The People v. Eric R. Johnson, The People v. John A. DiSalvo, The People v. Costandino Argyris

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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 198
The People &c.,
Respondent,
v.
Costandino Argyris,
Appellant.
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No. 199
The People &c.,
Respondent,
v.
John A. DiSalvo,
Appellant.
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No. 210
The People &c.,
Respondent,
v.
Eric R. Johnson,
Appellant.
Case Nos. 198 and 199:
Steven R. Kartagener, for appellants.
Donna Aldea, for respondent.
Case No. 210:
Edward L. Fiandach, for appellant.
Jeffrey L. Taylor, for respondent.
MEMORANDUM:
In People v Argyris and People v DiSalvo, the orders of
the Appellate Division should be affirmed. In People v Johnson,
the order of County Court should be reversed, the suppression
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motion granted and the accusatory instrument dismissed.
Regardless of whether we apply a totality of the
circumstances test or the Aguilar-Spinelli standard (see Spinelli
v United States, 393 U.S. 410 [1969]; Aguilar v Texas, 378 U.S. 108
[1964]), there is record support for the lower courts' findings
that the stops were lawful in People v Argyris and People v
DiSalvo. The police had reasonable suspicion to stop defendants'
vehicle based on the contents of a 911 call from an anonymous
individual and the confirmatory observations of the police.
Specifically, because sufficient information in the record
supports the lower courts' determination that the tip was
reliable under the totality of the circumstances, satisfied the
two-pronged Aguilar-Spinelli test for the reliability of hearsay
tips in this particular context and contained sufficient
information about defendants' unlawful possession of a weapon to
create reasonable suspicion, the lawfulness of the stop of
defendants' vehicle is beyond further review. Furthermore, under
these circumstances, the absence of predictive information in the
tip was not fatal to its reliability (compare People v Moore, 6
NY3d 496, 499 [2006] with Navarette v California, __US__, 134 S
Ct 1683, 1688-1692 [2014]). On this record, the lower courts did
not err in concluding that the police's other actions were lawful
(see People v Brnja, 50 NY2d 366, 372 [1980]).
In People v Johnson, whether evaluated in light of the
totality of the circumstances or under the Aguilar-Spinelli
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framework, the reliability of the tip was not established. 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 (see generally People v
DeBour [La Pene], 40 NY2d 210, 225 [1976]; cf. Navarette, 134 S
Ct at 1690-1692). 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 (see CPL 140.10 [2] [a]), and defendant's
actions in committing the violation did not elevate the deputy's
suspicion sufficiently to justify the stop of defendant's car.
The issue of whether suppression should be denied on the theory
that the deputy's violation of the statutory limits on his
jurisdiction does not warrant suppression is not before us.
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People v Constandino Argyris
People v John A. DiSalvo
People v Eric Johnson
Nos. 198, 199, 210
SMITH, J. (concurring):
Four Judges agree that we should affirm in the first
two of these cases and reverse in the third, but we disagree on
the rationale. The issue that divides us is whether to apply the
Aguilar-Spinelli test to stops that require only reasonable
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suspicion. We have never done so before, and I think we should
not do so now, because the Aguilar-Spinelli test needlessly
complicates and confuses the analysis of reasonable suspicion
issues.
Under the rule established by Aguilar v Texas (378 U.S.
108 [1964]) and Spinelli v United States (393 U.S. 410 [1969]),
whether information supplied by an informant to the police is
sufficient to provide probable cause for a search or a seizure is
decided by the application of a two-pronged test: Courts must
evaluate both the basis of the informant's knowledge and the
reliability or veracity of the informant himself (see People v
Johnson, 66 NY2d 398, 402-403 [1985]). The United States Supreme
Court, finding the test too rigid, abandoned it in Illinois v
Gates (462 U.S. 213 [1983]) in favor of
"totality-of-the-circumstances analysis" (id. at 233) -- a
polysyllabic way of saying that courts look at all the facts and
see if they add up to probable cause. But our Court has rejected
the Gates approach and continues to apply the Aguilar-Spinelli
rule to probable cause issues (Johnson, 66 NY2d at 406-407;
People v Griminger, 71 NY2d 635, 639 [1988]).
In applying the Aguilar-Spinelli rule, we have
moderated the rigidity of the two-pronged test by holding that
evidence corroborating the informant's statements may, in some
cases, satisfy either the basis-of-knowledge or the
veracity/reliability prong (People v Elwell, 50 NY2d 231, 234-235
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[1980] [basis-of-knowledge prong may be satisfied only by
"confirmation of sufficient details suggestive of or directly
related to the criminal activity informed about"]); People v
DiFalco, 80 NY2d 693, 695 [1993] ["the veracity component . . .
may . . . be satisfied by police corroboration of details that
are not, if taken separately, suggestive of criminal activity"]).
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.
While we have attenuated the Aguilar-Spinelli rule in
the probable cause context, we have not, so far as I know, even
applied it before today where the issue was reasonable suspicion.
We have decided several reasonable suspicion cases without any
reference to the Aguilar-Spinelli rule (People v Moore, 6 NY3d
496 [2006]; People v Salaman, 71 NY2d 869 [1988]; People v
Benjamin, 51 NY2d 267 [1980]; People v Stewart, 41 NY2d 65
[1976]). In People v Landy (59 NY2d 369, 375-377 [1983]), we
relied on the Aguilar-Spinelli rule in concluding that probable
cause was lacking, but then left that rule unmentioned in
upholding the search and arrest on the ground that a finding of
reasonable suspicion was supported by the record (see also People
v Chase, 85 NY2d 493, 501 [1995] [holding probable cause to be
lacking on Aguilar-Spinelli grounds; remitting the case, without
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further mention of Aguilar-Spinelli, for determination of the
reasonable suspicion issue]).
Today, two of my colleagues would "extend the
Aguilar-Spinelli standard to the determination of the legality of
investigatory stops precipitated by anonymous hearsay tips" (op
of Abdus-Salaam, J. at 2). This would mean, presumably, that in
such cases a court must find that a reasonable person could
suspect -- though not necessarily believe it probable -- that the
informant had an adequate basis of knowledge and was a credible
or reliable source. The second determination, the so-called
"veracity" prong, seems especially hard to make in anonymous tip
cases: there are obvious problems in evaluating the veracity of
an informant when the police do not know who the informant is.
