United States v. Kennedy Polidore

know that— GARZA, Before CLEMENT and SOUTHWICK, Circuit Judges. Operator: Okay, you do know his name? Kennedy Caller: Polidore. GARZA, Judge: M. EMILIO Circuit ' Operator: you Do know what kind of juryA defendant, found the Kennedy drugs he’s selling? Polidore, of guilty possessing crack cocaine selling Caller: He’s crack. with the appeal, intent distribute it. On Operator: Which apartment he contends error reversible oc- right now? curred when of portions two 911 calls were Caller: He don’t even live out here. admitted into evidence. following For the just sitting He’s the steps. on reasons, He’s WE AFFIRM. running out, in and in and out. Peo- coming— ple I Operator: wearing tonight? What’s he arrest, On the night Polidore’s two Caller: Ma’am? anonymous 911 calls made the same possible individual alerted the police to Operator: wearing tonight? What’s he with a male parking occupying on lot black got green some shorts Caller: He’s apartment PT who Cruiser sitting The car is and a white t-shirt. selling they uh—11th, 11th, narcotics.” When arrived at yeah that’s off of— caller, given the 911 address uh—Sweetgum. and — Cruiser, PT a red which was observed second portion On unoccupied, had its parked, driver’s following jury, collo- played the dispatch- side window down. Because at 12:24 A.M. began took which quy place, er had informed the officers that the sus- your Phone line where Operator: keeping of the narcotics pect was some emergency? compartment inside a on driver’s side just I was one called Hey, Caller: vehicle, they from looked outside the going deal down drug about the that’s appeared vehicle and observed what to be Sweetgum. over here in plain three of crack cocaine rocks view. Yes, sir. Operator: The officers further testified that a man got dope in the He’s Caller: Ok. them, approached then identified himself side panel. door caller, provided as the and them with dope’s in the side door Operator: The suspect the some information about panel? Believing the PT Cruiser. the sus- He—the— Caller: Yeah. car, unoccupied pect would return the right or left side? Operator: The the plan whereby the officers devised a one the driver’s side—And— Caller: Uh—of nearby a would hide behind fence and the they them it when but I to do want patrol other drive the unit around got ’cause he’s for sure it leave here later, the corner. About five minutes a I he know the car ’cause didn’t was male, dressed in black dark-colored shorts only called ’cause I the one one t-shirt, apartment a and white exited the seen it. complex and the PT entered Cruiser Operator: Okay, you side; how see it sir? did female driver’s entered passenger’s vehicle on the side. The offi- put I him it in there. I can Caller: seen cer behind the fence alerted the officer right see it now. patrol phone. unit via call on his cell Okay, adding Pm the infor- Operator: patrol in the unit The officer returned you, Thank sir. mation to call. lot, apartment parking activated his tell Okay. you But would them Caller: PT emergency lights, and followed the I don’t do it here? Cause want the officer activated his Cruiser. Once him that I was the one told to think emergency equipment, the driver of the (inaudible) down the pulls going off speeds 60 to PT Cruiser accelerated to street. failing negoti- hour per 65 miles before Operator: Ok. in a up ate a turn and vacant lot. ending you. Thank Caller: vehicle, running he up As Operator: You’re welcome. open door officer saw driver’s side his stick arm out and throw responding police officers later driver The two The night question they something underneath vehicle. on the testified that Kennedy Poli- dispatcher re- driver identified himself received a call via radio custody. officer him into dore and the took they respond to the Monter- questing that Polidore, he After officer handcuffed Sweetgum in or- rey Apartments what out to be a clear discovered turned “a red PT Cruiser der to look for bag powder cocaine on the driver’s nontestimonial, side the district court erred floorboard. The officer also retrieved admitting the 911 recordings because three rocks of crack cocaine from the same hearsay contained that did not fall under place observed, earlier and once the car any of the exceptions to the against rule wrecker, was moved he discovered a hearsay.2 bag clear of crack cocaine on the ground where the car previously stood.1 The offi- A that, cers testified based on their training By proper objection, pre Polidore experience, bag of crack cocaine served his claim of error that the admis recovered from underneath the vehicle was sion of the 911 recordings violated his a “large amount” and was consistent with right to confrontation. Accordingly, we distribution purposes. review the alleged violation of the Con charged by indictment with frontation novo, Clause de subject to a one count of possession with intent to dis- harmless analysis. error United v. States grams

tribute five or more but less than 50 Bell, Cir.2004). grains of a mixture or substance contain- ing a amount detectable of cocaine base. The Confrontation Clause of the subsequently Government filed a no- Sixth provides that, Amendment all “[i]n tice and information of prior convictions prosecutions, criminal the accused shall en for purposes of punishment increased pro- joy right ... to be confronted with the by 841(b)(1)(B) §§ vided 21 U.S.C. and witnesses against him.” U.S. Const. 851. jury The found Polidore guilty as amend. VI. The “applies Clause ‘wit to charged. The district court him sentenced against nesses’ the accused—in other ” to 137 months of imprisonment, to fol- be words, those who ‘bear testimony.’ by lowed eight years of supervised release. v. Washington, 36, 51, 541 U.S. Crawford Polidore filed a timely of notice appeal. 124 S.Ct. (2004) 158 L.Ed.2d 177 “ (citation omitted). ‘Testimony,’ turn, II typically ‘[a] solemn declaration affir or appeal,

