United States v. Freeman

v. See also United F.3d 876. —

Stewart, Fed.Appx. -, No. 2013). (4th Sept. Cir.

2013 WL Alleyne not announce

Accordingly, did on collat rule of law made retroactive

new result, motion— review. As Shue’s

eral §a motion—is denied.

construed remaining examined Shue’s

We to be and find them without

contentions claims will of his

merit. Because none deny appoint- we his motion

proceed,

ment of counsel moot. reasons, mo- Shue’s foregoing

For the

tions are denied. America,

UNITED STATES

Appellee, FREEMAN,

Joseph Defendant-

Appellant.

Docket No. 12-2233-CR. Appeals,

United States Court

Second Circuit.

Argued: April

Decided: Nov. suspi-

hold that there was not reasonable cion Freeman and support de- suppression vacate his conviction. The reversed, cision and is remand- is the case to court. ed the district

BACKGROUND I. 27, 2011, at April approximately

On 1:40 a.m., City Depart- the New York Police (“NYPD”) responded ment to two 911 calls caller that a man reporting from the same gun. a certain had a matching description herself, identify The caller refused to and could re-contact her operator multiple attempts. on The 911 calls were recorded, and the number was identified Lee, Yuanchung Federal Defenders of phone, a cell the caller coming from but NY, York, Inc., York, for Defen- New New identity was identified. Her re- never dant-Appellant. mains The unknown. caller told male, operator Hispanic wearing a a Maimin, Rachel Assistant United States a gun, black hat and a white had t-shirt (Preet Bharara, Attorney, United States near Bank Hill the Chase on East Gun Attorney for the District of New Southern Bronx, Road in the The radio New York. York, Weddle, Justin S. Assistant United dispatch police received officers brief) York, Attorney, on New “a person possibly indicated that armed NY, Appellee. “arguing with a firearm” and was a WESLEY, POOLER, Before: and particular female” near a intersection in DRONEY, Judges. Circuit vicinity Bank. NYPD Chase Joseph Ryan Conroy Officers Walsh and

POOLER, Judge: Circuit responded eight” to the call from to “seven Joseph appeals judg- away. from a blocks While en to the loca- route tion, radio, police ment of the United States District over the which was audi- to Conroy, for the Southern District of New York ble another officer Walsh /.) (Paul Crotty, convicting repeatedly dispatcher verify A. him of one asked the possession “actually a firearm a the 911 caller saw count of whether a time, conviction, felony dispatcher in violation 18 U.S.C. firearm.” Each was § if 922(g)(1),following stip- a bench trial on unable to confirm that was ease. Conroy to suppress ulated facts. Freeman moved Walsh and arrived at the scene the firearm on the within minutes of the first call: the first discovered a.m., call at 1:36 grounds stopped system he without rea- came into was suspicion, description was primari- the.updated sonable as the from second a.m., Free- ly upon based call received at pair 1:38 man Incident stopped calls from the caller. district 1:40 a.m. 911 same E, Record, of Sarah suppress Exhibit Declaration court denied the motion Freeman, States v. United stipulated We proceeded Baumgartel, trial on facts. (S.D.N.Y. 11-er-567, 2011 No. WL 5419739 handcuffed Freeman and a gun removed 2011), they ap ECF No. 15. As Nov. his waistband. location,