Judge Abdus-Salaam's opinion overcomes this and any
other problems that the Aguilar-Spinelli test may present with a
minute analysis of the evidence in these cases. In Argyris and
DiSalvo, Judge Abdus-Salaam would find both prongs of the test to
be satisfied, relying, as to both prongs, on the content of the
recorded 911 call. In Johnson, she would find that the anonymous
call did not satisfy the basis-of-knowledge prong, and that no
corroborating evidence supplies the deficiency; she does not
discuss the veracity prong in deciding Johnson, but she could
easily reach a similar conclusion on that issue for essentially
the same reasons. I generally agree with the analysis of the
facts in Judge Abdus-Salaam's opinion, but I do not see what is
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gained by dividing that analysis into two prongs. Using a
totality-of-the-circumstances approach would lead us, more
quickly and with less complexity, to the same place.
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People of the State of New York v Costandino Argyris
No. 198
People of the State of New York v John DiSalvo
No. 199
People of the State of New York v Eric R. Johnson
No. 210
ABDUS-SALAAM, J. (concurring):
In considering the legality of police searches and
seizures instigated by hearsay information under article I,
section 12 of the Constitution of the State of New York, we have
adhered to the Supreme Court's mid-20th-century jurisprudence on
hearsay tips as laid out in Aguilar v Texas (378 U.S. 108 [1964])
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and Spinelli v United States (393 U.S. 410 [1969]). Thus, we have
held that hearsay information cannot provide a police officer
with probable cause to arrest an individual unless the hearsay
report reveals a reliable basis for the informant's knowledge and
shows that the informant is generally credible (see People v
Johnson, 66 NY2d 398, 406-407 [1985]). In holding that, under
any relevant legal standard, the tip in People v Argyris and
People v DiSalvo bears legally sufficient indicia of reliability
and the tip in People v Johnson does not (see memorandum opinion
at 2-3), the Court does not retreat from this state
constitutional tradition, and therefore I join the Court's
memorandum opinion in full.
I write separately to suggest further guidance on the
legal standards that, in my opinion, should apply to the
determination of the legality of investigatory stops precipitated
by anonymous hearsay tips. In my view, courts should apply the
Aguilar-Spinelli standard to determine the legality of
investigatory stops precipitated by anonymous hearsay tips.
Accordingly, I would hold that the police cannot physically seize
an individual based solely on an anonymous hearsay tip,
regardless of whether they seek to effect an arrest or a brief
investigatory stop, unless the tip satisfies the veracity and
basis-of-knowledge prongs of the Aguilar-Spinelli test.
Furthermore, I would conclude that the determination of whether a
tip provides the police with probable cause or reasonable
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suspicion depends on the quality of the tip's description of the
crime itself, as opposed to its statements regarding the
suspect's physical appearance and non-criminal conduct.
I
People v Argyris and People v DiSalvo
At about 2:15 p.m. on July 19, 2007, an unidentified
man called 911. The man told the 911 operator that he was near a
building at New Town Avenue and 31st Street in Astoria, Queens,
and that, as he had come out of the building, he had seen someone
with a gun. Specifically, the man said, "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 reported
the license plate number of the black Mustang. The caller told
the operator that the car had "just [gone]" down the block to
28th Street and then turned right onto that street heading toward
Astoria Boulevard. According to the caller, a grey van had been
accompanying the car. 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."
When questioned about the men's appearance, the caller
said that they were "tall big bully white guys." The operator
inquired about the men's clothing, and the caller said that he
did not know what they were wearing. He did state, "I'm sorry .
. . well, when the guy was putting the gun on the back of the car
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that I saw him [sic] . . . so I just made, I play stupid and I
went right into my car." The operator asked whether the caller
would wait for the police to arrive, and he responded, "Well, uh,
do you want me to wait around for them?" The operator stated,
"It's up to you." The caller said, "I don't really have to,"
adding, "OK?" The operator replied, "Alright," and the call
ended. The entire 911 call was recorded.
A few minutes later, several New York City police
officers on vehicular patrol in separate cars, including Sergeant
Louis Bauso, Officer Michael Castelli and Officer Kashim Valles,
received a radio run reporting the details contained in the 911
call. Bauso drove to the area described in the call and looked
for the black Mustang, but he did not find it. At around 2:30
p.m., Castelli spotted a black Mustang and a grey van on 31st
Street. The Mustang had the license plate number reported by the
911 caller. Castelli and his partner decided to follow the
vehicles, and Castelli's partner sent a radio transmission
stating that they were doing so. The record on appeal does not
reveal whether any of the other officers received Castelli's
partner's radio run.
Around that time, Sergeant Bauso saw the Mustang and
the van at a traffic light, and he pulled over at a bus stop and
got out of his car to get a better look at the license plate
number on the Mustang. After seeing that the license plate
number matched the 911 caller's description of it, Bauso
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allegedly pointed at the Mustang and called out, "Pull over."
The Mustang continued driving, and at a nearby intersection at
31st Street, the Mustang and the van went in separate directions.
Bauso got back in his car and pursued the Mustang.
Meanwhile, Officer Valles saw the Mustang drive toward
him and then turn onto 31st Street. Valles drove after the
Mustang, and soon thereafter, he stopped it by using his car to
cut it off. Valles called for backup, and he got out of his car
and pointed his gun at the Mustang. Sergeant Bauso, his partner
and about six other officers arrived, and as the backup officers
trained their guns on the Mustang, Valles holstered his weapon
and directed the occupants of the Mustang to exit the car.
Defendant John DiSalvo exited from the front passenger
seat of the Mustang, and Officer Valles observed that DiSalvo had
a gun in his waistband. Valles ordered DiSalvo to put his hands
on the Mustang, and after DiSalvo complied, Valles handcuffed
DiSalvo and searched him, recovering the gun and some cash.
Valles then continued to order the occupants of the Mustang to
exit one by one, and he handcuffed and searched each one. After
the driver was searched, defendant Costandino Argyris emerged
from the backseat wearing a bulletproof vest, which was visible
underneath his sweatshirt. When Valles searched Argyris, he
recovered a metal and leather club, as well as a switchblade,
from Argyris's person. Upon searching the car, Valles found a
loaded .380 caliber handgun under the driver's seat and a box of
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.9 millimeter ammunition on the back seat.1
Following their indictment on various weapons-related
charges, defendants moved to suppress the items recovered from
their persons and the Mustang as the fruits of an unlawful
seizure. At a hearing held on defendants' suppression motion,
the officers testified to the facts set forth above, and the
People presented the audio recording of the 911 call. Following
the presentation of the evidence, Supreme Court initially issued
a written decision granting defendants' suppression motion,
reasoning that, under the U.S. Supreme Court's decision in
Florida v J.L. (529 U.S. 266 [2000]), the 911 caller's failure to
predict defendants' future actions rendered his assertions too
unreliable to support the stop of the car.
