How should courts treat anonymous tips in determining whether a legal basis exists to stop, arrest or search someone consistent with the Constitution?
That’s the question in a decision published Nov. 28 by New York’s Court of Appeals, which heard appeals from three men, all of whom were charged with crimes based on evidence obtained in part from calls to 911 by unidentified callers.
Consider the case of Dr. Eric Johnson, who pleaded guilty to several counts of driving while intoxicated following a breath test that showed Johnson had a blood-alcohol content nearly twice the legal limit. At trial, Johnson moved to exclude from evidence the results of the test and statements he made to the police after being pulled over on the night of October 1, 2011 while driving his blue BMW in upstate Ontario County.
Both the results of the test and his statements constituted the so-called fruits of an unlawful stop, Johnson contended.
Though the trial court admitted the evidence, the Court of Appeals agreed with Johnson that the call to 911 that led police to follow his car – the caller had reported seeing a blue BMW being operated by someone who appeared to be “sick or intoxicated” – lacked reliability sufficient to allow police to reasonably suspect criminal activity. According to the court:
The caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated. Although the deputy observed defendant commit a minor traffic infraction, this did not authorize the vehicle stop because he was outside his geographical jurisdiction at the time of the infraction.
At issue is the Fourth Amendment to the Constitution, which protects against arbitrary arrests and unreasonable searches by the government. As Judge Jenny Rivera observed in an opinion that dissented in part from the majority’s ruling:
Anonymous tipsters differ from known police informants, whose identities are not secret and whom police may have prior experience as reliable sources of information about criminal activity…The case law illustrates a general concern about the use of information from informants, in particular anonymous tipsters, as a basis for police intrusions because of the ease with which anonymity facilitates false reporting.
To find a tip sufficiently reliable for a determination of probable cause, courts in New York State follow a two-part test taken from rulings by the US Supreme Court in Aguilar v. State of Texas, a 1964 decision, and Spinelli v. US, a decision the court issued five years later. Taken together, the so-called Aguilar-Spinelli test requires a judge to conclude that an informant is reliable and that the informant has a basis of knowledge for his or her tip.
Six states, including New York, follow the Aguilar-Spinelli test. The rest of the union applies an analysis adopted in 1983 by the US Supreme Court that simply examines all the facts to see if they add up to probable cause. That means in New York, information supplied to police by someone who calls 911 cannot provide the basis for a search or seizure unless the government can establish the reliability of the informant’s knowledge and show that the informant is generally credible.
Tips can be credible when they predict the future behavior or movements of a suspect, or when the informant has a history of providing police with tips that turn out to be reliable.
Anonymous tips also can give rise to reasonable suspicion, which is the lesser level of proof that police need to frisk someone or to stop a vehicle when an officer suspects that criminal activity may be present.
Though a stop can be less intrusive compared with a search or arrest, the Constitution still requires that police have a basis for interfering with someone’s liberty based on information supplied anonymously. As Judge Sheila Abdus-Saalam explained in a concurring opinion:
As is true of an arrest premised on uncorroborated anonymous hearsay, a stop based on an unreliable tip may unjustly expose an individual to a high degree of physical intrusion without any credible cause for suspicion. If such stop were permitted, police could freely abuse the people on authority of the most preposterous reports, and malicious tipsters could easily use incredible rumors to convince the police to physically harass the targets of the tipster’s ire.
While such suspicion also demands that a tip be reliable in its assertion of illegality, New York courts forsake the Aguilar-Spinelli test in favor of examining all the facts when deciding whether a tip is reliable enough to justify a police stop.
In its ruling, the court let stand the guilty pleas of John DiSalvo and Costandino Argyris, who, following their indictments on varied weapons-related charges, asked the trial judge to suppress the items recovered from their persons and automobile as the fruits of an unlawful seizure.
According to the men, a 911 caller’s failure to predict their actions rendered the informant’s tip too unreliable to justify the stop of a Mustang they were driving through Queens on July 19, 2007.
“I saw a black Mustang, brand new black Mustang with like four guys and I saw one of them put in a big gun in the back of the car,” the caller told the operator. The caller described the men as “big burly white guys” though he said he did not know what they where wearing.
When the operator interrupted the caller and asked whether he wanted to provide his name and telephone number, the caller replied, “No, I don’t really want to, I just saw something and I say something, like they say.”
A few minutes later, Sergeant Louis Bauso, on patrol in his car, saw a Mustang which bore the license plate number relayed by report from 911. Bauso got out of his car, pointed at the Mustang and yelled at it to pull over. The driver disregarded Bauso, who returned to his car and pursued the vehicle.
Around that time, Officer Kashim Valles, on patrol in his car, saw the Mustang drive toward him. Valles used his car to cut off the Mustang, called for backup, got out of his car and pointed his gun at the vehicle. Bauso, his partner and about six other officers arrived.
All of the officers trained their guns on the Mustang while Valles shouldered his weapon and directed the Mustang’s occupants to leave the car.
DiSalvo emerged from the passenger seat with what Valles observed to be a gun in his waistband. Valles ordered DiSalvo to put his hands on the car, while Valles handcuffed him, recovering the gun and some cash.
Valles then ordered the remaining occupants to step out of the vehicle one by one. Argyris emerged wearing a bulletproof vest. When Valles searched Argyris he recovered a metal club and a switchblade. During a search of the car, Valles found a loaded .380 caliber handgun and a box of .9 millimeter ammunition on the back seat.