proached heard anoth Walsh indicating that the dispatch er radio sus II. actually wearing pect was “male black” 17, 2011, On August Freeman moved hat, long black du-rag, white white t- district suppress court gun discover- dispatcher shirt. indicated that ed on the ground lacked had original caller called back stated stop him. The dis- “walking that the male was towards” and trict court concluded that the “standing then on the corner of Burke by was supported suspicion and [Avenue].” denied the motion to suppress. pre- To vehicle, From their unmarked argument serve his suppression appeal, for Conroy the Walsh and canvassed area Freeman his right by jury waived to trial Hill on East Gun Road between Burke agreed and a bench stipulated trial on Young Avenue Avenue. The and officers 13, 2011, facts. On December after Free- Joseph walking observed Freeman east- man stipulated of elements the of- East Hill Road bound on Gun and ob- indictment, fense charged in the the dis- served that he fit the most recent re- trict court him of guilty being found ported description. The officers drove possession felon in of a firearm in violation Freeman, past stopped their unmarked of 922(g)(1). § 18 U.S.C. Freeman now road, along car the side of and wait- appeals. ed for their approach Freeman car. vehicle, As past Freeman walked DISCUSSION out Conroy got passenger side Conroy approached attempted and him. appeal In an from a district Freeman, to speak to but Freeman did suppress, ruling court’s on motion to we walking, Conroy placed not stop so his legal review and find conclusions de novo hand on Freeman’s Freeman elbow. ings of clear fact for error. United “shrugged [Conroy] kept off’ and walk- Cir.2012). (2d 89, v. Ferguson, 702 F.3d Walsh, ing. who had since exited the of questions including Mixed law and fact— car, placed also his hand on Freeman’s suspi determination to reasonable elbow, again “shrugged cion—are reviewed de novo. United walking.”- and kept By off [Walsh] (2d 101, States v. 569 F.3d 105-06 Lucky, admission, Freeman officers’ own “never Cir.2009). This Court reviews under night.” ran from Af- [the officers] lying of “findings historical fact for walking upon ter Freeman continued be- give[s] weight clear ... error and due Walsh, ing grabbed touched Walsh inferences drawn those facts resi him gov- around the waist in what judges dent local law offi enforcement hug.” ernment now describes as a “bear States, cers.” v. United Ornelas grabbed After Walsh Freeman around 690, 699, 1657, 116 S.Ct. 134 L.Ed.2d waist, away. Freeman never broke (1996). attempted walking, He -to continue but tripped ground. Walsh him to After I. struggle, a short and with the assistance Morales, long-established rule Officer Under NYPD Humberto Ohio, partner Terry who on his v. 392 U.S. 88 S.Ct. arrived scene with Freeman, (1968), tripped may only Walsh L.Ed.2d 889 once occurs Fourth Amendment they have “reasonable when stop someone force “by physical officer means of or by articulable facts has supported way authority, afoot.” ... in some re- may be Unit show of activity criminal Sokolow, liberty Id. at 19 a citizen.” v. strained ed States (1989) (internal per- government, 104 L.Ed.2d n. 1868. The omitted). marks Reasonable to minimize the restraint quotation haps attempting specific Freeman, on placed must be “based now refers Walsh upon facts” not on “inchoate sus the waist grabbing Freeman around articulable picion hug.” or mere hunch.” United States him in a “bear This ursine placing (2d Cir.2000) 116, 132-33 201 F.3d to lessen re- Bayless, nothing does description omitted). (internal This quotation marks The conten- placed upon straint Freeman. totality of the cir grabbing will “look at the tion Freeman around that Walsh to see of each case whether not “in hug” cumstances in a “bear some waist detaining particularized way restraining]” liberty officer has is simply his objective suspecting legal wrong. Though struggle basis there a brief Arvizu, v. wrongdoing.” ground, United States in Freeman bringing Free- 266, 273, 744, 122 S.Ct. 151 man away 534 never broke once Walsh had (in (2002) added) (emphasis L.Ed.2d 740 placed his arms around Freeman’s waist. quotation marks citation omit physically ternal Freeman was restrained soon ted). this totality hug,” While we evaluate him grabbed in a “bear Walsh eyes a rea “through stop circumstances justification thus the for the must officer on the police sonable and cautious have preceded grabbing Walsh’s Free- scene, experience 20, train guided his man. id. at 88 S.Ct. 1868. See merely police do “not defer ing,” we likely push seeks to judgment.” Bayless, 201 at officer’s F.3d seizure in time in moment of the forward (internal omitted). quotation marks 133 reap order to the benefits of the decisions Moreover, “justified such a at stop must be D., 621, in v. Hodari 499 U.S. California 20, Terry, 392 U.S. at 88 inception.” its 1547, (1991), 111 690 113 L.Ed.2d Any events that occur after Muhammad, v. United States F.3d effectuated cannot contribute to the stop is (2d Cir.2006), States and United v. was analysis of whether there reasonable Cir.2005). (2d Swindle, In 407 F.3d stop in suspicion to warrant the first cases, each these ordered an police instance. but did stop person individual to Further, attempted flee. comply and II. case, each court reviewing concluded A. not effectuat- because seizure was matter, at stop, As an initial must ed the mere command to the ensu- we exactly ing police flight provided police with reason- first determine when Freeman, for the once in order to wheth able seizure seized assess fleeing had caught up there was for the with the individual. er applicable None cases inception.” Terry, “at its of these are stop case, 20, instant where never broke government urges S.Ct. 1868. The away police prior that Freeman from the or tried to flee this Court conclude was placed being stopped. previously until had as we police not seized hand Just Simmons, recognized in argument him. United cuffs on This cannot (2d Cir.2009), protection the cases triggering A seizure 560 F.3d 98 Ho- stand. D., Muhammad, Swindle, dari able suspicion necessary for a valid Terry White, See Alabama v. applicability no where the initial seizure stop. is away neither broken from or where the 110 S.Ct. 110 L.Ed.2d 301 (1990). individual does not flee Supreme before he is seized. Court further re- Simmons, See J.L., at Florida v. gov- 560 F.3d 106. The fined this holding attempted ernment’s reliance on this line U.S. 146 L.Ed.2d 254 (2000). of cases in the instant matter rests on the received a tip same misapplication precedent that “a young black standing male at a Simmons. Id. rejected in particular we stop 106-07. bus and wearing plaid carrying shirt was a gun.” Id. The rule from Hodari D.—the grounds S.Ct. 1375. Police arrived at stop the bus stop may for a ... be based on events shortly thereafter, a young observed black that occur after the order to shirt, male in plaid him, approached given, applied only been in cases —has him, frisked and discovered he carry- suspect attempts where the to flee from Id. ing gun There, pocket. his Ho- being ordered stop. that an anonymous held tip D., Swindle, dari and Muhammad all —even one that proved accurate in both the de- involved a show of authority, a scription appearance individual’s defendant who refused to comply location—is an insufficient basis for a Ter- fleeing, police pursuit, and a ‘seizure’ ry stop. Id. 120 S.Ct. 1375. The occurring at the moment the defendant Court determined that was uncon- physically restrained. gun stitutional and the sup- had to be Simmons, (internal at quota- F.3d pressed. omitted). tion marks citations The facts of ease, contrast, by involve an initial While “there are situations in approach by the police, followed almost anonymous tip, which an suitably corrobo immediately by physical seizure. Free- rated, exhibits sufficient indicia of reliabili struggle “arguably man’s short and suspi- ty provide to to make cious,” id. at 107, movement of his hands investigatory stop,” the such corroboration toward his waist came after the seizure did not exist in J.L. Id. at 270, 120 S.Ct. had occurred. As .the seizure occurred (internal omitted). quotation marks Freeman, once grabbed Walsh we will not There, anonymous the call lacked corrobo anything consider that occurred ration it “provided predictive because no moment in assessing whether there was information and therefore left police reasonable suspicion support to stop. without means to test the informant’s Having concluded that Freeman was Id. knowledge credibility.” 271, or grabbed seized when by around the waist stopA upon anony S.Ct. 1375. based an Walsh, we now consider whether there was tip mous is tip warranted where the is reasonable suspicion support to that stop established to “reliable in its be assertion Terry, inception.” 20, “at its illegality, just of tendency its to 88 S.Ct. 1868. Id. identify person.” determinate Anonymous 120 S.Ct. 1375. tips differ