On Polidore claims that the mation made for purpose of establish court district by erred admitting the 911 or ing proving fact,’” (citation some id. recordings into evidence omitted), because the re a description which we have held cordings contained testimonial hearsay “includes ‘statements that were made un that violated his Sixth Amendment right to der circumstances which would lead an be confronted with the witnesses against objective witness reasonably to believe him. He asserts that the recordings were that the statement would be for available ” prejudicial and extremely harmful to his at a use later trial.’ Brown v. Epps, 686 defense. Polidore alternatively contends Cir.2012) 286-87 (quoting if even the caller’s statements were Crawford, 1354). 541 U.S. at trial, 1. At a However, forensic scientist testified that the Polidore was convicted and sen- substances found in and underneath the car tenced before effective date of the FSA. (0.63 were cocaine grams base and 19.57 Doggins, In United States v. grams) (27.66 and hydrochloride cocaine (5th Cir.2011), we held that the FSA does not grams). apply retroactively to cases where sentencing prior occurred to the effective date of the Act. argues Polidore also that his case should be Hence, argument Polidore's by is foreclosed remanded to the district court for resentenc- precedent. circuit ing under the Sentencing Fair Act of 2010. “attempt[ed] produce has not to reach is limited to testimonial The Court The Clause’s “in for testimonial of all conceiva- order an exhaustive classification admissible, the Sixth to be ... in response evidence ble statements ‘demands what the common Amendment interrogation[ either testimonial ] unavailability prior and a required: law at nontestimonial.” ” for cross-examination.’ opportunity But the Court has held — -, Bryant, Michigan v. objective that the “basic of the Confronta- 1143, 1153, 179 L.Ed.2d 93 S.Ct. prevent ... is to the accused tion Clause (citation of being deprived opportunity from the declarant about state- cross-examine Although the Court has Supreme for use at trial.” ments taken comprehensive out a def “spell declined ” has Accordingly, at 1155. the Court S.Ct. ‘testimonial,’ it has noted inition “ that if the directed it testimo ‘prior a minimum’ includes ‘at trial, is to a for create record hearing, a preliminary before ny at its admission trial is barred then trial; ... jury, or at former grand ” contrast, By (citation Clause. Id. Confrontation omit interrogations.’ Id. added). ted) However, procured with a “not all “when statement (emphasis creating offi an out-of- ‘interrogations primary law enforcement subject testimony!,]” are to the Confrontation it court substitute trial cers[]’ (internal omitted).3 citation Id. Clause.” fall within scope does not instance, “in the Court has held that For Clause, admissibility “the of [the] solely establishing terrogations directed is the concern of state and fed- statement crime, in order to past facts of a evidence, eral rules of not the Confronta- convict) (or identify provide evidence tion Clause.” squarely fall within perpetrator” hearsay. of testimonial definition has several Court identified 826, By at 126 con 547 U.S. S.Ct. deciding factors we should consider when trast, interroga has singled the Court out primary purpose police the of whether of inter by operators tions 911 as a form was to create an out-of-court interrogation necessarily elicit that does not rogation testimony. Specifically, trial substitute 827, at 126 testimonial statements. Id. (1) the has considered whether the Court (“A hand, call, other 2266 911 on the S.Ct. as speaking “was about events declarant the con interrogation and at least initial actually rather than happening, they were call, is ” in connection with a 911 ducted Davis, events,’ ‘describing] past 547 U.S. designed ‘esta ordinarily primarily not to 2266, (2) 827, whether a rea fact, to prov[e]’ past or some but blis[h] in person the sonable declarant’s requiring current circumstances describe that the declarant was would have believed assistance.”). police id.; see facing ongoing emergency, an (3) 8, & n. Bryant, 131 S.Ct. at 1157 also particu To determine whether nature of was asked whether “the what produced interrogation testimonial lar answered,” objectively, viewed “was instructed us to hearsay, the Court has nec that the elicited statements were of the such primary purpose “the determine present to be able to resolve the essary S.Ct. at 1155. interrogation.” 131 case. See operators this of in this [the] caller[]” that the in tions 3. We assume Washington, n. acting “agents law enforce- Davis v. case (2006). interroga- L.Ed.2d the] ment when conduct[ed tentially prose- to later simply to learn relevant criminal emergency, rather than cution. in past,” happened ... what had S.Ct. 822, 126 547 U.S. at S.Ct. 2266. formality of interroga- level Here, however, we cannot decide tion. Id. whether the declarant’s statements were primarily testimonial based exis on the however, case, In we cannot this resolve tence vel an ongoing emergency.4 non of mechanically by applying issue Unlike the declarant’s. interrogations in this factors. The above Bryant or in the two cases decided categories into the neatly case do not fit of the interro limited contemplated by holdings re- gations in this case was neither to “enable cently Supreme Spe- Court. issued police assistance meet an emer ongoing cifically, of the given interroga- the nature gency” prove past nor to “establish or Court, it recently tions considered events crimi potentially relevant to later has been whether able to decide those Rather, prosecution.” pri nal hearsay interrogations testimonial elicited mary interrogation was to largely existence of an ongo- based on the gather necessary information for the ing emergency. Bryant, S.Ct. at 1162 respond report to a of ongoing criminal (“The emergency existence of an or the activity. Although it appear does that the perception emergency parties’ contemplated declarant that his call could ongoing important most among the cir- lead to a prosecution, later criminal he was cumstances that must take court into ac- making not his statements “to establish or count whether an determining interro- prove past potentially events relevant ”). instance, gation is testimonial .... For (emphasis later criminal prosecution.” Id. in Davis the Court was able to decide the added). Acknowledging ap that we must primarily by cases it two before distin- ply reasoning Supreme Court’s guishing interrogations between intended recent precedents slightly to this different enable “to assistance to meet an context, we conclude the declarant’s ongoing emergency” and those intended to testimonial; statements were under prove past potentially “establish events totality circumstances, pri of the prosecution” relevant to later criminal in mary purpose emergency: the absence of an create out-of-court substitute for tri Bryant, al testimony. 1155. S.Ct. at Statements are nontestimonial when police made in the of interroga- course analysis begin by considering We our tion objectively under in- circumstances primary purpose whether the of the dicating that primary purpose the of the operators’ interrogations was to “enable interrogation police enable assis- police to meet ongoing assistance an emer- ongoing tance to emergency. meet an gency,” which would render the declarant’s They are when testimonial the circum- resulting statements nontestimonial. stances objectively 2266; indicate that there is at 126 S.Ct. (same). no such ongoing emergency, and that Bryant, To primary determination, the interrogation of the make primary purpose is to prove past objectively establish or “we po- events evaluate the circumstances similarly We ongoing emergen- 4. decide cannot this case based believed that there was an predominantly cy during interrogations. per- Bryant, on a reasonable whether the See son in the S.Ct. at declarant's would have 1157 n. Id.; see id. at 1164 employed.” weapon and the occurs the encounter in which involving gun, a “the (noting, in a case parties.” the actions of and statements weap- certain First, at least as to implausibility, we ex- at 1156. emergency to last ons, construing the the regarding objective facts amine long the violent act only precisely oc- as an encounter in which “circumstances itself’). of the the scene at or near e.g., curs — station, during an police at a versus crime of the circum- objective An evaluation Id. afterwards.” emergency or ongoing interrogations in which the 911 stances “state- evaluate the objectively Then we and actions of and the statements occurred to deter- parties” and actions of ments that, at leads us to conclude parties partici- reasonable purpose that mine “the call, time of the second least had, from as ascertained have pants would was primary purpose and actions the individuals’ an assistance to meet not to enable the encounter in which circumstances ongoing emergency. Id. occurred.” objective circumstances of the two ongoing of an “The existence anonymous entail an interrogations of an parties’ perception emergency [or reporting ongoing caller street-level deter is relevant to emergency] ongoing police. According to the drug trafficking of the interro mining caller, sitting was on the emergency focuses the an gation because complex, run- steps nearby apartment of a something other than on participants complex, selling ning in and out of the relevant to potentially events ‘proving past opera- caller told the cocaine. The crack ” Id. at 1157 prosecution.’ later criminal there gun,” that Polidore “totes but tor omitted). (citation Instead, parties’ that the caller suggesting no evidence emergency ongoing that there is belief on carrying gun knew the defendant threatening ‘end[ing] “focuses them appears The caller night question.5 ” (citation situation.’ first call while inside a to have made the opera- he told the nearby building because parties Determining whether go back out there and tor that he “could emergency existed that an believed Be- plate license number. get” Polidore’s interrogation “is a during an calls, the caller the first and second tween inquiry.” Id. context-dependent highly ap- outside and gone to have appears assessment, it is making this When he in- Polidore’s car because proached poten consider the “zone important to that Poli- operator second 911 formed the by the relevant ac presented tial victims” in “a door storing “dope” side dore was threats to “involving cases tivity. Id. For put had seen Polidore panel,” that he “assessment of whether safety,” our public he panel, and that “could drugs the door threatens emergency It is also dope] right now.” worth see [the narrowly cannot public ongoing and the City Beaumont had im- noting that the solely threat to on whether the focus of the calls due a curfew at the time posed because has been neutralized first victim to a recent hurricane. responders pub to the first the threat (citations omitted). applied not its Court has Supreme The Id. may lic continue.” to a similar emergency” analysis “ongoing of an scope Similarly, “the duration i.e., reports caller where a 911 type case: may depend part in on the emergency jury. played to the containing was not this statement portion the first call 5. The 714 Here, trafficking crime and even if the caller’s