Subsequently, the People moved for reargument and
reconsideration of the suppression decision. The court issued a
written decision granting the People's motion and, upon
reconsideration, vacating its prior suppression decision and
denying defendants' motion to suppress the physical evidence.
Discussing the relevant legal framework, the court noted that an
anonymous informant's hearsay report of criminal activity may
give rise to probable cause justifying an arrest if the report
1
Elsewhere on 31st Street, Officer Castelli stopped the
grey van. With the aid of backup officers, Castelli detained and
searched the occupants of the van, as well as the van itself,
recovering a variety of evidence and contraband in the process.
The legality of that police action is not presently before us.
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satisfies the two prongs of the Aguilar-Spinelli test. The court
further observed that, because a tip that satisfies the Aguilar-
Spinelli standard may support an arrest, such a tip may also be
reliable enough to create reasonable suspicion justifying the
lesser intrusion of an investigatory stop.
Under those legal standards, the court found that the
911 caller's statements here were reliable enough to authorize
Officer Valles to stop defendants' car. The court determined
that, because the 911 caller had provided an accurate description
of the Mustang, the van and their location, his report
established his credibility and thereby met the veracity prong of
the Aguilar-Spinelli test. And, the court concluded, the
caller's statements demonstrated the basis of the caller's
knowledge, in satisfaction of the basis-of-knowledge prong of the
Aguilar-Spinelli test, because the caller declared that he had
personally seen the occupants of the Mustang place a large gun
therein. The court also distinguished Florida v J.L., supra,
from this case. Additionally, the court rejected defendants'
claim that the officers had acted unreasonably in surrounding the
Mustang and ordering defendants out of the car at gunpoint. In
the court's view, the officers had taken those lawful precautions
out of a reasonable concern for their safety. Thus, the court
denied defendants' suppression motion in its entirety.
Thereafter, defendant Argyris pleaded guilty to two
counts of criminal possession of a weapon in the second degree
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(see Penal Law § 265.03 [1] [b]), one count of criminal
possession of a weapon in the fourth degree (see Penal Law §
265.01) and one count of unlawful possession of pistol ammunition
(see Administrative Code of the City of NY § 10-131-I [3]), and
he was sentenced to an aggregate determinate prison term of three
and one-half years. Defendant DiSalvo pleaded guilty to four
counts of criminal possession of a weapon in the second degree
(see Penal Law §§ 265.03 [1] [b]; 265.03 [3]), three counts of
criminal possession of a weapon in the third degree (see Penal
Law § 265.02 [1]) and one count of unlawful possession of pistol
ammunition (see Administrative Code of the City of NY § 10-131-I
[3]), and he was sentenced, as a second felony offender, to an
aggregate determinate prison term of six years, to be followed by
five years of post-release supervision. Defendants appealed from
the respective judgments against them, challenging Supreme
Court's suppression ruling.
The Appellate Division, Second Department, issued
separate decisions and orders affirming the judgments in each
case (see People v DiSalvo, 99 AD3d 811 [2d Dept 2012]; People v
Argyris, 99 AD3d 808, 808-811 [2d Dept 2012]). In People v
Argyris, the Appellate Division first concluded that "[t]he
Aguilar-Spinelli test . . . need not be satisfied where [as here]
the necessary predicate for justifying the police action under
review is the less demanding standard of reasonable suspicion"
(Argyris, 99 AD3d at 810 [internal quotation marks and citations
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omitted]). The court determined that Officer Valles had the
requisite reasonable suspicion to stop the Mustang because "the
report of the 911 caller, which was based on the contemporaneous
observation of conduct that was not concealed, was sufficiently
corroborated to provide reasonable suspicion for the stop" (see
id. [internal quotation marks and citations omitted]).
Furthermore, the court decided that the police had otherwise
acted lawfully when they ordered defendants out of the car at
gunpoint, and because the officers properly obtained the relevant
evidence from defendants and their car, Supreme Court had
correctly denied their suppression motion and accepted their
guilty pleas (see id. at 810-811).
In a separate decision and order citing its decision in
People v Argyris, the Appellate Division affirmed the judgment in
People v DiSalvo and remitted that case to Supreme Court for
proceedings regarding defendant DiSalvo's bail under CPL 460.50
(5) (see DiSalvo, 99 AD3d at 811-812). A Judge of this Court
granted defendants leave to appeal from the Appellate Division's
orders.
People v Johnson
At about 9:22 p.m. on October 1, 2011, a police
dispatcher radioed Yates County Sheriff's Deputy Arlyn
Cunningham, Jr., and told him that "a civilian had called 911 and
stated that she believed that the driver" of a blue BMW with a
particular license plate number was "sick or intoxicated" at the
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intersection of Route 245 and Sunnyside Road in the Town of
Italy, which is near the border between Yates County and Ontario
County. As far as the record shows, the 911 call was not
recorded in any way.
Deputy Cunningham, in his marked patrol car, started
driving south on Route 245 in search of the BMW. Cunningham
drove to the intersection referenced in the 911 call, but he did
not see the BMW. After "decid[ing] which was the most probable
route of travel" for the BMW, Cunningham continued driving south
on Route 245 and crossed into Ontario County.
Deputy Cunningham entered the Town of Naples, and he
stopped at a stop sign at the intersection of Route 245 and Route
21. At the stop sign, he saw the blue BMW with the license plate
number described in the 911 caller's report. The BMW turned left
onto Route 21. As Cunningham followed the BMW, that vehicle went
a short distance and then made a "hasty" right turn onto Tobey
Street. In particular, the BMW activated its turn signal at the
last moment, made a wide right turn, went briefly into the lane
of Tobey Street used by oncoming traffic and then quickly entered
the correct lane. Cunningham turned onto Tobey Street and
activated his emergency lights and siren. As Cunningham would
later testify at the suppression hearing in this case, he pulled
over the BMW based on his suspicion that the driver was driving
while intoxicated and also upon his observation of the driver
committing a traffic violation. However, Cunningham knew that he
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could not arrest the driver for the traffic violation because
relevant statutes prevented him from arresting someone for a
traffic violation outside of Yates County (see CPL 140.10 [2]
[a]; cf. CPL 140.10 [1] [b]).
