. ‘It is the tipster’s belief in*1156 anonymity, not its reality, that will control his behavior.’ There is no reason to believe that your average anonymous 911 tipster is aware that 911 callers are readily identifiable” (572 US at —,134 S Ct at 1692-1694 [citations omitted]).
In light of the majority and dissenting opinions in Navarette, it is clear that, under the Federal Constitution, predictive information is not an essential indicium of reliability necessary to support a vehicular stop based on an anonymous tip, for the tip in Navarette included no such information. Rather, other factors, such as a tipster’s statement indicating that he or she personally observed someone engaged in suspicious behavior, may supply the requisite indicia of reliability that allow the tip to serve as the basis for a stop (see Navarette, 572 US at —,
B
In the wake of Navarette, the parties in the instant cases propose various state constitutional tests for determining whether an anonymous hearsay account of criminal activity is sufficiently reliable to authorize a brief investigatory stop of a person or his or her automobile. Defendants in all three cases urge us to hold that the State Constitution forbids a police officer to detain a suspect based on an anonymous tip unless the tip contains predictive information. In Argyris and DiSalvo, the People press for adoption of Navarette’s totality-of-the-circumstances analysis as the law of New York. Regardless of the proper baseline for the reliability of a tip supporting a stop, the People contend that we should not prevent the police from stopping a suspect based on a tip that complies with the Aguilar-Spinelli rule. In Johnson, the People ask us to overrule our prior decisions adopting the Aguilar-Spinelli test for the reliability of a tip in the probable cause context. Instead of the Aguilar-Spinelli standard, the People maintain, our state constitutional jurisprudence should employ the analyses in Gates and Navarette to determine whether an anonymous tip can create probable cause or reasonable suspicion.
In our existing search and seizure jurisprudence under the State Constitution, we have not set forth any clearly defined minimum standard of reliability in an anonymous tip that permits a police officer to conduct a De Nowr-level-three stop. Nonetheless, our long-standing practice of granting New York citizens enhanced protection against unwarranted police intrusions based on hearsay, which originally prompted us to incorporate the Aguilar-Spinelli rule into probable cause determinations, supports the extension of the Aguilar-Spinelli rule to the evaluation of a level-three stop.
In that regard, although the Federal and State Constitutions’ search and seizure provisions first arose from a shared fear that the sovereign might oppress the governed by arresting them upon “common rumor and report rather than upon proof of reasonable grounds for believing a crime to have been committed” (Elwell,
Although defendants find the Aguilar-Spinelli test too lax and the People characterize it as too strict, both criticisms principally derive from a shared belief that the test’s two prongs do not independеntly add much of value to the reliability determination and ignore other relevant indicia of reliability or flaws in a given tip. My concurring colleague shares this concern (see concurring op of Smith, J. at 1142). But our precedent readily answers those charges. As we explained in People v Rodriguez (
The People ask us to abandon the Aguilar-Spinelli test on the theory that its inflexibility has made it intolerably difficult for the police to comply with. The People claim that, because every state in the Union, save for New York and five others, has rejected the Aguilar-Spinelli standard and adopted the Gates analysis, those other jurisdictions’ experiences with the AguilarSpinelli rule must have proven that the rule is unworkable and wholly incompatible with effective law enforcement. However, while the considered opinions of other jurisdictions often carry significant weight in our evaluation of legal doctrine, I do not find the out-of-state authority cited by the People to be a sufficiently compelling basis on which to cast aside the AguilarSpinelli rule. Those out-of-state decisions do not compensate for the absence of proof that the Aguilar-Spinelli rule has intolerably taxed the New York law enforcеment community over the decades in which we have applied the rule. And, although it is generally desirable to maintain uniformity with the law of other jurisdictions when doing so does not compromise a significant public policy or legal principle unique to New York, we have already held that considerations of uniformity in the evaluation of anonymous tips must yield to “aims of predictability and precision in judicial review of search and seizure cases and the protection of the individual rights of our citizens,” which are “best promoted by applying [the] State constitutional standards” embodied in the Aguilar-Spinelli standard (Johnson,
For their part, defendants and my dissenting colleagues {see dissenting op of Rivera, J. at 1169, 1176-1177) interpret Moore as creating a state constitutional rule that, even where a tip meets the Aguilar-Spinelli standard, it cannot support the temporary detention of a suspect if it does not also contain predictions of the suspect’s future activities. However, for reasons I have already explained, Moore does not establish such a state constitutional rule. Nor do I now perceive any reason to create a special predictive information requirement under the
According to defendants, a predictive information requirement for the reliability of an anonymous tip is necessary to ensure that the police can “test” the credibility of the tip via their own observations of the behavior predicted by the tipster. However, when compared to other forms of information that satisfy the basis-of-knowledge prong of the Aguilar-Spinelli test, predictive information does not necessarily make the police more or less capable of “testing” the truthfulness of a tipster’s account of the crime itself at the constitutionally critical juncture; even when armed with predictive information, the police still must usually decide whether to seize a suspect before they can personally observe that the suspect has committed or will commit a crime as described by the tipster.