ongoing drug asks statements on responses the first 911 call were to “initial stop it. But police to come we do not inquiries” necessary that were to inform analyze the circum categorically need to responding they officers what needed drug trafficking a stances under which situation, to know in order to “assess the an “ongoing emergen crime can constitute safety, the threat to their own and possible cy” in the issue in this order to decide danger [public],” the caller’s state- Rather, although we note case. that simi call ments on the second were “neither a give lar could in some cases circumstances cry help provision nor the of informa- interrogation that pri rise to a 911 has a enabling tion officers immediately to end a mary enabling police purpose of assistance threatening Id. (emphasis situation.” add- emergency, to see meet United ed); 828, at 126 id. S.Ct. 2266 (holding Ibarra-Sanchez, 753, States v. 199 F.3d of an interroga- (5th Cir.1999) (holding, another con tion can evolve the initial purpose once has text, are “[rjarely concerns for officer achieved). been safety paramount during more than instance, during call, For the second stop suspected of a of transporting vehicle caller asked the operator two occasions drugs”), the statements and actions of the police to tell the not to arrest Polidore during caller the second call dispel any until he left his location near apart- time, that, by primary notion pur complex.6 Although ment the caller’s re- pose interrogation was to enable quest to allow leave the area meet an ongoing assistance to emer before his arrest reflects an understanda- gency. ble anonymous, desire to remain it also shows that the caller was not requesting The has held that Court state immediate assistance to end a threatening ments made on calls are ordinarily situation. 911 interrogation When a “elic- testimonial 911 call “[a] because ... and at necessary ... its] statements to be able to least the initial conducted present emergency,” resolve [a] call, ordinarily connection with a 2266, U.S. at the 911 caller designed primarily prove establish or does not ask operator to tell the fact, past some but describe current to wait suspect to arrest a until he volun- requiring police circumstances assistance.” tarily leaves reported the scene 126 S.Ct. 2266 activity. Thomas, United States v. Cf. (internal quotation marks (7th Cir.2006) (holding that a qualified however, Court holding, 911 caller’s statements were nontestimoni- concluding that where a declarant’s “state al when the caller stated that “[t]here is cry ments were for help neither nor the outside, somebody somebody shot needs to provision enabling of information officers here, be sent over there’s somebody situation, immediately threatening to end gun, somewhere”); runnin’ around with the fact they given at an alleged Arnold, United States v. (6th Cir.2007) banc) (“The