B. from those for which the source is known Anonymous (1) tips, without further grounds: on two determinative ability police corroboration to credibility demonstrate to assess the reputation and for (2) tip that the honesty has sufficient indicia of reliabil tipper holding ity, provide are insufficient to the reason- reporting. informant accountable for false call The fact that was (citing Adams J.L. 120 S.Ct. 1375

Id. at Williams, apparent the caller’s cell recorded (1972)). Information is does not alter the phone 32 L.Ed.2d number known known can be assessed is identity from a informant of the caller still fact that (or reliability way in a information unknown, for leaving way for the no one cannot. simply court) from an unknown reviewing to determine her for the honesty credibility reputation for —one tips main from known reasons case, anony pair greater In this are afforded deference sources any calls to 911 lacked indicia anonymous mous than ones. Id. provide Moreover, and did not govern- while needed to the reasonable argues that the. fact that her number ment below

stop Freeman. The district court would allow to track is known now distinguish government attempt down, open could be her thus she case from that the call instant consequences reporting, she of false The J.L. to no avail. district court deter down, there never has been tracked so anony “truly the call mined that was not way determine that no for Court to phone mous” because cell number trace back actually the number would automatically system, the 911 recorded phone the individual who made the call. twice and based the individual called nothing suggest, There is offered call, conveyed in the upon the information example, phone prepaid that the was not eyewitness. govern the caller was phone, which would be as as a similarly distinguish now J.L. ment aims pay phone. from a placed public call that, by arguing things, other among identity fact that her remains unknown reliability be had sufficient indicia of calls risk unhinges consequences (cid:127) more physical description cause the Knowledge fact of the calls. here than that in and because detailed caller’s- number —without more—has not reflected and “precise the calls Freeman’s factors altered the that underlie J.L.’s de- changing location.” anonymous supported be mand calls reliability. by additional indicia of More- proffered