Deputy Cunningham approached the BMW, and he saw
defendant, Dr. Eric Johnson, in the driver's seat, accompanied by
a female in the passenger's seat. Cunningham noticed that
defendant had glassy eyes, a fixed gaze and breath that smelled
strongly of alcohol. Cunningham asked defendant to divulge his
personal identifying information and his activities that evening.
In response, defendant fumbled through his wallet for his
driver's license and slurred his words, further convincing
Cunningham that he was intoxicated. Cunningham radioed the
dispatcher, reported that he had stopped defendant's car and
requested that an Ontario County Deputy come to the scene to
assist him.
About half an hour later, Ontario County Sheriff's
Deputy David Drake responded to the scene, where he also saw
defendant exhibiting telltale signs of intoxication. Drake had
defendant perform three field sobriety tests, all of which
defendant failed. Concluding that defendant had been driving
while intoxicated, Drake arrested defendant on that charge and
transported him to the station house. There, defendant agreed to
take a breath test to measure his blood alcohol content, and the
test results revealed that defendant had a blood alcohol content
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of 0.15 percent by volume -- nearly twice the legal threshold for
driving while intoxicated under Vehicle and Traffic Law ("VTL") §
1192 (2).
After being charged with several counts of driving
while intoxicated, defendant moved to suppress his statements to
the police and the results of the breath test on the ground that
such evidence was the fruit of an unlawful vehicle stop
unsupported by reasonable suspicion or probable cause. At a
suppression hearing in Town Court, Deputies Cunningham and Drake
testified to the facts described above.
Following the hearing, Town Court issued a written
decision denying defendant's suppression motion in its entirety.
The court concluded that Cunningham had properly stopped and,
with the aid of Deputy Drake, lawfully arrested defendant.
According to the court, the 911 caller's tip about a possible
incident of driving while intoxicated had authorized Cunningham
to follow and "close in" on defendant's car. Once Cunningham saw
defendant make a wide right turn, the court opined, Cunningham
had "justification for the stop and investigation of a possible
crime of DWI." And, given that Cunningham saw defendant exhibit
signs of intoxication upon stopping the car, Cunningham and Drake
had the right to arrest defendant for driving while intoxicated.
Consequently, the court ruled, defendant's statements and the
breath test results had been lawfully obtained pursuant to a
valid stop and arrest.
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Defendant moved for reargument, which the court denied.
Subsequently, defendant pleaded guilty to a misdemeanor count of
driving while intoxicated (see VTL § 1192 [3]), and he was
sentenced to a six-month suspension of his driver's license, a
conditional discharge and various fines. Defendant appealed.
County Court affirmed the judgment. County Court
decided that Deputy Cunningham had no authority to stop defendant
for the traffic violation of making a wide right turn, saying,
"Inasmuch as the deputy who [had] stopped the vehicle, Deputy
Cunningham, did not view the defendant drive his vehicle in Yates
County, Deputy Cunningham was without authority to stop the
defendant for a traffic infraction." Nonetheless, County Court
determined that the 911 caller's tip had given Cunningham
reasonable suspicion that defendant had been driving while
intoxicated, thereby authorizing Cunningham to stop defendant's
car for that crime even in another county. Specifically, the
court decided that, because the tip had accurately identified
defendant's car and approximate location, it was reliable enough
to establish reasonable suspicion, especially when coupled with
Cunningham's personal observation of defendant committing a
traffic violation. Thus, the court concluded that defendant's
suppression motion had been properly denied and affirmed the
judgment. A Judge of this Court granted defendant leave to
appeal.
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II
A
To be reliable enough to establish probable cause for
an arrest as a matter of state constitutional law, an anonymous
hearsay informant's report of criminal activity must: (1) provide
sufficiently detailed information to indicate the informant's
reliability as an informant, or in other words, his or her
veracity; and (2) convey information showing a reliable basis for
the informant's knowledge of the reported illegal activity (see
People v Edwards, 95 NY2d 486, 495 [2000]; Johnson, 66 NY3d at
406-407; People v Elwell, 50 NY2d 231, 236-237 [1980]; People v
West, 44 NY2d 656, 657 [1978]; see also Spinelli, 393 U.S. 412-413;
Aguilar, 378 U.S. at 114-115). In adopting this rule under the
state constitution, we have refused to follow the U.S. Supreme
Court's decision in Illinois v Gates (462 U.S. 213 [1983]), which
holds that the two prongs of the Aguilar-Spinelli test are merely
"relevant considerations in the totality-of-the-circumstances
analysis that traditionally has guided probable-cause
determinations" under the Fourth Amendment (Gates, 462 U.S. at 233;
contrast Johnson, 66 NY3d at 406-407).
Just as reliable hearsay can supply the police with
probable cause, such hearsay can give rise to reasonable
suspicion, which is the lesser level of suspicion required to
authorize an investigatory stop of a person or a moving car under
the four-tiered framework of People v DeBour -- also sometimes
called a level-three stop under DeBour or, in federal
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constitutional parlance, a Terry stop (see Navarette v
California, __US__, 134 S. Ct. 1683, 1687-1688 [2014]; Adams v
Williams, 407 U.S. 143, 147 [1972]; Terry v Ohio, 392 U.S. 1, 20-27
[1968]; People v Landy, 59 NY2d 369, 376 [1983]). In the past,
we interpreted the state constitution to permit a level-three
stop based on a hearsay report that did not meet both prongs of
the Aguilar-Spinelli standard for reliability (see People v
Salaman, 71 NY2d 869, 870 [1988]; Landy, 59 NY2d at 376). Even
then, we did not retreat from our general admonition against
police reliance on unreliable anonymous tips, noting that hearsay
information of that kind was "the weakest sort" of support for a
forcible detention (DeBour, 40 NY2d at 224). Subsequent
developments in federal constitutional jurisprudence cast
significant doubt on our prior holdings that "unsubstantiated
hearsay" reports of criminality are reliable enough to authorize
the police to conduct a level-three stop supported by reasonable
suspicion (Landy, 59 NY2d at 376).