White illustrates this point. There, the tipster gave the police exact predictions of the suspect’s future movements and made an allegation that the suspect would be carrying a case full of drugs, but before detaining the suspect, the police did not personally observe her holding the case and were unable to test the truthfulness of the tipster’s report that she possessed drugs (see White,
In addition, a predictive information requirement would do little to eliminate the concern that a tipster will maliciously send false information to the police. In that regard, only people with unique knowledge of a suspect’s affairs, such as a close friend, relative, accomplice or insider in the suspect’s criminal scheme, can provide the police with predictive information, and consequently a predictive information requirement would force the police to rely exclusively on such insiders. Yet, contrary to defеndants’ apparent supposition, insider tipsters are no less likely than members of the general public to concoct baseless accusations of criminality as a way to harass a suspect. Indeed, one can conceive of many examples of a tipster who is familiar with a suspect’s plans and might forward them to the police, along with a fabricated report of criminal activity, to settle a score.
Defendants’ proposal to categorically forbid the police to conduct an investigatory stop predicated upon a tip that lacks predictive information would also place an excessive restraint on law enforcement. Because members of “[t]he general public” who witness a crime “ha[ve] no way of knowing” what the perpetrator will do next (see White,
In light of the considerations outlined above, I would conclude that the Aguilar-Spinelli test should govern the determination
Of course, a court’s finding that an anonymous tip is reliable under the Aguilar-Spinelli test doеs not end the inquiry into the lawfulness of a stop or arrest based on that tip. After all, “[e]ven a reliable tip will justify an investigative stop only if it creates reasonable suspicion that criminal activity may be afoot” (Navarette, 572 US at —,
m
Having laid out relevant state constitutional guidelines, I now address the application of those rules to the facts of the cases before us.
A
In Argyris and DiSalvo, I conclude that the police lawfully stopped defendants’ car based on an anonymous tip that was reliable under the Aguilar-Spinelli test and sufficiently detailed in its description of their criminal conduct to create reasonable suspicion. On the reliability front, the 911 caller who accused defendants Argyris and DiSalvo of having a gun in their car
Turning to the basis-of-knowledge prong, that prong can be established, as it was here, by an anonymous informant’s statement that he or she has just personally witnessed an unconcealed crime. Given that the report is allegedly contemporaneous, the police can verify some aspect of the informant’s reliability by confirming that the individual accused of criminality remains in the area reported by the tipster shortly after the tip has been received. By claiming personal knowledge, the tipster puts his or her own credibility on the line rather than seeking to hide behind a secondhand hearsay source; the tipster knows that, if the police arrive on the scene and see that the situation is not as described, they will discredit the tip completely rather than assume that the error resulted from the miscommunication of only a few details by another individual who transmitted the information to the tipster. Furthermore, from the claim of eyewitness information and the other contents of the tip, the police may discern whether it is plausible for someone to have personally seen the activities alleged under the circumstances in which they have purportedly occurred.
For those reasons, contrary to the contention of my dissenting colleagues (see dissenting op of Rivera, J. at 1177-1179, 1179-1180),
Since the 911 caller here stated that he had acquired eyewitness knowledge of defendants’ illegal weapon possession at around the time of the call, his report met the basis-of-knowledge prong. Indeed, the caller’s report was clearly contemporaneous, as he said that he was coming out of a building at his current location when he saw one of the suspects put a gun in the Mustang, and he added that the suspect “just went” down to 28th Street.
