Sunday, December 7, 2014

What Constitutes Reasonable Suspicion In the Context of an Anonymous Tip

by
James Eckert, Esq.
Assistant Monroe County Public Defender

In People v Argryris ( _NY3d_, 2014 NY Slip Op 08220, 2014 WL 6633480 [11/25/14]), the Court of Appeals rendered a simple four-judge Memorandum decision on the issue of what constitutes reasonable suspicion in the context of an anonymous tip. Unfortunately, the memorandum fails to answer the question.

The Memorandum simply says that because (in the first two of the three consolidated appeals) there is record support for the findings of the suppression court, which was affirmed by the Appellate Division, the limited jurisdiction of the Court of Appeals ends there and does not permit further review of the facts. In the third case, which all seven judges agreed must be reversed, the memorandum said that under either of the proposed tests for determining reasonable suspicion, a conclusory anonymous call saying that someone’s driving demonstrated that they were either sick or intoxicated was insufficient to establish reasonable suspicion that the driver was DWI (and the deputy was outside of his jurisdiction when he observed the minor traffic infraction). The first two cases, involving co-defendants, are what I discuss from here on out.

Which brings us to the important and still unrsolved question: when the police receive an anonymous tip, and when they require reasonable suspicion for the actions under review by the suppression court, is the test Aguilar-Spinelli (A-S) (i.e. did the information from the caller establish a basis of knowledge and sufficient indicia of the caller's reliability?), or is the test Totality of the Circumstances ("does it feel right" aka "anonymous tips rock!"). Also unclear is what is the A-S rule in the context of reasonable suspicion determinations and what will it be going forward? Is A-S rendered meaningless by finding that accuracy as to mundane facts not indicative of knowledge of a crime (such as a man in a blue suit is crossing Main Street) proves the reliability and knowledge of the caller as to the important facts (he’s got a gun!).

Before I give an inevitably too brief explanation of the substance of the various opinions, let's play Judicial Sudoku

  Aguilar-Spinelli(Strong)          Aguilar-Spinelli(Weak)       Totality of the Circumstances

Defendant Loses                Abdus-Salaam                        Pigott
                                   Graffeo                                Smith

Defendant Wins                      Rivera                                Read?
                                                              Lippman

Judge Read joined in the dissent, implying that she does not regard the Aguilar-Spinelli test as quite as weak as Judges Abdus-Salaam and Graffeo, but she did not join in Judge Rivera's dissent. So I do not put her in the strong A-S category, either.

It seems to me that a five judge majority of the Court believes that Aguilar-Spinelli does apply to anonymous tips and the question of Reasonable Suspicion. Only Judges Smith and Pigott held that totality of the circumstances was the test.

On whether Aguilar-Spinelli should retain a strong test as to probable cause determinations, perhaps Judges Smith and Pigott would join Judges Rivera and Lippman in preserving the strong test.  Remember that whether A-S should be strong or weak when it comes to Probable Cause was not the issue in this case, so at worst some judges signalled a willingness to weaken A-S further in the context of Probable Cause. They didn't formally decide to do so here.

Now we get to the hard part. What is this A-S people keep talking about?