The relevant changes in federal law originated in
Alabama v White (496 U.S. 325 [1990]), in which the U.S. Supreme
Court explained that the police cannot detain someone based on
completely uncorroborated hearsay and may only act on tips
bearing significant indicia of reliability. In that case, an
anonymous hearsay tip apprised the police of the movements of a
suspect in detail and alleged that the suspect would have drugs
in an attaché case (see White, 496 U.S. at 327). Although the
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police did not see the case upon spotting the suspect, they
followed her and stopped her before she reached the destination
reported in the tip (see id.). The police then recovered a case
of drugs from the suspect's car (see id.). The Supreme Court
upheld the legality of the stop, finding that this was a "close
case" but that the tip bore sufficient "indicia of reliability"
to give the police reasonable suspicion to stop the suspect's car
(id. at 327-332). The Court found it particularly significant
that the tip predicted the suspect's movements, as such
predictive information could only have come from a person with
reliable insider knowledge of the suspect's affairs (see id. at
331-332). Accordingly, under White, an anonymous tip cannot
support the stop of a car unless it bears sufficient indicia of
reliability under the totality of the circumstances, and one
important indicium of reliability is a tip's prediction of the
future behavior of the suspect.
Subsequently, in Florida v J.L., the Supreme Court
invalidated a stop predicated upon a bare-bones tip while
suggesting that not all tips need the sort of predictive
information discussed in White to be reliable. In J.L., an
anonymous caller, whose call was not recorded, told the police
that "a young black male standing at a particular bus stop and
wearing a plaid shirt was carrying a gun" (J.L., 529 U.S. at 268).
Based on the tip, the police stopped 15-year-old J.L. merely
because he matched the description, and they recovered a gun from
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him (see id.). They also frisked two other men who were standing
near him, despite the fact that the tip had not mentioned those
individuals (see id.). The Supreme Court held that the stop was
illegal because "[t]he tip in the instant case lacked the
moderate indicia of reliability present in White and essential to
the Court's decision in that case," and hence the tip did not
provide the police with reasonable suspicion (id. at 271). At
the same time, the Court observed that the absence of predictive
information was not the only source of the deficiency in the tip,
as the tip was also unreliable because the "unknown,
unaccountable informant . . . neither explained how he knew about
the gun nor supplied any basis for believing he had inside
information about J.L." (id. [emphasis added]). In a
concurrence, Justice Kennedy and Chief Justice Rehnquist
reenforced this point, suggesting that indicia of reliability
such as recording of an anonymous 911 call might allow the police
to stop a suspect, regardless of the presence or absence of
predictive information (see id. at 274-276 [Kennedy, J.,
concurring]).
Given White's and J.L.'s reliability requirements for
anonymous tips underlying Terry stops, we have subsequently
abandoned certain aspects of our prior precedent permitting a
stop based on "unsubstantiated hearsay" (Landy, 59 NY2d at 376),
acting on constraint of federal constitutional law. For example,
in consolidated appeals in People v William II and People v
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- 18 - No. 198, 199, 210
Rodriguez, we followed J.L.'s stricter approach to the
reliability analysis under the federal constitution, invalidating
the stops in both cases based on tips that, in our view, were not
sufficiently reliable under J.L.'s mandate (see People v William
II, 98 NY2d 93, 98-100 [2002]). Specifically, we decided that,
since the tips lacked both predictive information and any
indication that the informants had firsthand knowledge of the
relevant crimes, the tips were unreliable "[u]nder the
requirements of Florida v J.L." (id. at 99). Thus, in William
II, we necessarily rejected certain facets of our prior decisions
that established a low threshold for reliability in the
reasonable suspicion context. In particular, that case stands
for the proposition that, under the Fourth Amendment, an
anonymous tip is unreliable if it is not made via 911, does not
include a statement of the informant's firsthand knowledge of the
contents of the report and does not provide any predictive
information. In reaching that conclusion, we did not conduct any
independent state constitutional analysis of the reliability of
the tips at issue in William II, instead relying exclusively on
U.S. Supreme Court precedent.
More recently, in People v Moore (6 NY3d 496 [2006]),
we again evaluated the reliability of an anonymous tip under the
federal constitution and concluded, in part based on the lack of
predictive information in the tip before us, that the tip was not
sufficiently trustworthy to give rise to reasonable suspicion
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(see Moore, 6 NY3d at 497-501). In doing so, we relied on
William II's interpretation of J.L., holding that the tip at
issue, which did not feature any predictive information, lacked
any suggestion of the informant's firsthand knowledge of the
crime and was contradicted by the officers' observations at the
scene, was not sufficiently reliable to authorize the police to
conduct an investigatory stop of the suspect (see id. at 498-
501).
In Moore, we also said that "[a]n anonymous tip cannot
provide reasonable suspicion to justify a seizure, except where
that tip contains predictive information -- such as information
suggestive of criminal behavior -- so that the police can test
the reliability of the tip" (id. at 499 [emphasis added]).
However, that pronouncement was not essential to our holding. In
deciding that the tip implicating the suspect was unreliable,
rather than relying on the absence of predictive information, we
cited numerous other aspects of the tip that called its
credibility into doubt. Thus, our comment about the possible
necessity of predictive information was dicta based on our
understanding of federal constitutional law at the time, and we
did not establish a predictive information requirement
independently rooted in the state constitution.
After our decision in Moore, the U.S. Supreme Court
explained in Navarette v California that predictive information
is not the sine qua non for the reliability of an anonymous
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hearsay tip under the federal constitution. In Navarette, a
police dispatch team from one county in California relayed the
contents of a 911 call to a dispatch team in another county (see
Navarette, 134 S. Ct. at 1686). The reporting dispatchers
described the call to the other team as follows: “[s]howing
southbound Highway 1 at mile marker 88, Silver Ford 150 pickup.
Plate of 8-David-94925. Ran the reporting party off the roadway
and was last seen approximately five [minutes] ago.” (id. at
1686-1687). The receiving dispatch team, in turn, transmitted
the information to highway patrol officers (see id. at 1687).
Roughly 10 minutes later, a highway patrol officer saw the above-
described truck near mile marker 69 -- not far from marker 88
referenced in the 911 report (see id.). About five minutes
later, the officer pulled over the truck, and another officer
joined him at the scene (see id.). When the officers approached
the truck, they smelled marijuana and, upon searching the
vehicle, recovered 30 pounds of that substance (see id.). The
officers arrested Lorenzo and Jose Navarette, who were the driver
and passenger in the truck (see id.).