When the police surrounded the car with officers, drew their weapons and ordered defendants out of the car, they acted reasonable and lawfully out of a justifiable concern for their safety (see People v Brnja,
B
In People v Johnson, I conclude that the police unlawfully stopped defendant’s car based on an anonymous 911 call that did not set forth the basis of the caller’s knowledge of defendant’s alleged crime, as required under the second prong of the Aguilar-Spinelli test. The caller did not claim to have personally witnessed defendant illegally driving while intoxicated, and the caller neither made any prediction of defendant’s future behavior which might have suggested that he or she had insider knowledge of defendant’s affairs nor stated that he or she had learned of defendant’s acts from another credible source. In the absence of any such indicia of the basis of his knowledge, Cunningham improperly relied on the 911 call as a basis for stopping defendant’s car on suspicion of driving while intoxicated (see Spinelli,
In People v Argyris and People v DiSalvo, I find that the lower courts did not err in denying defendants’ suppression motion. In People v Johnson, I believe the lower courts erred in failing to grant defendant’s suppression motion. Accordingly, in People v Argyris and People v DiSalvo, I vote to affirm the respective orders of the Appellate Division. In People v Johnson, I vote to reverse County Court’s order, grant the suppression motion and dismiss the accusatory instrument.
Notes
. Elsewhere on 31st Street, Officer Castelli stopped the grey van. With the aid of backup officers, Castelli detained and searched the occupants of the van, as well as the van itself, recovering a variety of evidence and contraband in the process. The legality of that police action is not presently before us.
. Although the caller’s demeanor, as reflected in the call, adds to his credibility, the mere fact that he called 911 contributes little, if anything, to the credibility determination. In that regard, I reject the Supreme Court’s suggestion in Navarette that most people avoid giving false reports to a 911 operator because they know that the 911 emergency system can record their voices, telephone numbers and, maybe, locations (see Navarette, 572 US at —,
. Defendants do not include the words “just went” in their transcription of the call in their brief, but those words are discernable on the audio recording of the call admitted into evidence at the hearing. In any event, the context and contents of the call as a whole indicated that the caller was making a roughly contemporaneous report.
. In light of this conclusion, I do not reach the People’s alternative argument for upholding the stop based in part on the fellow officer rule.
. Defendant’s appendix includes an affidavit from the 911 caller, which she completed sometime after the call and in preparation for trial. In the affidavit, the caller revealed her identity and described the circumstances that prompted her to call 911. In the facts and argument sections of their brief, the People seek to focus our attention on the contents of this affidavit in the course of arguing that the tip’s reliability was established. However, the People failed to present this evidence to Town Court at the suppression hearing, and we cannot consider it. As we have repeatedly made clear, on a direct appeal, the parties in a criminal action are bound by the contents of the
. I do not mean to suggest that a driver’s commission of a traffic infraction cannot contribute to an officer’s suspicion of intoxicated driving. But, here, defendant’s specific conduct in committing the infraction could not have supplied him with enough additional suspicion to meet the legal threshold for reasonable suspicion.
. On appeal, the People do not argue that Cunningham could have stopped defendant based exclusively on defendant’s commission of the traffic infraction, notwithstanding that CPL 140.10 (2) (a) forbade Cunningham to arrest defendant for such a petty offense outside his territorial jurisdiction, or that the stop, even if it violated a jurisdictional statute, does not require suppression of the evidence (see Virginia v Moore,
Dissenting Opinion
(dissenting in People v Argyris and People v DiSalvo, concurring in result in People v Johnson). We have held that an anonymous tip supplies reasonable suspicion only if it “contains predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip” (People v Moore,
Where to draw the line separating permissible from forbidden police conduct inevitably requires courts to balance the interests of individual privacy and liberty on the one hand and public safety and security on the other. This is usually not an easy exercise with obvious answers. That is certainly the case here, where Judge Smith’s and Judge Abdus-Salaam’s concurrences and Judge Rivera’s dissent all make excellent arguments in support of the different standards that they espouse. And Navarette itself was a vigorously disputed 5-4 decision. I recognize, of
Dissenting Opinion
(dissenting in People v Argyris and People v DiSalvo, concurring in People v Johnson). In these cases we must decide whether police have reasonable suspicion to justify a forcible stop based solely on an anonymous informant’s uncorroborated “tip” that lacks any information by which to test the reliability of the informant or the information supplied. Information from informants, in particular anonymous informants who intentionally keep their identity secret and with whom law enforcement personnel have no known prior experience, is inherently suspect. The value of an informant’s tip has always depended on the credibility of the informant and the basis of the tip information. Where, as here, an anonymous informant makes unsubstantiated assertions about illegal activity, providing only generally observable descriptive information about the individual subject of the tip, but lacking predictive information of the subject’s criminal conduct, the tip alone cannot provide reasonable suspicion for police to effect a forcible stop.