crime (en scene and were ‘initial inquiries’ is fear that the immaterial.” district court noted Gordon’s voice com- 6. The po- you police] caller stated: "But I want [the "[b]ut [the tell not to do it lice] do it when leave here because here? Cause I don’t want him to think that I got he’s for sure it in the car because he pulls going was the one when he told off doesn’t know I was the one that called down the street.” it[;]" (2) only because I was the one seen indicates that a away complex from the scarcely concerned that she was municated anything simply but in his would testifying person to reasonable with a gun from a man with seeking protection that the situation constituted thought have and who had threat- himself, killed before public, who had the emergent an threat to Moreover, fact the again.”). kill ened to at officers. See id. responding to a second call placed caller that the 911 (“An emergency of whether an assessment police inform the only to operator the police public the is on that threatens panel in a door storing drugs Polidore was narrowly focus on whether going cannot that, by farther establishes of his vehicle solely to the first victim has the threat call, primary the second the time of because the threat to the been neutralized had evolved purpose of public may contin responders first to address information “needed beyond (“[W]hether ue.”); emergency an exists id. moment.” exigency of the highly context-depen a ongoing and is (citation omit- 126 S.Ct. 2266 U.S. at omitted). (citation Accord inquiry.”) dent ted). primary pur ingly, we conclude that sum, of the objective an examination In operator’s interrogation, pose of the actions” does “statements and call, 911 caller’s was not during least the second “the not indicate that an police assistance to meet “to enable police “enable interrogation” was to emergency.” 547 U.S. at ongoing ongoing emergency.” an assistance to meet 822, 126 S.Ct. 2266. (internal quota at 1156

Bryant, However, “disposi- this conclusion is not par In marks and citation tion inquiry.” Bryant, the testimonial tive of ticular, and actions the caller’s statements (“[W]hether 1160; see id. that “the 911 call reveal during the second emergency simply exists is one ongoing knew the time information [he] .at important factor—that factor—albeit have a reasonable [not led] [call] inquiry regarding informs the ultimate was an emer to believe that there person ‘primary purpose’ interrogation.”). of an present Court has gency,” Supreme as the noted specifically In the Court Id. at 1157 n. 8. ly defined the term. circumstances, may that “there be other call, the second Between the first and when a ongoing emergencies, aside from (1) moved to a appeared to have caller procured primary with statement place see Polidore location where he could an out-of-court substi- creating car and panel in a side door of his drugs testimony.” at 1155. We tute for trial Polidore’s vehicle to approached then conclude that the 911 caller’s statements drugs in he could see the position where primarily procured for such this case were previously, panel.7 door As stated the side purpose. on two occa operator caller asked the Here, report called 911 to declarant to the second call to wait during sions trafficking and drug street-level apartment the- until he left arrest Polidore dispatched that the be request willingness ap caller’s complex. The he crack cocaine arrest Polidore while had allow it reported activity and to proach the Thus, the inter- possession. unlike voluntarily drove his to continue until Polidore stated, only one seen it.” When got dope called 'cause I the "[h]e’s 7. The caller panel.” operator He then asked the caller how he was able side door asked the scene, he left the wait Polidore until responded, to arrest drugs, the caller "I seen to see the got explaining for sure it "he’s right put there. I can see it now.” him it in know I was the one car 'cause he didn’t 716 Hammon,8