While distinctions over, reasonable must exist at factual J.L. are indeed differences between Terry Terry, the time is made. case, they not ones and the instant are time At the this why anony that undermine reasons continuing was made—and to this phone calls must have sufficient indi mous day did not know if would reliability to of support finding cia of —the caller, thus, track and able to down the be suspicion, they provide do nor knowing have no way had and of whether anything indicia for this or do those caller consequences reporting for false all reliability in analysis laid out to alter this influenced caller to tell truth. in J.L. J.L. did indeed While Thus, recorded, though was recorded, even the call the call not note distinguish tips the two factors that question. Id. at was not the determinative known J.L., are both still unknown sources as in here Just in operative this case—the caller’s credibil- “nothing known the informant.” about no ity cannot and there is risk the caller has her “ano be assessed placed Id. As not risk,” J., in (Kennedy, consequences report for false nymity at id. at 276 of call than concurring), this is no different instance. J.L., in

In his concurrence Justice Ken- could not be assessed based on the caller’s reputation in for nedy supposed technology honesty that advances and that the caller could reliability consequences that in face the may provide tips earli- untruthful reporting for neither years one the calls. er would have been considered unre- fact J.L., anonymous that the caller made both anonymous tips. liable calls; herself, these refused identify J., (Kennedy, S.Ct. 1375 concur- not phone could be reached back via However, ring). every not advance in 911 operator merely indicates that technology ensuing decade has ad- there were two calls from the government’s ability vanced the to identify individual, same just instead of one. It callers and hold them to account for false nothing does to bolster her credibility. example, For tips. phones mobile Furthermore, that the caller an eye- proliferated. While a landline is necessari- witness makes the instant no case different ly registered to a particular person and J.L.; there, than in order to observe that particular place, some mobile can phones was waiting J.L. at the bus stop clad cash, prepaid stripping be all them of shirt, plaid the caller would have been an identifying information. Given this uncer- Here, eyewitness as govern- well. as the constantly tain shifting landscape, stresses, gave ’ ment the caller more infor- government cannot claim the benefit of a mation about appearance Freeman’s general reliability trend toward driven J.L., location than did the caller in but that case, technology. government each does not make the information provided technological capac- must show its relevant anything but description “[a]n accurate ities and enhanced capacities how.those readily [Freeman’s] observable location reliability in particular instance. J.L., appearance.” Here, suggest the record does not a mate- 120 S.Ct. 1375. The fact that anony- tip. rial increase mous call here was more detailed as to The dissent suggests impos- we are description and location does not physical ing on extraordinary merely alter the fact that such details burden in each case “hunt down the “correctly identify serve to person tipster” disprove anonymity citizen tipstér whom the means to accuse.” Id. each phone case of cell calls. That is specificity Increased on these dimensions simply applying accurate. We are nothing does tipster “show that the has anonymity analysis specific na- knowledge activity.” criminal concealed ture of the calls here and concluding there suspi- Id. Just as “[t]he reasonable not in enough was the record before the cion here at issue that a requires tip be district court to find sufficient indicia of reliable in illegality, its assertion of reliability. may very It well be that simi- just in tendency identify its a determi- lar calls with more evidence of identifica- Likewise, person.” nate Id. the district J.L., the satisfy tion of caller or that could court’s reliance on fact that the calls with more information different only in individual the area match- necessary And, would reliability. have the ing the description, compared as to three it may very specific well be that the nature individuals who in description matched the phone of the cell technology or contact J.L., nothing reliability does to alter the may contribute to an identification tip analysis or the overall of whether caller. But it does not here. suspicion. there was reasonable That That only the caller contacted 911 twice sim- Freeman was the individual ply means that the content of matching description simply both calls area Terry progeny and its cion standard of much easier to it was that that