Anonymous tips, nonetheless, may advance law enforcement purposes by providing information leading to an independent police investigation. In cases where an anonymous tip is confirmed by police work and personal observation, the tip, as corroborated, may supply reasonable suspicion, which is “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand” (People v Cantor,
In People v Moore, we held that in order to justify a forcible stop, an anonymous tip must “contain[ ] predictive information — such as information suggestive of criminal behavior — so that the police can test the reliability of the tip” (
L
The appeals before us involve information from anonymous tipsters, persons not known to law enforcement and who seek to conceal their identity. Anonymous tipsters differ from known police informants, whose identities are not secret, and with whom police may have prior experience as reliable sources of information about criminal activity. In either case, informants, unlike police officers, “are not regarded as presumptively reliable or honest” (Illinois v Gates,
In order to provide a basis for probable cause to arrest, or reasonable suspicion to stop and detain the subject of a tip, courts have applied tests by which to measure the tip’s reliability. The necessary indicium of reliability demanded in these cases focus on the informant’s credibility and the basis of the tip information.
The Aguilar-Spinelli test, drawn from the United States Supreme Court’s decisions in Aguilar v Texas (
In both Aguilar and Spinelli, the Court found the informants’ tips constitutionally insufficient. In Aguilar, the affidavit stated only that the police were informed by an unnamed “credible person” that defendant’s home contained illegal drugs (
In Gates, the Supreme Court abandoned the Aguilar-Spinelli test, demoting its two requirements to mere considerations in a broad “totality-of-the-circumstances” analysis (
The Court applied the totality of circumstances analysis in Alabama v White, where it held that in order for an anonymous tip to provide reasonable suspicion to justify a vehicle stop, the tip needed some “indicia of reliability” (
“[the defendant] would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would be in possession of about an ounce of cocaine inside a brown attaché case” (id.).
In Adams v Williams, the informant was known to the police officer when he approached the officer and advised him “that an individual seated in a nearby vehicle was carrying narcotics and hаd a gun at his waist” (
In Florida v J.L. (
The Supreme Court revisited the issue of the reliability of anonymous informants in the context of a drunk driving case. In Navarette v California (572 US —,
Our Court has also been suspicious of informants, especially anonymous tipsters, and thus demands that the informant’s reliability be established in order to justify probable cause or reasonable suspicion. Early on we “characterized the use of anonymous information to justify intrusive police action as ‘highly dangerous’ ” (People v De Bour,
“[a] citizen walking our streets should not, without more, be exposed to physical assault by a police officer on the basis of an unsubstantiated report of the mere possession of firearms volunteered by a*1174 stranger. To condone such conduct would be to expose innocent persons to harassment by pranksters and irresponsible meddlers” (People v Green,35 NY2d 193 , 196 [1974]).
In People v La Pene (
Even where the informant had provided reliable information in the past, we have declined to uphold a search where the police were only able to corroborate defendant’s identification, but not any details suggestive of criminal activity (People v Elwell,
“the rule under our Constitution should be that a warrantless search or arrest will be sustained only when the police observe conduct suggestive of, or directly involving, the criminal activity about which an informant who did not indicate the basis for his knowledge has given information to the police, or when the information furnished about the criminal activity is so detailed as to make clear that it must have been based on personal observation of that activity” (id. [citations omitted]).