rogations in not categorically address the standards Crawford statements, produced which testimonial that should in apply such cases in order to in the declarant this case was not “describ- primary determine that the purpose of the 827, past events.”9 ing U.S. at 911 interrogations in this case was not to (citation omitted) (emphasis S.Ct. create a substitute for trial testimony. Hammon, added); 829, Specifically, 547 U.S. at given the ongo- nature of the (holding entirely S.Ct. 2266 ing “[i]t is criminal activity and the caller’s re- clear from the circumstances that the in- quest for assistance police, from the terrogation part investigation of an person reasonable caller’s conduct”); into possibly id. would not past criminal thought have that his state- 830, at (distinguishing S.Ct. 2266 the ments were creating out-of-court substi- Hammon from that in Brown, in tute for See testimony. trial Davis because the Ham- F.3d at in interrogator (holding 286-87 testimonial (as mon “was not seeking determine statements include statements made under Davis) happening,’ ‘what is but rather circumstances “which objec- would lead an ”). happened’ hvhat primary tive reasonably witness to believe that the interrogations of the 911 in this case was statement would be available for use at a trial”). not “to or prove past establish po- events later tentially relevant to later criminal prosecu- matter, As an initial we determine that 822, tion.” Id. at 126 S.Ct. 2266. Accord- reported nature of the ongoing crimi- ingly, the fact the 911 calls were nal activity is relevant to determining the cry “neither a for help nor the provision of primary purpose of the interrogation. information enabling immediately officers Here, the nature of the reported ongoing threatening situation,” end a does not criminal activity possession with intent to — necessarily render the declarant’s state- distribute —was such that the could Bryant, ments testimonial. Cf. obtain sufficient evidence to establish Poli- (internal quotation 1154-55 marks and guilt simply by dore’s responding to the citation call pulling him over while he was