By a vote of five to four, the Supreme Court affirmed
the California courts' decisions denying suppression of the drugs
(see id. at 1686-1692). The Court concluded that the 911 call,
as conveyed via the dispatchers, had provided the patrol officers
with reasonable suspicion supporting their stop of the
Navarettes' truck because, "[e]ven assuming for present purposes
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that the 911 call was anonymous, . . . the call bore adequate
indicia of reliability for the officer to credit the caller’s
account" of events (id. at 1688). In the Court's view, "[b]y
reporting that she had been run off the road by a specific
vehicle -- a silver Ford F-150 pickup, license plate 8D94925 --
the caller necessarily [had] claimed eyewitness knowledge of the
alleged dangerous driving," which "len[t] significant support to
the tip’s reliability" (id. at 1689). The Court distinguished
J.L. from the case before the Court on the basis that, unlike the
tipster in J.L. who "provided no basis for concluding that [he]
had actually seen the gun," the 911 caller in this case evidently
had personally witnessed the truck driver's unlawful drunk
driving (id. at 1689).
The Court further determined that the tip contained
information showing that the caller was telling the truth,
including the contemporaneous nature of the tipster's report and
the officers' success in corroborating the report's description
of the truck's appearance and location within a short time of
receiving the dispatch about it (see id.). The Court also stated
that, since "a false tipster would think twice before using" an
emergency 911 system that allows the authorities to obtain the
tipster's telephone number and to record the call for future
voice identification, the instant tipster's decision to make her
report via the 911 system further reflected her veracity (id. at
1689-1690). In addition to finding the tip reliable, the Court
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- 22 - No. 198, 199, 210
concluded that the caller's report had provided the officers with
reasonable suspicion that the driver of the truck had engaged in
criminal, as opposed to innocuous, activity because the report
noted that the driver had run the caller off the road in a
telltale sign of unlawful drunk driving (see id. at 1690-1692).
The dissenting Justices concluded that the anonymous
tip was not sufficiently corroborated to establish reasonable
suspicion (see id. at 1692-1694 [Scalia, J., dissenting]).
Noting that in White the Court had found an anonymous tip to be
reliable based on the predictive information reported by the
tipster, the dissent pointed out that no similar predictive
information bolstered the tip accusing the Navarettes (see id. at
1693). The dissent stated, "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" (id. at 1693 [emphasis in original]).
Otherwise, the dissent concluded that little, if
anything, demonstrated the reliability of the 911 caller's
report, and the dissent took issue with the majority's reliance
on the caller's use of the 911 system, saying:
"Finally, and least tenably, the Court says
that another 'indicator of veracity' is the
anonymous tipster’s mere 'use of the 911
emergency system.' . . . But assuming the
Court is right about the ease of identifying
911 callers, it proves absolutely nothing in
the present case unless the anonymous caller
was aware of that fact. 'It is the tipster’s
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- 23 - No. 198, 199, 210
belief in anonymity, not its reality, that
will control his behavior.' There is no
reason to believe that your average anonymous
911 tipster is aware that 911 callers are
readily identifiable." (id. at 1692-1694
[internal citations omitted] [emphasis in
original]).
In light of the majority and dissenting opinions in
Navarette, it is clear that, under the federal constitution,
predictive information is not an essential indicium of
reliability necessary to support a vehicular stop based on an
anonymous tip, for the tip in Navarette included no such
information. Rather, other factors, such as a tipster's
statement indicating that he or she personally observed someone
engaged in suspicious behavior, may supply the requisite indicia
of reliability that allow the tip to serve as the basis for a
stop (see Navarette, 134 S. Ct. at 1688-1689). Accordingly, our
passing comment in Moore that "[a]n anonymous tip cannot provide
reasonable suspicion to justify a seizure, except where that tip
contains predictive information" (Moore, 6 NY3d at 499) is no
longer an accurate statement of federal constitutional law (cf.
memorandum opinion at 2). However, there remains a question as
to whether it should become the law of New York under the state
constitution.
B
In the wake of Navarette, the parties in the instant
cases propose various state constitutional tests for determining
whether an anonymous hearsay account of criminal activity is
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sufficiently reliable to authorize a brief investigatory stop of
a person or his or her automobile. Defendants in all three cases
urge us to hold that the state constitution forbids a police
officer to detain a suspect based on an anonymous tip unless the
tip contains predictive information. In Argyris and DiSalvo, the
People press for adoption of Navarette's totality-of-the-
circumstances analysis as the law of New York. Regardless of the
proper baseline for the reliability of a tip supporting a stop,
the People contend that we should not prevent the police from
stopping a suspect based on a tip that complies with the Aguilar-
Spinelli rule. In Johnson, the People ask us to overrule our
prior decisions adopting the Aguilar-Spinelli test for the
reliability of a tip in the probable cause context. Instead of
the Aguilar-Spinelli standard, the People maintain, our state
constitutional jurisprudence should employ the analyses in Gates
and Navarette to determine whether an anonymous tip can create
probable cause or reasonable suspicion.
I would not adopt wholesale the standards advocated by
the parties under the state constitution. Instead, for the
reasons that follow, I would hold that, under the state
constitution, the police may not rely on an anonymous tip to
briefly detain or arrest a suspect unless the tip satisfies both
prongs of the Aguilar-Spinelli test.
In our existing search and seizure jurisprudence under
the state constitution, we have not set forth any clearly defined
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- 25 - No. 198, 199, 210
minimum standard of reliability in an anonymous tip that permits
a police officer to conduct a DeBour-level-three stop.
Nonetheless, our longstanding practice of granting New York
citizens enhanced protection against unwarranted police
intrusions based on hearsay, which originally prompted us to
incorporate the Aguilar-Spinelli rule into probable cause
determinations, supports the extension of the Aguilar-Spinelli
rule to the evaluation of a level-three stop.
In that regard, although the federal and state
constitutions' search and seizure provisions first arose from a
shared fear that the sovereign might oppress the governed by
arresting them upon "common rumor and report rather than upon
proof of reasonable grounds for believing a crime to have been
committed" (Elwell, 50 NY3d at 236), this concern has taken on
special significance under the state constitution (see People v
Grimminger, 71 NY2d 635, 638-641 [1988]; Johnson, 66 NY2d at 406-
407; Elwell, 50 NY2d at 241). For that reason, we have rejected
Gates and adhered to the Aguilar-Spinelli standard for evaluating
the reliability of a tip as the basis for an arrest (see People v
Grimminger, 71 NY2d 635, 638-641 [1988]; Johnson, 66 NY2d at 406-
407; Elwell, 50 NY2d at 241). And, the same concern that caused
us to follow the Aguilar-Spinelli rule in the arrest context is
still valid today and applies with equal force to investigatory
stops precipitated by anonymous tips. As is true of an arrest
premised on uncorroborated anonymous hearsay, a stop based on an
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- 26 - No. 198, 199, 210
unreliable tip may unjustly expose an individual to a high degree
of physical intrusion without any credible cause for suspicion.