means from the already a downward deviation person whom “correctly identify the required otherwise cause that is id. accuse,” probable Identifying tipster means to to be1 for a search or seizure in order made easier a task person,” “a determinate bounds of the and within the reasonable individual being by Freeman Constitution. does not bolster description, matching of ille- reliability “in its assertion tip’s to the exception a narrow recognized We gov- this case remains and thus gality,” Simmons, States v. J.L. United in rule Id. J.L. in rule laid out by erned Simmons, anonymous an 98. In 560 F.3d prog- in reported caller an “assault to indicate that court seems The district Id. involved a firearm. possibly ress” that individual’s description the caller’s need to upon police’s at 101. Based walking east on Burke namely, location— emergency situa- reports act on of an “to informa “predictive” Avenue—constituted anon- delay,” we held “that an tion without call from thát distinguishes this tion that reporting ongoing emer- ymous 911 call so, misap in J.L. In doing the lower court higher degree a gency is entitled to infor predictive prehends what constitutes showing of requires a lesser predict riot that the mation. The caller did tip alleges gener- a that corroboration than walking in a certain begin individual would criminality.” Id. at 105. Notably, how- al direction, it demonstrated such Simmons, ever, it recognized in we' knowledge of concealed “tipster had case. Id. at 107. Recogniz- ‘close’ activity.” Id. criminal fact, expressly now decline to ing this we Rather, simply described the caller 1375. exception, that limited expand the reach of was indeed fact that individual Simmons to other expand because to contem walking on Burke Avenue. Such police, reports made constitute poraneous description does not more, ignore without would serve future behavior that imbues a prediction of Any rule laid out the Court reliability. “Anyone could tip greater exigency in this case was weaker than the it that fact because was ‘predicted’ Simmons, this case con- exigency in as existing at the time presumably condition (or White, ongoing of an assault report tained no the call.” kind). any Consequently, more violence of required evidence was particularized Insofar had the this case. level of reasonable same J.L., expressly rejected a the Court Simmons, was insuffi- did Terry’s exception firearms demand justify Terry in this case. cient supported by suspi be cion, Nearly every anonymous call made specific particularized. implicates the need for 120 S.Ct. 1375. thus, must way; jurisprudence fire some acknowledged danger posed a latent danger recognize is the difference between and reaffirmed that this arms crime, of a fire- very “simple possession even already accounted for the rule Simmons, arm,” F.3d at and stop 560 Terry allowing — emergency, in or it fails to heed suspicion, ongoing upon frisk based reasonable district court J.L. rule of To the extent the demanding “that officers meet the stead of run” cause.” Id. at made a factual finding “gun that a higher probable standard of “possession than mere 272, 120 suspi- reasonable was more serious S.Ct. 1375. The 101 id., firearm,” begin, neighborhood we conclude the district To and time of own tes clearly stop specif- erred. The officers’ are not individualized facts court a¡ radio call is timony that such ic to Nor indicates Freeman. do enhance the having possibly indicative of an individual the phone by confirming call government’s con gun. accept To course, in it some individualized detail. Of tention, apparent the district court’s these factors could still have relevance. conclusion, contrary would be— required ignore are not “[OJfficers emergency through operation relevant characteristics of a location in de- in exception this Court laid out Sim termining whether the circumstances are very excep mons—to create the firearm sufficiently suspicious to warrant further rejected tion that the in Wardlow, investigation.” Illinois 272-73, 120 529 U.S. at 119, 124, S.Ct. L.Ed.2d (2000). ease, On the facts of this C. however, these factors not do contribute meaningfully finding to a of reasonable assessing supported In whether a instance, suspicion. For the fact that the suspicion we “look at the night encounter occurred late at is a rela- in totality of the circumstances” order to case,2 tively in generic weak and factor detaining “whether the officer determine general “high and the label crime area” is objective particularized has basis analysis substitute for of the under- Arvizu, legal suspecting wrongdoing.” (cid:127) examination, lying testimony. On direct (internal Officer Walsh recited some of the crimes omitted). quotation marks the instant area, place gave that took but no case, in addition to the 911 we have .call length sense of the of time over which discussed, already the district court also those incidents occurred or whether the upon relied the facts that oc- atypical. number of incidents was Officer night ‘high curred at in a area crime’ suggested Walsh also treat- that Freeman walking, continued in being relatively high ed the area as pace, initially approached by same when crime, and attire of offi- given the duties plain clothes officers.1 We conclude area, cers but offered little elabora- nudge these additional factors do not ' tion on the basis for this treatment. In- the officers’ concerns over the line to rea- deed, cross-examination, sonable on Officer suspicion. Walsh supposed "aggressive descrip- 1. While the district court noted in its Nor was this man. proceedings tion of the below that Walsh tes- walking” contemporaneous mentioned in the walking "ag- tified that Freeman was in an police reports. accept Even were we to manner,” gressive it did not make a factual contention, tip it would not the scales of finding accepting this contention as true and totality of the circumstances to create reason- expressed skepticism validity indeed as to its suspicion. able Moreover, during suppression hearing. the district court did not base its reasonable “city weight 2. This factor carries less all, suspicion analysis on this assertion at thus sleeps,” Frank that never Sinatra, York, New lending support further to our conclusion 1979), (Reprise where restaurants New York accept the court did not this as a factual regularly open are to 4:00 a.m. N.Y. bars finding. accept We decline to this assertion Arvizu, 106(5)(b). § See Alco. Bev. Cont. Law now, do, as the would have us (different cir- especially light contemporaneous may one cumstances be "unremarkable Attorney of the Assistant United "nothing suspicious,” prior grabbing to Free- above, call, which, is not as discussed prosecutor had told the that he confirmed the case here. stop at which the took the area only that areas in higher crime place was ‘one of that, case, we at In the instant conclude are meaning that ‘there precinct,’ [the] initially approached the time the officers areas and there are areas with more crime Freeman, have reasonable they did not fact, It is precinct. govern- within the him—in suspicion stop with less crime’ to stage at of the ment has not even significant probative val- assign difficult to artic- litigation “specific identified the observations.3 ue to these justified have ulable facts” that would point, Bayless, that stop of Freeman at fact also cites the 132; instead, they have at- 201 F.3d at stop shrugged Freeman did that delay tempted point to seizure Up touched his arms. off the officers who incidents that occurred order to include there was not reasonable point, until this suspi- in the reasonable the seizure for.the officers to seize Freeman. suspicion analysis. police lacked reason- cion As officer, an without reasonable sus “[W]hen suspicion, certainly Freeman had the able cause, probable approaches picion or ignore and continue on right to the officers individual, right individual has a merely walk- way. his continued go about his busi ignore the direction, ostensibly ing the same any cooperate, ness. And refusal with as the never con- pace, the same more, not furnish the minimal out does accepted gov- tended If we otherwise. objective justification for a level of needed argument simple ernment’s that such a Wardlow, or seizure.” 528 U.S. detention comply could create reasonable refusal (internal quotation 120 S.Ct. 673 before, existed we suspicion where none omitted). marks and citation It is true truly paradoxical would create class previously that such we noted who cannot be individuals: individuals light “when viewed in of the cir refusals officers, but can be stopped who cumstances,” can serve to “reinforce[ ]” stop. if stopped refuse Such police’s reasonable gut repeated conclusion would Court’s grounds may he the individual on be ap- determination an individual Simmons, “engaged activity.” in criminal “need not answer proached observation, F.3d at 108. This howev him; indeed, may any question put to he er, every a mandate that converts is not questions decline to listen to the at all and support finding such refusal into for a of may way. may He not be de- go on his suspicion. It still demands an reasonable momentarily tained even without reason- totality of the circum assessment of so; able, objective grounds doing such stances and serves to “reinforce” not, to listen or answer does his refusal suspicion, not to create such more, grounds.” those without furnish it does not otherwise val suspicion where 491, 497-98, 103 Royer, Florida v. 460 U.S. Simmons, idly (1983) exist. the case wherein (plurality 75 L.Ed.2d 229 added) (internal point, already we determined made cita- opinion) (emphasis we Wardlow, omitted); the call was imbued with tions see also The “more” eontem- emergency nature of the 120 S.Ct. 673. because conducted,” Buie, areas, Maryland high possi- be "Even in crime where can bility any given n. 110 S.Ct individual is armed is (1990), reasonable, significant, Terry requires and the same is true for individ- L.Ed.2d Terry. weapons an initial under ualized before frisk for