After the Supreme Court’s decision in Gates, we rejected the totality of the circumstances test and, as a state constitutional matter, continued to apply the Aguilar-Spinelli test to probable cause determinations involving informants. Thus, in People v
Distinguishing between the two Aguilar-Spinelli requirements, we restated in People v DiFalco (
In three cases particularly relevant to the instant appeals, we imposed explicitly the predictive information requirement of J.L. to street encounters and vehicle stops. In People v William II (
In People v Rodriguez, the companion case to William II, an anonymous caller described a light-skinned Hispanic male, in his twenties, with black hair, wearing a black-and-white checkered shirt and jeans and allegedly carrying a gun. Two hours later the police saw the defendant, who fit the description, entering the back of a livery cab. Police stopped the cab and as they approached, defendant allegedly dropped a handgun out of the window. We held that the anonymous tip lacked predictive information, stating “the only basis for reasonable suspicion advanced before the suppression court for stopping the vehicle in which defendant was a passenger was that he matched the physical description provided by an anonymous tipster. Without more, the tip could not provide reasonable suspicion to stop the car” (id.).
In People v Moore (
In assessing the propriety of a forcible stop under our De Bour framework, we discussed the liberty interest at risk from investigatory stops based on anonymous tips. We observed,
“the very right to be let alone — the right of citizens not to be stopped at gunpoint by police, based on anonymous tips — is the distinguishing factor between the level of intrusion permissible under the common-law right of inquiry and the right to stop forcibly . . .
“. . . Under our settled De Bour jurisprudence, to elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain additional information or make additional observations of suspicious conduct sufficient to provide reasonable*1177 suspicion of criminal behavior” (Moore,6 NY3d at 500-501 [citations omitted]).
IL
Central to these cases are the requirements of reliability of the anonymous informant and the credible basis for the tipster’s information. Testing the reliability of the informant addresses whether the informant is truthful, and not motivated to fabricate. Confirming the tipster’s information reflects a principal concern that the information about criminal activity be based on facts and data which make it likely to be accurate.
Whether under the Aguüar-Spinelli test for probable cause, or the less demanding reasonable suspicion standard, the courts seek to ensure a tip is reliable in order to avoid police intrusions based on suspicion and rumor, or fabricated report of illegality. Unlike a known informant, an anonymous informant has no history with law enforcement, and no track record of having provided reliable information in the past. Deprived of the informant’s identity, the police have no basis upon which to conclude that the tipster may be trusted. As the courts have recognized, such tips carry the real possibility that individuals will be subjected to police intrusions on the basis of false information by someone who may escape prosecution. Thus, there is every reason to carefully scrutinize the anonymous informant and the tipster’s information, and to require corroboration that provides a basis for an officer’s supported belief of criminal conduct, taking into account that the source of the information is unknоwn and untested. Whether the inquiry is to confirm the existence of probable cause for a search or an arrest, or the reasonable suspicion to stop and detain, the tip must have an indicium of reliability.
Reliability may be provided by any number of factors external to the informant (see White,
In an effort to avoid the underlying rationale of our prior approach, the majority claims in Argyris and DiSalvo that the tip’s lack of predictive information is not fatal (majority mem at 1141). My concurring colleague, Judge Abdus-Salaam, goes so far as to describe as dicta Moore’s legal rule statement that an anonymous tip must contain prediсtive information before the tip may serve as reasonable suspicion to justify a De Bour level three seizure (see concurring op of Abdus-Salaam, J. at 1153-1154). Indeed, she expounds on this conclusion, arguing that the actual grounds for our decision in Moore were “numerous other aspects of the tip” that showed it was not credible (id. at 1153). This is a revisionist interpretation of Moore and one which distorts this Court’s central unambiguous holding that “the tip did not provide any predictive information” (Moore,
Judge Abdus-Salaam advocates for the adoption of the two-pronged Aguilar-Spinelli test. If she, in fact, adhered to the actual Aguilar-Spinelli test I might join her opinion, given that before today the Aguilar-Spinelli test imposed a higher standard than what has usually been necessary to establish reasonable suspicion in support of an investigatory stop.
However, the long-standing Aguilar-Spinelli test is not what my concurring colleague promotes. Instead, she embraces a
As described, it allows police, on a simple allegation that someone saw somebody do something, to stop anyone, regardless of age or physical condition; at any time, day or night; at any place, whether walking on a public street, sitting in a car, or entering one’s home or place of employment. No quotidian moment escapes potential police intrusion. The most basic and innocuous of chores and activities, such as commuting to work or school, purchasing food at the market, waiting at the laundromat, standing in line at the post office, visiting the library, browsing through records and books, or circling the neighborhood in a car looking for parking for what seems like an interminable length of time, may serve as the basis for an anonymous informant to claim criminal activity. So long as the informant claims to have been an eyewitness to a criminal act, the tip need not provide even a modicum of reliability as to the alleged illegality, even though the tip is communicated outside the physical presence of law enforcement personnel, asserted by an unknown individual who is unwilling or unable to provide identifying information, such as a telephone number, and whose veracity is unproven and unconfirmed.