Thus, issue, to decide this we must con- possession “large of a amount” of crack sider the circumstances under which a 911 cocaine. Kaufman, United States v. interrogation involving reported ongoing Cir.1988) (holding that activity, criminal absent an ongoing emer- possession with intent to distribute can be gency,10has a “primary purpose proved of creat- based on defendant’s possession ing an out-of-court substitute for trial tes- larger of “a quantity than an ordinary user timony.” However, 1155. we need possess personal consumption”); 8. In the Court precedents, also decided Hammon v. may subject change. which be Indiana, - 829-32, Illinois, -, See Williams v. (2006). 165 L.Ed.2d 224 S.Ct. 2242 n. 183 L.Ed.2d 89 (noting, discussing when post- the Court's portions This is true at least for the that, precedents "[ejxperience might Crawford played calls that jury. portions were to the In yet holdings show that the in those cases of the calls redacted recordings from the reasons, should be reconsidered for played jury the caller referred to others, among expressed in the dissents the prior crimes of the defendant. [tjhose produced!;] decisions decisions are challenged We note that our conclusion that these this case and are to be present circumstances did “ongoing binding precedents, deemed but can and emergency” is based on the here”). Court’s current distinguished should be on the facts Hernandez-Beltran, descrip- in this case do not that v. calls meet States United Cir.1989) (same). (5th 224, 226-27 merely pro- The 911 caller not tion. did circumstances, a reasonable these Under report a narrative of the crime “for vide would position in the 911 caller’s person proving of or purpose establishing the that were concluded his statements have Bryant, fact.” 131 S.Ct. at 1153 some either for use at trial: being prepared not (citation omitted). Rather, caller re- the respond and promptly would police the ongoing drug trafficking an crime ported amount significant with a arrest Polidore gave police requisite the police, the thereby in possession, cocaine his of crack offense, that stop information to and asked to authorities sufficient evidence giving the to be police promptly dispatched for the crime without the defendant of a convict stop the crime as it continued. United See statements, police caller’s would Davis, v. Cir. States in time to Polidore and arrive arrest not 1982) (holding B with possession Unit of statements would have been the caller’s offense). continuing is a intent to distribute suggest do not mean to little use. We Although the situation not present did knew of the caller the elements “ongoing emergency,” caller was nev- offense, case but the caller charged aid, “seeking telling story ertheless police’s arrest clearly understood that [present] past.” or the about possession “large of of (em- 828, 831, 126 S.Ct. 2266 suffi of crack cocaine would be amount” added).12 sum, In prove phasis a criminal offense. cient to criminal reported the nature due to objective analysis An the statements ongoing possession offense—a activity—an operators of the 911 and the statements person the caller’s reasonable and actions of caller confirm that the have that his state thought would of the was not to (a) reporting ongoing street-level ments Bryant, for trial. elicit statements use at (b) asking that trafficking to 911 and drug posed by at 1155. The questions 131 S.Ct. to en promptly dispatched be gath- operators the 911 reflect an intent to possession arrest while in sure Polidore’s responding the information officers er cocaine, as an being were taken of crack and, if investigate neces- would need for trial testimo “out-of-court substitute sary, stop reported ongoing 131 S.Ct. at 1155.11 street-level ny.” drug trafficking; operators’ questions Moreover, although implied in the Court (as in not intended to learn “simply were a narra- “providing] that a 911 call Davis Crawford) happened what had any a crime imminent report tive absent in a past,” posed nor manner yield state- danger” would testimonial ments, “necessarily prosecu- ha[ve] 547 U.S. at caller would sure, assertion, by the Contrary we To be certain statements made to the dissent’s Confron- activity not "all but declared an end to past have 911 caller did concern criminal applicability declarations that tation Clause However, by Polidore. the district committed at 722. In- report crimes.” Dissent properly portions redacted court those stead, holding our is limited to play and did not them at trial. See calls requests immediate where a declarant (noting 547 U.S. at stop ongoing crime whose assistance por- courts "should redact or exclude person is such that a reasonable nature any become testi- tions of statement that have thought that his statements not have monial”). being taken as an “out-of-court substitute testimony.” Id. trial in ger, ]he tion mind when Id. not because [ answer[ed].” the 911 caller expects the (citation omitted). report at 1160-61 to be used later at trial with the bearing rather, caller there is a witness— although the 911 Similarly, ap- caller cloak anonymity surrounding 911 calls peared to have understood that his com- encourages that citizens to make emergen- an investigation ments would start that (cita- cy calls and not repercussion.”) fear prosecution, a criminal could lead to omitted).13 tion primary purpose of his statements was to dissent, citing one of our request police stopping assistance an sister cir- cuits and an commentator, influential provide and to ongoing police crime con- tends that statements made to the requisite with the information to authori- achieve ties with a full understanding that objective. Like a statement made to authorities will use them to investigate and ongoing emergency,” “resolve the call- prosecute a testimonial, crime are regard- “purpose er’s not to provide [was] a sol- less of whether those statements concern trial, emn declaration for use at but to an ongoing past 722; crime. Dissent at bring to an end an [drug traffick- — Cromer, 662, see United States v. 389 F.3d crime],” Illinois, ing v. Williams (6th Cir.2004) 674 (holding that -, 2221, 2243, “[state- 183 L.Ed.2d 89 ments ‘made to (2012) the authorities who will (citing Bryant, 1155), 131 S.Ct. at use them investigating and prosecuting though even the crime did not constitute crime, ... made with the full under- an “ongoing emergency.” See id. The standing they used,’ will be so are “simply acting caller was not aas precisely the sort of accusatory statements witness; was not testifying. []he What the Confrontation Clause designed ‘a [ ]he said was not weaker substitute for address”) (quoting Friedman, Richard D. testimony’ live at trial.” (citation The Search omitted). Basic 126 S.Ct. 2266 Confrontation: Principles, (1998)). 86 Geo. L.J. words, In other the caller’s statements That may well be a general useful stan- parte were not “ex communication^]” employ dard to when considering whether “evidentiary created products” given statement to authorities was testi- “aligned perfectly with their courtroom monial. 131 S.Ct. at (noting analogues.” Id. As in ‘wit- “[n]o that certain circumstances can render a goes ness’ into court” to report that a man statement testimonial if the declarant was is currently selling drugs out of his car and ... possible “focused on the prose- future police to ask the to come and arrest statements”). cutorial use of his man while he still drugs has the in his (“No possession. See id. goes ‘witness’ Under the limited circumstances of this proclaim into court to emergency case, however, we conclude that the call- seek help.”); see also United States v. er’s statements were nontestimonial even Brun, (8th Cir.2005) (“A 416 F.3d if clearly the caller understood that his call usually 911 call is made because the caller would “initiate investigative prosecuto- protection wants from an immediate dan- machinery.” rial Hadley, United States v. 13. We (a) also conclude questions that the relative provide infor additional informa- mality interrogations (b) of the two supports attempt our tion and to ensure that the holding that the caller lacked testimonial intent. would not arrest Polidore until after he left yant,

Br ques 131 S.Ct. at apartment 1160. The complex. These facts “make tioning occurred before the arrived distinguishable this case from the formal sta- proceeded relatively “disorganized in a fash tion-house Crawford." ion,” interrupted (citation omitted). as the operators’ caller Cir.2005) hearsay; accordingly, contained we n. (citation review the court’s decision to admit the previously- we have As discussed, objection 911 to for an recordings called over his abuse the declarant Watkins, selling drugs v. that Polidore of discretion. United States report (5th Cir.2009). apartment steps of an sitting on the while car, in his storing drugs building and

(2) po- the dispatch to operator asked the statement, Hearsay is “a other still in while he was to arrest Polidore lice by one made the declarant while tes than cocaine, and asked of crack possession tifying hearing, at the trial or offered arrest the not to operator the to tell matter prove to the truth of the evidence voluntarily drove down until he (citation omitted); see asserted.” Id. Fed. in the person A reasonable the street. (defining hearsay). “Testimo R.Evid. 801 thought his would not have caller’s to of the ny not used establish truth being prepared for use were statements pro assertion ... ‘does not fall under the trial; thus, primary that the we conclude hearsay.’” scriptions against the use of was not to create of the 911 calls Watkins, (quoting 591 F.3d 786 United testimo- substitute for trial an out-of-court Vizcarra-Porras, 1435, 889 F.2d States v. at 1155.14 ny. Bryant, 131 S.Ct. (5th Cir.1989)).15 1439 Federal Rule of Accordingly, hearsay testimony the 911 caller’s statements bars un Evidence 802 hearsay, statute, constitute testimonial Rules of did not less a federal Federal Evidence, statements was admissibility prescribed or other rules ... rules of evi- concern of federal Supreme provide “the otherwise.16 See Court dence, Moore, 246, not the Confrontation Clause.” States v. 748 F.2d United (5th Cir.1984) (“Hearsay generally inad