103 WESLEY,-Circuit Judge, dissenting: rise to by Royer, give sufficient plated does not exist in this suspicion, reasonable join I I II-A full Parts of the case. majority opinion, but dissent as to the

anonymity 911 of light of the caller: surrounding the circumstances III. dispatch, reasonably I believe the officers they relied on the call and that had reason- does not mean suspicion” “Reasonable able Freeman.1 whatever circumstances simply accepting by government as neces- are offered question anonymity” plays of “true sarily demonstrating grounds sufficient key in evaluating role Arvizu, 534 suspect “legal wrongdoing.” 911 529 calls Florida 273, 122 review U.S. at S.Ct. Judicial 1375, 120 146 254 S.Ct. L.Ed.2d through admittedly considers the facts (2000). J.L., 120 S.Ct. officer, id., eyes of a reasonable but this is J., (Kennedy, concurring). While stamp. will not and not a rubber We frequently calls were recorded and merely defer to “district must not court[s] ID in none of operators had caller judgment.” Bayless, officer’s [a] record in this information was police, at 133. Just because the F.3d Noting Id. is unlawful to make “[i]t subsequently prosecution, have of- reports police,” false to the Justice Kenne- circumstances that contend con- fered dy that facilitate “the wrote features suspicion, this Court will stitute reasonable identity ability to trace the importance using not read out the anonymous telephone informants” could of a officer perspective compromise anonymity” the “true of 911 .“reasonable” A offi- assessing such factors. Id. at 1375. Howev- calls. who has been trained in and has er, cer is one record not “[t]he d[id] that case show law, knowledge governing including whether some notation or other documen- protections guaranteed the constitutional tation of the call was made either Simms v. recording tracing the Fourth Amendment. or the call to a voice Cf. (2d Albion, telephone Vill. 115 F.3d Id. at number.” Cir.1997) immunity analysis in the (qualified con- 1375. Had this information been officer”). surmised, record, Kennedy the call “reasonably siders well-trained Justice “truly anonymous” together, might circumstances must have been less Taken and therefore more reliable. legal actual provide grounds suspecting Arvizu, wrongdoing, requires Majority confirm that it could track down the

tipster and hold her accountable for inac- in the field can tips curate before officers CONCLUSION tip. Opinion reported a crime above, judg- logically For the reasons stated could have 98. Here the officers (and hereby RE- accurately) ment of the district court is that the 911 call assumed VERSED, strongly and the case is REMANDED was Indeed the record recorded. everyone proceed- suggests to the district court for further to address Majority’s game-changing opinion. prior case ings consistent justified. Opinion govern- "stopped” entirely Majority's strong been 1. The rebuke of position even he was ment’s untenable 96-97. hug” had detained in a “bear (2007): Costa, here, In the caller de- knowledge officers’ of view took the granted. for asked. Id. practice this routine clined to leave her name when fact, In the record here, calls recorded. were caller at 862 N.E.2d 371. As the Neverthe- contains the calls themselves. of the fact that the call was was aware less, government to Majority asks the the her number observed. Id. recorded and that her call that the caller knew prove a phone The caller was on a cell line otherwise recorded or that she could Id. The Massa- sight on the defendant. this, prove the Ma- be tracked .down.2 To high court concluded that the chusetts hunt jority government have the would “materially facts in were different” Costa accurately tipster who down the citizen 862 N.E.2d 371. from J.L. Id. ongoing hoping crime while reported an Here, the officers who made the merely secure her anonymous, remain suspicion determination were knew that she could be testimony that she multiple phone confronted with recorded any or sub- Nothing tracked down. provided a woman who accurate calls from' Supreme from the Court re- sequent case descriptive information and discernible quires'that. yielded that a voicemail call-back number4 Majority suggests further that the where a message. This is not case existence of cellular tele- widespread stranger in a muffled voice made a call anonymous, callers more phones3 makes payphone, from a or where someone of cellular towers rather based on use dropped off note. The offi- calls’ prospect than land lines and the reasonably presumed that the caller cers coming disposable phones. Opinion from They requested could be identified. Nothing public 12. in the record or dispatcher tipster call the back to veri- "selfserving conclu- supports domain fy actually gun; whether she saw a Indeed, have held the sion. other courts Costa, See, dispatcher in fact call back on the did precise opposite. e.g., Com. v. 510, 517-18, request, N.E.2d officer’s albeit to no avail.5 The 448 Mass. Although opinion http://www.ctia.org/advocacy/research/index. 