The People in Argyris and DiSalvo claim that predictive information is unnecessary because of the anonymous informant’s alleged personal observations of the claimed criminal activity. As this argument goes, the informant is reliable because in addition to describing the car and the defendants, the informant said that he saw one of the men put a gun in the back of the car.
My concurring colleague agrees, and offers four grounds to support her conclusion (see concurring op of Abdus-Salaam, J. at 1157-1162). First, as the People here contend, predictive information is but one way to establish basis of knowledge under the Aguilar-Spinelli test. As such, an anonymous informant may establish basis of knowledge by a statement of personal observation of illegal conduct, as is the case in these appeals.
The appropriate response to the People’s argument is that of the dissent in Navarette to a similar claim of alleged personal
A simple example, comparing a tip from an informant who claims to have personal eyewitness knowledge to alleged gun possession, with a tip from an informant who makes no such assertion, reveals the strained logic of the argument. A self-referential statement of eyewitness observation of criminal activity, summed up in the words “I saw a gun,” sheds no greater light on whether the informant is to be trusted and the tip relied upon, than does the same statement, from the same informant, but without thе claim of having seen a weapon. In both scenarios, the police have only the informant’s word as to what occurred, and no way to confirm it, without engaging in independent police investigation.
Accepting self-verification based on no more than the informant’s bald unsubstantiated assertion goes against common sense because such statement proves nothing and adds nothing to the reliability analysis. It does, however, increase the risk of police intrusions based on fabricated information by legitimating police action that is based on an anonymous tip that says nothing more than “I saw something so I said something.”
My colleague’s second ground for rejecting a requirement of predictive information is that the requirement supposedly fails to assist police in testing the truthfulness of the informant’s account of the criminal activity prior to taking action against the subject of the tip. Yet, the fact that an anonymous tip may not provide police with reasonable suspicion of criminal activity is the very reason why courts demand more than unsubstantiated assertions from unknown persons. As has been the case for decades, where police receive an anonymous tip the police may
The third ground asserted is that predictive information will not eliminate the risk that malicious tipsters will fabricate reports of criminal activity, and may very well increase that risk. The reason being, that those most likely to have predictive information are those closest to the tipster’s target, and they are as likely as anyone else to make up a story. Moreover, where the informant bears personal animosity towards the target, the informant may be motivated to lie. This is pure speculation and conjecture. The reality is that the tests for constitutional sufficiency of informant tips seek to reduce the possibility of fabrication by requiring information that is intended to permit police and courts to weed out the genuine tips from those motivated by a personal agenda. Police have a long history of distinguishing the malevolent from the honest informant. That task is made harder when the informant is anonymous, and thus requires that police have information to assist them in determining what is a genuine source of reliable information.
As a fourth ground, my colleague asserts that a predictive information requirement would place an excessive restraint on law enforcement, imperiling public safety. Of course, we do not want to interfere unduly with police work. The concern as explained, however, sounds like fearmongering. Even if members of the general public who observe a crime have no way of knowing what the subject of the tip will do and cannot provide predictive information, that does not mean, as posited, that serious crimes would go unpunished. Unlike my colleague I place my confidence in a law enforcement system that relies on the work of police officials, trained and experienced in investigatory techniques, familiar with the street hustles and the fake claims of imminent danger, rather than in unsubstantiated tips from anonymous persons.
My concurring colleague, Judge Smith, opposes the application of the Aguilar-Spinelli test, and in its stead would apply the totality of the circumstances test (concurring op of Smith, J. at 1141, 1143). However, we rejected that federal approach in Johnson, finding our state constitutional standards better protected individual rights (see
III.