If such stops were permitted, the 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 tipsters' ire.
As in the arrest context, the state constitution must reduce
these dangers by precluding the police from physically seizing an
individual based on a tip that does not meet Aguilar-Spinelli's
reliability criteria.
In addition, the application of the Aguilar-Spinelli
test to anonymous hearsay reports underlying investigatory stops
furthers "the aims of predictability and precision in judicial
review of search and seizure cases" (Johnson, 66 NY2d at 407).
Because we have used the Aguilar-Spinelli test to judge the
reliability of hearsay tips for the past 39 years (see People v
Hanlon, 36 NY2d 549, 556 [1975]), defendants have relied on that
standard as a basic guarantee of their rights, anchoring their
expectations regarding the legality of a seizure and the
admissibility of evidence obtained therefrom in the Aguilar-
Spinelli framework. Likewise, New York law enforcement officers
have become accustomed to the need to conform their practices to
the dictates of the Aguilar-Spinelli rule, and there is no
evidence or logical basis on which to conclude that the law
enforcement community has found the demands of the rule to be
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incomprehensible or unusually burdensome. Given that our state's
jurists have also applied the Aguilar-Spinelli doctrine routinely
and without apparent difficulty in the arrest context, they
should be able to reliably and fairly employ that standard when
deciding whether a tip is reliable enough to support a stop,
thereby enhancing the predictability of judicial review.
Although defendants find the Aguilar-Spinelli test too
lax and the People characterize it as too strict, both criticisms
principally derive from a shared belief that the test's two
prongs do not independently add much of value to the reliability
determination and ignore other relevant indicia of reliability or
flaws in a given tip. My concurring colleague shares this
concern (see opinion of Smith, J., concurring, at 3-4). But our
precedent readily answers those charges. As we explained in
People v Rodriguez (52 NY2d 483 [1981]) and People v DiFalco (80
NY2d 693 [1993]), each prong of the Aguilar-Spinelli test acts as
a vital independent safeguard against unwarranted governmental
intrusions based on unreliable hearsay. The basis-of-knowledge
prong guarantees that the police do not forcibly detain a citizen
pursuant to the report of an informant who is honest but has
relied on incomplete secondhand knowledge of the relevant events
(see DiFalco, 80 NY2d at 698; Rodriguez, 52 NY2d at 491). The
veracity prong separately ensures that the police will not stop
someone simply because an unscrupulous informant, who possesses
plenty of accurate personal knowledge of what happened, twists
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- 28 - No. 198, 199, 210
the facts to falsely accuse the suspect of a crime (see DiFalco,
80 NY2d at 698-699; Rodriguez, 52 NY2d at 488-490). The twofold
framework accounts for the reality that a tipster's surfeit of
honesty cannot fully compensate for a deficit in his knowledge
(and vice versa), regardless of what other types of information
in the tip might be deemed indicia of reliability under
Navarette. Thus, the Aguilar-Spinelli test's separate prongs
establish adequate protections against seizures based on
unreliable hearsay tips while simultaneously providing a
practical and analytically useful lens through which to view the
trustworthiness of such tips.
The People ask us to abandon the Aguilar-Spinelli test
on the theory that its inflexibility has made it intolerably
difficult for the police to comply with. The People claim that,
because every state in the Union, save for New York and five
others, has rejected the Aguilar-Spinelli standard and adopted
the Gates analysis, those other jurisdictions' experiences with
the Aguilar-Spinelli rule must have proven that the rule is
unworkable and wholly incompatible with effective law
enforcement. However, while the considered opinions of other
jurisdictions often carry significant weight in our evaluation of
legal doctrine, I do not find the out-of-state authority cited by
the People to be a sufficiently compelling basis on which to cast
aside the Aguilar-Spinelli rule. Those out-of-state decisions do
not compensate for the absence of proof that the Aguilar-Spinelli
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rule has intolerably taxed the New York law enforcement community
over the decades in which we have applied the rule. And,
although it is generally desirable to maintain uniformity with
the law of other jurisdictions when doing so does not compromise
a significant public policy or legal principle unique to New
York, we have already held that considerations of uniformity in
the evaluation of anonymous tips must yield to "aims of
predictability and precision in judicial review of search and
seizure cases and the protection of the individual rights of our
citizens," which are "best promoted by applying [the] State
constitutional standards" embodied in the Aguilar-Spinelli
standard (Johnson, 66 NY2d at 407).
For their part, defendants and my dissenting colleagues
(see opinion of Rivera, J., at 2, 13-16) interpret Moore as
creating a state constitutional rule that, even where a tip meets
the Aguilar-Spinelli standard, it cannot support the temporary
detention of a suspect if it does not also contain predictions of
the suspect's future activities. However, for reasons I have
already explained, Moore does not establish such a state
constitutional rule. Nor do I now perceive any reason to create
a special predictive information requirement under the state
constitution because the Aguilar-Spinelli standard fully accounts
for the value of the type of predictive information discussed in
White and J.L. As the Supreme Court noted in White, an anonymous
tip containing predictive information is highly reliable
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precisely because it shows "not only that the [tipster] [i]s
honest," i.e., that his or her veracity is established, "but also
that [the tipster] [i]s well informed," meaning he or she has a
reliable basis of knowledge of the suspect's crime (White, 496 U.S.
at 332). In other words, a tip's prediction of the suspect's
future activities is simply one of many possible pieces of
information that can satisfy the basis-of-knowledge prong of the
Aguilar-Spinelli test. Therefore, the presence or absence of
predictive information in a tip already carries its proper
significance in the Aguilar-Spinelli framework and need not be
transformed into an independent prerequisite for a finding of
reliability.
According to defendants, a predictive information
requirement for the reliability of an anonymous tip is necessary
to ensure that the police can "test" the credibility of the tip
via their own observations of the behavior predicted by the
tipster. However, when compared to other forms of information
that satisfy the basis-of-knowledge prong of the Aguilar-Spinelli
test, predictive information does not necessarily make the police
more or less capable of "testing" the truthfulness of a tipster's
account of the crime itself at the constitutionally critical
juncture; even when armed with predictive information, the police
still must usually decide whether to seize a suspect before they
can personally observe that the suspect has committed or will
commit a crime as described by the tipster.