2. does not articulate the links, (accessed 2013). government August, when it asks for the cfm/AID/10392 technological Admittedly, people prove capacities well over 300 million now that "relevant particular phones ... use cell in the United States. Id. th[is] enhanced However, instance,” government it must it is reasonable to believe that Jus- means that the rising popular- Kennedy knew tice was aware of the demonstrate not the officers recorded, ity phones penned that a call was but that the caller of cell when he his concur- decreasing Opinion introducing technology's rence role in knew. at 13. Without about specific knowledge anonymity.” into evidence the caller's "true down, govern- that she could be tracked prove ment could not "whether the conse- suggests quences 4. This fact the caller did not reporting for false at all influenced number, employ disguise a device to her such Opinion at this caller to tell the truth.” 98. phone dialing placing *67 Presumably inquiry before call. the most relevant would be whether the officers were informed that that, Although Majority that the caller asserts the caller knew she could be tracked phone by not be reached back via down if she For obvious reasons this "could .lied. operator,” Opinion sup- the record impossible prove every will be case. ports only the conclusion that the caller could dispatcher. reality, I when J.L. was decided in not be reached "[wjireless Majority subscribership in America ex- find it odd that the believes that the million, dispatcher totaling repeated requests approximately officers' ceed[ed] CTIA, History tipster request they population.” to call the back —a would 38% Communications, tipster available not have made had believed Wireless num company in a rea other calls made focus relevant officers’ belief—the disposable phone that was iden ber suspicion inquiry sonable —was individual, caller; can tied to tified as a reachable tipster was identity the caller’s and location.6 then ascertain number particular phone caller’s other inter suspicion not-so-anonymous of official “The reasonableness it that possible the officers locutors. “While by what must be measured or a using phone search.” caller was a borrowed cell they conducted their knew before J.L., 271, 120 phone may cell to which she prepaid traceable, directly she would be have been distin the Tenth Circuit Copening, through the owner potentially identifiable in that case anonymous calls guished the Costa, phone.” of the cell 448 Mass. fact starting with the from those Perhaps gov n. 862 N.E.2d 371.7 that, pro caller declined to although “the produced ernment would have information name, un called 911 from an vide his he arresting officers’ awareness of this on number.” United telephone blocked methodology on the record if Freeman had 1241, 1247 506 F.3d Copening, v. (or tipster called could suggested that (10th Cir.2007). noted that the The court called) disposable phone. cell have from a that 911 dis expected “caller should an invention of the He did not. This is incoming calls and patch tracks Majority’s imagination. number could be used originating phone Id. The identity.” the caller’s investigate only Majority analyze Not does the rea- provided noted that the caller panel also though as the record sonable information in more than one very detailed the caller supported possibility present All of these factors are call. Id. phone assump- cellular prepaid used a —an Furthermore, the existence of voice- here. sup- the record offers no tion for which Majority’s belies the assertion mail alone analyzes it such as port —but anonymous as a call that this call was “as police officers in the midst though the Opinion public pay phone,” from a placed possi- “gun run” had reflected on of whether the voicemail regardless a using caller was such bility pre permanent with a or was associated second-guesses the phone. Majority paid phone. cellular suspicions of officers who knew number, sex, of'sight, and phone line Finally, Majority if the were able even of a caller. These analyze geographical location that we should to establish officers, run,” “gun of a were prepaid the midst though case as the caller used called, twice, de- informed that a woman disposable phones may phone, cell these particulari- Majority scribing suspect detailed as the quite not be he a firearm. ty asserting en- had example, For as most law believes. know, Majority’s analysis does a disservice likely the The investigators forcement separated a felon from phone to the officers who request can from cell recording the caller’s voicemail con- the officers be- whether unreachable —indicate that be tipster You can tained her name. to be unreachable. lieved the you num- back if have her call someone ' may patterns be used to trace 7. Lists of call ber. phones prepaid cellular the owners of See, technique. explicitly law enforcement Although dispatcher did not standard name, e.g., Appendix at United States also Joint that she had the caller’s she state - Warren, -, WL Fed.Appx. explicitly that the caller was did not state (2d Cir.2013), No. ECF anonymous. does not reflect The record helpful citizen who called gun, his explosive that an repeatedly to ensure defused, and to Fourth

