Monday, November 11, 2013

This is how stop-and-frisk cases work

Debating stop and frisk is the latest craze. Ever since the Second Circuit's Halloween rebuke of District Judge Shira Scheindlin's handling of the NYC stop and frisk case, and the mayoral election of Bill DeBasio -- who said he will rein in stop and frisk in NYC -- the question now arises: what is stop and frisk, and how does it work? With exquisite timing, the Court of Appeals lays it out for us.

The case is United States v. Freeman, decided on November 7. In the middle of the night, the police received an anonymous tip in the form of two phone calls that said a Hispanic male, wearing a black hat and a white t-shirt, might have a gun near the Chase bank on East Gun Hill Road in the Bronx. The police did not know the identity of the tipster, and they did not learn her identity afterwards. When the police found a man who matched this description, he did not run away, and they seized him and found a gun on his person. Freeman was later convicted of unlawfully possessing a firearm.

The trial court should have suppressed the gun as the result of an illegal seizure, the Court of Appeals (Pooler and Droney) says, with Judge Wesley dissenting. In Terry v. Ohio, the Supreme Court said in 1968 that the Fourth Amendment authorizes stop and frisks if the police have reasonable suspicion to believe that someone is committing a crime. Hunches are not reasonable suspicion. And, as the Second Circuit says, "anonymous tips, without further corroboration by the police to demonstrate that the tip has sufficient indicia of reliability, are insufficient to provide the reasonable suspicion necessary for a valid Terry stop." It is not enough that the 911 call was recorded and the police had the phone number of the tipster. Nor is it enough that the police found a guy who fit the description from the anonymous call or that they guy actually had a gun. The Court concludes:

[E]ven though the call was recorded, the two factors that distinguish tips from known and unknown sources are both still operative in this case—the caller’s credibility cannot be assessed and there is no risk of consequences for a false report in this instance.
This decision accounts for the fact that anyone can implicate anyone for a crime at any time. The police need to know that the tipster is reliable and that the phone call is made in the understanding that an intentionally false tip will get the tipster in trouble. There was no risk of that here because no one knows the identity of the caller, and the police had no corroboration.

Judge Wesley dissents, stating that the calls were reliable enough for the police to take action, particularly since the caller's number was known the police and she knew the police were recording the calls. Judge Wesley reasons, in part:

the police officers who made the reasonable suspicion determination were confronted with multiple recorded phone calls from a woman who provided accurate descriptive information and a discernible call‐back number that yielded a voicemail message. This is not a case where a stranger in a muffled voice made a call from a payphone, or where someone dropped off an anonymous note. The officers reasonably presumed that the caller could be identified. They requested that the dispatcher call the tipster back to verify whether she actually saw a gun; the dispatcher in fact did call back on the officer’s request, albeit to no avail. The officers’ belief – the relevant focus in a reasonable suspicion inquiry – was that the tipster was a reachable individual, tied to a particular phone number and location.

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