Someone who calls the police, yet gives them no way to determine their identity, has deliberately eliminated the checks which normally provide us with a reason to trust them. A face-to-face informant can theoretically be arrested for lying (of course, in theory she could also win an Olympic Gold Medal in Synchronized Spitting, but that’s not important right now). An anonymous tipster can bring down a SWAT team on someone whose political views she doesn’t like, or have an enemy harassed on the street, or ruin someone's day just for fun. So the issue on anonymous tips has always been, what is the tipster’s basis of knowledge, and why should we trust her? There is also the temptation to conclude that the person is trustworthy and knowledgeable simply by verifying things anyone could have seen.  A call comes in that a man in a blue suit is crossing Main Street and that he has a gun.  If police see a man in a blue suit cross main street, does that mean he has a gun? Verification of innocent facts is not a reliable basis upon which to confirm guilty facts.  This concern is the difference between weak A-S and strong A-S. If the police can confirm the validity of an anonymous tip by seeing something mundane, then as Judge Smith says:
“To the extent that such evidence -- which does not directly prove either the basis of the informant's knowledge or his truthfulness -- may satisfy either prong, the two prongs tend to merge, and the Aguilar-Spinelli rule begins to resemble the totality-of-the-circumstances test.”
What prompted the Court’s review of Aguilar-Spinelli in the context of reasonable suspicion is the recent 5-4 Supreme Court decision in Navarette v California (__ US __, 134 SCt 1683 [2014]).  In that case, a call came in from someone on the highway that a specifically described vehicle had just run the caller off of the road and was headed southbound on the named highway. What confirmed the police in trusting the person was that the vehicle was observed on the highway in question going in the direction claimed and at approximately the position it should have been in. The police pulled over the vehicle, smelled marijuana, and recovered 30lbs of it. The Supreme Court held that this was enough, since the caller was obviously an eyewitness to what she claimed. Now, the Supreme Court treated this nominally as an anonymous tip, but relied on someone hesitating before using a traceable cell phone to make such a report. The dissent’s retort was, “The claim to ‘eyewitness knowledge’ of being run off the road supports not at all its veracity; nor does the amazing, mystifying prediction (so far short of what existed in White) that the petitioners’ truck would be heading south on Highway 1" (Scalia, J.). 

This weak-to-the-point-of-being-worthless A-S rule is what two judges (Abdus-Salaam and Graffeo) relied upon:
“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.”
Thus, these judges approved a stop based on a tip that someone just saw someone put a gun into a Mustang and head down 28th street. Details supported the tipster: a big white guy had the gun, the gun itself was big, and it was in the back of the car.

Judge Read in dissent noted that, had Navarettebeen decided before the Court of Appeals adopted its current rule on anonymous tips, that the Court of Appeals might have decided the issue differently.  However, she would not alter the rule to follow the more relaxed recent Supreme Court decision.

Judges Rivera and Lippman wrote at length and would have both applied Aguilar-Spinelli to reasonable suspicion determinations, and preserved the stronger rule supported by Justice Scalia.  As Judge Rivera described the weaker test: “The People in Argyris and DiSalvo, claim that predictive information is unnecessary because 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.”  She quoted the Supreme Court dissent “So what?” 

In sum, Judge Rivera said 
“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.”
CONCLUSION: When there is no majority, the narrowest basis of the decision is the one that controls.  The narrowest basis for the decision was simply that there was record basis, under either of the tests, to support the decisions below, and therefore the Court of Appeals did not decide the issue of what test is used.  It only decided that it didn't need to decide the question to reach a result under these facts. This is in fact exactly what the Memorandum says. 

As to the future, it may be that on the question of whether an anonymous tip provides sufficient basis to establish reasonable suspicion, we use a weak A-S test which is the functional equivalent of the totality of the circumstances test, and which is in any event not a big improvement over Navarette from the US Supreme Court. This is what the four judges in the majority held in their concurrences. However, five judges explicitly rejected totality of the circumstances test, so it's hard to see that being the formal result of the court's decision.

The other big question is where A-S goes from here as it relates to probable cause. Judge Read would have kept A-S for reasonable suspicion, so I can't see her doing less for probable cause. The other dissenters wanted a strong A-S for all determinations. Judges Smith and Pigott equated the weaker A-S with totality of the circumstances. Maybe that means they want the weaker test in all cases, maybe not.  Judges Abdus-Salaam and Graffeo want a weak Aguilar-Spinelli for reasonable suspicion, and might well be happy with the same test for probable cause. However, PC is a higher standard, so one would expect a higher requirement to clear that hurdle, however it is articulated. 

With Judges Smith and Graffeo soon to be replaced, it is unclear what the test will be in 2015 and beyond.

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