B unless it fits within one of the missible objected exceptions the 911 listed Fed.R.Evid. 803 and Polidore also 804.”) (citation omitted). grounds that recordings at trial on the assertion, (same). "Instead, (5th Cir.2005) to constitute Contrary to the we do dissent’s violation, 'the state- a Confrontation Clause is ''nontestimonial not hold that statement hearsay other ment must be used as prompts police solely it basis —in words, Rather, must be offered for the truth of the it the nature action.” Dissent at 722. ” v. asserted.’ United States matter reported ongoing activity criminal (6th Cir.2009) (citations that the asked the the fact caller Williams, omitted); S.Ct. at 2228 see immediately respond of- to end expert’s "testimony (holding d[id] components analysis. are critical of our fense Clause because that violate the Confrontation "accelerat[e] We also do not intend provision application no to out-of-court has dismantling Id. at 721. In- of Crawford." prove statements that are not offered stead, merely applied reasoning we have asserted”). truth of the matter precedents Supreme recent from the Court’s interpreting the Confrontation Clause to a dif- new version of the Fed "[a] 16.We note that went into effect on context. eral Rules of Evidence ferent part of the Federal December Similarly, we note that "the Confrontation Style Project.” United States v. Rules See Jean-Guerrier, the use of testimonial Clause 'does not bar 1091 n. Cir.2012). purposes changes other than establish- under the statements for Because made ” only,” stylistic ing project of the matter asserted.’ “are intended to be truth Williams, (quoting advisory at 2235 Craw- 801-803 committee’s Fed.R.Evid. 1354); note, quote new version of the ford, S.Ct. we will 541 U.S. at 59-60 n. Holmes, 406 F.3d Rules. see United States v. trial, hearsay the district court overruled Poli- vides that “describing At statements hearsay objection, finding condition, that the explaining dore’s or an event or made being in the 911 calls were immediately or while after the declarant prompted it,” offered for what the officers to perceived “are not excluded the rule go investigate to the location and against hearsay, regardless of whether the the truth of the place, first not for matter declarant is available as a witness.” Fed. alternatively 803(1). asserted. The district court R.Evid. hearsay basis for this statements, hearsay, that the if found exception “relies on the contemporaneous as an excited admissible utterance or as a ness of the event under consideration and existing statement of the caller’s then describing the statement that event. Be mental, emotional, physical condition. occur simultaneously, cause two almost 803(2),(3). See Fed.R.Evid. there is almost no ‘likelihoodof deliber [a] ” ate or misrepresentation.’ conscious appeal, On the Government maintains Co., Rock v. Gas & Oil that Huffco calls were not offered for the (5th Cir.1991) (citations omitted). truth of the matter asserted but instead to “explain dispatch of the officers to Here, the caller made his statements to location, Polidore’s their focus on the PT 911 as he observing Polidore’s actions Cruiser, subsequent discovery of crack shortly instance, thereafter. For less cocaine, willingness their to talk a per- than ten minutes after placing the first son on the scene that identified himself as call, the caller place observed Polidore caller, and their belief suspect that the drugs in a panel side door of his vehicle would return to the PT Cruiser.” Alterna- placed a second call while he was still tively, the Government asserts that observing drugs “right now.” Because present-sense impression exception to the (1) the caller’s statements described and hearsay applies rule because the state- explained personally events that he wit- ments 911 calls “were made contem- nessed and the caller made the state- poraneous[ly] with the caller’s observa- contemporaneously ments with his obser- tions of the events that he reported to the i.e., vation of the while he was events— dispatcher” and because “the scene of the observing very the events or soon thereaf- crime was consistent with that informa- ter—we hold that the statements were ad- tion.” present missible impression sense un- 803(1). (citations

We need not omitted); address whether der Rule Jackson, see United States v. Government offered the caller’s state 204 F.3d (5th ments for the truth of the matter asserted 1999 WL at *8 Cir. 1999) because we conclude that even if they were Dec. 17 (unpublished) (holding that a hearsay, the statements fell within the district court did not commit reversible present impression sense exception error admitting tape and transcript of 803(1) against hearsay.17 calls, rule pro- Rule which were made seconds after However, Candies, Inc., practical we note that aas mat- See Savoie v. Otto ter, recordings Cir.1982) the 911 (holding admitted for all party that when a is, purposes jury: in front jury request of the that limiting fails to a Rule 105 instruc- tion, purpose was never informed of the "simply having limited taken the which the Government intended to offer the the evidence was admissible for no recordings. requested Defense counsel jury never whatever and the should be instructed to jury requested be so totally disregard informed or any purpose^] [a]ny it for give the district jury limiting waived”) court regard accordingly in- error in this (internal struction under Federal Rule of Evidence 105. citation car, actions of both the declarant and interro from the trunk of escaped the callers argued, part, gators provide objective had evidence of the and the Government im- present primary purpose interrogation.” sense of the that the calls contained pressions).18 Bryant, 131 S.Ct. at 1160. Polidore ar that the gues tele conclude that the dis- Accordingly, we phone caller’s statements was testimonial abuse its discretion trict court did not stop because the caller wanted into evidence.19 admitting the 911 calls drug activity.” “all this The defendant Ill argues inquiry by oper also “[t]he selling drugs ator as to who is and the reasons, foregoing both the con- For the type drug only relevant to later crimi are viction and sentence nal prosecution.” Washing See Davis v. AFFIRMED. ton, 813, 822, S.Ct. (2006). L.Ed.2d 224 SOUTHWICK, LESLIE H. Circuit Judge, dissenting: frequent The declarant had witnessed majority