Some states and law enforcement have argued for years that tips about illegal guns should be treated differently, and absolved of the usual constitutional requirements of reasonable suspicion and probable cause (see e.g. J.L.,
In J.L., the Supreme Court rejected such entreaties to carve out a “firearm exception” that would permit a stop and frisk based on a tip that would not otherwise provide a constitutionally justifiable basis for the stop (id. at 272). After recognizing that “[fjirearms are dangerous, and extraordinary dangers sometimes justify unusual precautions” (id.), Justice Ginsburg noted that the Terry rule sought to address these concerns by permitting a protective police search based on reasonable suspicion rather than probable cause. She then stated
“an automatic firearm exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun” (id.).
“If police officers may properly conduct Terry frisks on the basis of bare-boned tips about guns, it would be reasonable to maintain [based on the case law] that the police should similarly have discretion to frisk based on bare-boned tips about narcotics. As we clarified when we made indicia of reliability critical in Adams and White, the Fourth Amendment is not so easily satisfied” (id., citing Richards v Wisconsin,520 US 385 , 393-394 [1997] [rejecting a per se exception to the “knock and announce” rule for narcotics cases partly because “the reasons for creating an exception in one category [of Fourth Amendment cases] can, relatively easily, be applied to others,” thus allowing the exception to swallow the rule]).
My colleagues go further because they would apply the totality of circumstances or Aguilar-Spinelli tests to all investigatory stops, not just those involving guns. Such approach risks the further watering down of rights in the future.
m
Turning to the instant appeals, in Argyris and DiSalvo, I would find that the anonymous tip lacked the indicia of reliability necessary to support reasonable suspicion to forcibly stop defendants. The informant provided descriptive information of the defendants, the car and van and the route they were taking when he last observed them. This information was readily observable to anyone on the street. The tip lacked predictive information as to the criminal activity alleged because the informant stated only that he had seen one of the men put a gun in the back of the car. Without more, the tip lacked information to establish the reliability of the allegation of gun possession.
To the extent my colleagues accept the veracity of the anonymous informant based on the informant’s word they ignore the primary lessons of federal and state cases that anonymous tips are inherently suspect and cannot, on their own, serve as a basis for police intrusions. Equally unavailing is my concurring
Here, because the tip on its own was insufficient to provide reasonable suspicion, the police were left to investigate and determine whether additional information confirmed the tip. This is what several officers did, and this was good police work because they were able to corroborate the descriptive information by personal observation. However, before they could corroborate the allegation of gun possession Officer Valles stopped defendants’ car at gunpoint. As the record makes clear, the only information known to Officer Valles when he initiated the stop was the contents of the tip: the descriptive information and the bare assertion of the presence of a weapon. Plainly, at this point, the police lacked reasonable suspicion to forcibly stop defendants’ vehicle. Therefore, despite the majority’s conclusion otherwise, there is no record support for the finding below (see majority mem at 1140). Indeed, even under a totality of the circumstances analysis, there are too few details in the aggregate to support a finding of reasonable suspicion (see id.-, see also concurring op of Smith, J. at 1143). As a consequence, the subsequent search was unlawful and the evidence seized during the course of the search should have been suppressed (see William II,
The anonymous tip in Johnson is also constitutionally deficient because it too lacked predictive information about the alleged criminal activity of driving while intoxicated, and the police failed to observe conduct that would suggest the tip was reliable. Based on slightly different legal grounds I agree with the majority that County Court should be reversed and the motion for suppression granted. I, therefore, concur in the result.
V
My colleagues accept a standard below any constitutional floor this Court has ever recognized. In so doing they reject Moore without legal justification or good reason. They also conveniently disregard our long-standing interpretation of our
In People v Argyris and People v DiSalvo: Order affirmed, in a memorandum.
In People v Johnson: Order reversed, defendant’s motion to suppress granted and accusatory instrument dismissed, in a memorandum.
. It appears that the informant did in fact give her name, but the prosecution failed to produce either the informant or the dispatcher who received the call at the hearing and, thus, the Court was inclined to treat the caller as anonymous (see Navarette, 572 US at — n 1,
. The anonymous informant in Argyris and DiSalvo used this phrase when speaking to the 911 operator, apparently a reference to public service announcements encouraging members of the general public that “if you see something, say something” as a response to suspicious items or activities (see generally If You See Something, Say Something, http://web.mta.info/mta/ security/ [accessed Nov. 13, 2014]).