situation was general. jurisprudence

Amendment more evidence than was had officers in par- that Freeman

necessary to believe committing ongoing crime

ticular was im- likelihood of significant

that carried a

pending I therefore dissent. violence.8 America,

UNITED STATES

Appellee, MURDOCK, Defendant-Appellant.

Seth No.

Docket 13-3236. Appeals,

United States Court of

Second Circuit.

Motions Oct. Submitted: 2013.

Decided: Nov. Murdock, Mills, WV,

Seth Bruceton De- fendanfi-Appellant pro se. Coffin,

Tristram J. United States Attor- Vermont, ney for the District of Burling- ton, L. (Gregory Waples, VT Assistant VT, Attorney, United Burlington, counsel), Appellee. KATZMANN, Judge,

Before: Chief WESLEY, Judges. KEARSE and Circuit changes troubling exceptionally Given the anee in communications im- centers, industry hope and 911 call one would portant jurispru- area of Fourth Amendment Supreme post- that the enter the will dence. give guid- world the circuits further notes another”). quite instance while unusual in ... Walsh, police, including observed

Case Details

Case Name: United States v. Freeman

Court Name: Court of Appeals for the Second Circuit

Date Published: Nov 7, 2013

Citation: 735 F.3d 92

Docket Number: Docket 12-2233-CR

Court Abbreviation: 2d Cir.