I that Confron- agree with drug dealing. His taken guidance Supreme from the tation Clause suggested context of the entire 911 call I change. Where dis- undergoing Court is intent to further a later criminal prosecu- that I believe we should not reach agree is example, tion. For the declarant stated he protections that reduces the a conclusion “trying anonymous get you to be further than the of the Sixth Amendment get drug all to these from dealers over majori- thus The permitted. Court has far here.”1 The declarant’s dismantling of Craw- ty accelerating is may “all stopping drug have been 36, 124 Washington, v. S.Ct. ford activity Sweetgum” by having over off (2004). That L.Ed.2d 177 is 158 defendant arrested without the declarant’s a desirable result. neither our role nor identify needing to himself. It enough operator the 911 wanted to ruling of the majority The extends the much assess the situation and obtain as Michigan Bryant, v. Supreme Court — -, 1143, 1160, information about Polidore. possible (2011). aiding respond- The the first operator L.Ed.2d 93 statements and “[T]he appeal, thereby 18. We that Polidore could have claimed failed to brief such a claim on note Thaler, by appeal that the district court erred waiving it. See McGowen v. 675 F.3d recordings admitting because their (5th Cir.2012) (holding that un- probative substantially outweighed value was waived). briefed issues are pursuant by danger prejudice a of unfair Federal Rule of Evidence 403. Because the filed, se, pro 19. Polidore has also motion for recordings directly implicated him in the court to consider whether he was denied crimes, potential- alleged could have right to counsel of his choice in dis- ly argued that the district court’s decision to However, deny pro trict court. we Polidore’s er- admit the evidence constituted reversible Cir. R. se motion as unauthorized. See 5th Carrillo, v. 20 F.3d ror. See United States ("Unless specifically 28.6 directed court (5th Cir.1994) (“The directly more order, motions, pro correspon- se briefs or implicates an out-of-court declaration the de- party repre- will not be filed if the dence fendant, greater danger prejudice. counsel.”). sented Conversely, does not di- when the statement defendant, probative rectly implicate the part played 1. This of the call was not for effect.”) (cita- outweighs prejudicial value jury. although Polidore raised tions But trial, objection 403 at he has under Rule gave 1161. The de- this caller some ers. indications of his motives, opera- not those of the specifically clarant’s animus towards Polidore and tor, problem here. drug create the towards generally. dealers Con- protection frontation is the constitutional ‘made to the authorities “Statements explore defendants have to known and in investigating who will use them respect, unknown motives. With I be- crime, ... made with the prosecuting majority errantly lieve the removes that understanding full will be so protection needed here. used,’ precisely accusatory are the sort of Confrontation Clause was designed to v. address.” United States (6th Cir.2004)

Cromer, Friedman, D.

(quoting Richard Confronta- Principles,

tion: The Search Basic (1998)) (omission Geo. L.J. can

original). imagine tempta- “One grudge tion that someone who bears a CO., HEIL d/b/a might police, have to volunteer to truthful- Environmental, Heil not, ly or information of the commission of Plaintiff-Appellee, crime, especially when that person is as- subject sured v. he will be to confronta- majority rejects tion.” Id. at 675. The COMPANY, EVANSTON INSURANCE the application of this rationale on the Defendant-Appellant. basis that the declarant knew his call No. 11-6252. prompt police surely action. Yet usual reason for 911 calls. I Appeals, United States Court of require read Davis to than a call more “to Sixth Circuit. provide report a narrative of a crime ab- any danger”; sent imminent what Argued: July opinion relied on was fact “call Decided and Filed: Aug. plainly a call help against bona fide physical threat.” 547 U.S. at majority S.Ct. 2266. The reads more reject guidance.

recent caselaw to I

would not. majority Bryant has taken from

holding that the lack ongoing of an emer-

gency does not make a declarant’s state- per testimonial,

ment se and all but de-

clared an end to Confrontation Clause

applicability to report declarations that agree crimes. While I

Bryant requires we look at more than

the absence of an ongoing emergency, I

do not see a basis for finding state-

ment solely nontestimonial on the basis it prompts police Indeed, action.

Case Details

Case Name: United States v. Kennedy Polidore

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 13, 2012

Citation: 690 F.3d 705

Docket Number: 09-40896

Court Abbreviation: 5th Cir.