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- 31 - No. 198, 199, 210
White illustrates this point. There, the tipster gave
the police exact predictions of the suspect's future movements
and made an allegation that the suspect would be carrying a case
full of drugs, but before detaining the suspect, the police did
not personally observe her holding the case and were unable to
test the truthfulness of the tipster's report that she possessed
drugs (see White 496 U.S. at 327). It was only after the police
stopped the suspect and searched her car that they were able to
confirm that the tipster had accurately reported the suspect's
possession of the drugs (see id.). Hence, prior to the stop, the
predictive information in the tip did not assist the police in
"testing" whether the tipster had truthfully reported the
suspect's illegal acts. Thus, the facts of White reflect the
general truth that, regardless of whether an anonymous informant
evidently knows about an individual's crime via personal
affiliation or firsthand observation, the police usually cannot
corroborate the informant's allegations of criminal conduct until
they stop the suspect, and predictive information rarely resolves
that difficulty.
In addition, a predictive information requirement would
do little to eliminate the concern that a tipster will
maliciously send false information to the police. In that
regard, only people with unique knowledge of a suspect's affairs,
such as a close friend, relative, accomplice or insider in the
suspect's criminal scheme, can provide the police with predictive
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information, and consequently a predictive information
requirement would force the police to rely exclusively on such
insiders. Yet, contrary to defendants' apparent supposition,
insider tipsters are no less likely than members of the general
public to concoct baseless accusations of criminality as a way to
harass a suspect. Indeed, one can conceive of many examples of a
tipster who is familiar with a suspect's plans and might forward
them to the police, along with a fabricated report of criminal
activity, to settle a score.
Defendants' proposal to categorically forbid the police
to conduct an investigatory stop predicated upon a tip that lacks
predictive information would also place an excessive restraint on
law enforcement. Because members of "[t]he general public" who
witness a crime "ha[ve] no way of knowing" what the perpetrator
will do next (see White, 496 U.S. at 332), they cannot supply any
predictive information to the police, and therefore a predictive
information requirement would prevent the police from seizing a
suspect solely in reliance on a tip received from an ordinary
citizen who wishes to report a crime while remaining anonymous.
Given that many crimes are reported to the police exclusively in
that way, defendants' rule would unacceptably curtail the
punishment and prevention of numerous serious offenses that are
credibly reported by regular citizens. Like the Court (see
memorandum opinion at 3), I cannot endorse this approach that
senselessly endangers the public and erodes enforcement of the
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law without any compelling justification. I agree with my
dissenting colleagues that the state constitution must provide
robust protections for the rights of defendants, but the strong
safeguards of article I, section 12 of the state constitution do
not extend so far as to completely overthrow the sensitive
balance between individual liberty and public order contemplated
by the constitution.
In light of the considerations outlined above, I would
conclude that the Aguilar-Spinelli test should govern the
determination of whether an anonymous tip is sufficiently
reliable to authorize the physical detention of a person by the
police.
Of course, a court's finding that an anonymous tip is
reliable under the Aguilar-Spinelli test does not end the inquiry
into the lawfulness of a stop or arrest based on that tip. After
all, "[e]ven a reliable tip will justify an investigative stop
only if it creates reasonable suspicion that criminal activity
may be afoot” (Navarette, 134 S. Ct. at 1690 [internal quotation
marks and citation omitted]). Thus, as a matter of law and
logic, an officer receiving an anonymous tip cannot stop the
suspect unless the tipster's description of the suspect's
criminal conduct includes such details as would create reasonable
suspicion in an officer who had seen the same details or learned
such facts from a fellow officer (see generally People v
Hendricks, 25 NY2d 129, 136 [1969]). Likewise, where the
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- 34 - No. 198, 199, 210
tipster's statements about the actual crime feature the sort of
details that would engender probable cause when gleaned by an
officer via personal observation or another reliable source, the
officer receiving the tip may lawfully arrest the suspect.
Moreover, it is well settled that, even if a tip does not meet
the Aguilar-Spinelli standard or does not feature adequate
details to confer reasonable suspicion upon the officer who hears
it, the officer's personal observation of the suspect engaged in
suspicious activity may, in combination with the tip, give rise
to reasonable suspicion or probable cause (see Elwell, 50 NY2d at
241 [concluding that, where an informant "d(oes) not indicate the
basis of his knowledge," "the rule under our Constitution should
be that a warrantless search or arrest will be sustained only
when the police observe conduct suggestive of, or directly
involving, the criminal activity"]).
III
Having laid out relevant state constitutional
guidelines, I now address the application of those rules to the
facts of the cases before us.
A
In Argyris and DiSalvo, I conclude that the police
lawfully stopped defendants' car based on an anonymous tip that
was reliable under the Aguilar-Spinelli test and sufficiently
detailed in its description of their criminal conduct to create
reasonable suspicion. On the reliability front, the 911 caller
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- 35 - No. 198, 199, 210
who accused defendants Argyris and DiSalvo of having a gun in
their car plainly supplied the police with information that
satisfied the veracity prong of the Aguilar-Spinelli test. Since
the "veracity prong of the Aguilar/Spinelli test may, in a proper
case, be established through corroboration where the police have
verified only noncriminal details of activity referred to in the
informant's statement" (DiFalco, 80 NY2d at 699), the 911
caller's statements about numerous aspects of the suspects'
appearance, vehicles and non-criminal activity, all of which were
corroborated by the officers' observations of the same, fulfilled
the veracity requirement.2
Turning to the basis-of-knowledge prong, that prong can
be established, as it was here, by an anonymous informant's
statement that he or she has just personally witnessed an
2
Although the caller's demeanor, as reflected in the call,
adds to his credibility, the mere fact that he called 911
contributes little, if anything, to the credibility
determination. In that regard, I reject the Supreme Court's
suggestion in Navarette that most people avoid giving false
reports to a 911 operator because they know that the 911
emergency system can record their voices, telephone numbers and,
maybe, locations (see Navarette, 134 S. Ct. at 1689-1690). Rather,
I agree with the Navarette dissenters' conclusion that "[t]here
is no reason to believe that your average anonymous 911 tipster
is aware that 911 callers are readily identifiable" in such a
precise manner (see id. at 1694 [Scalia, J., dissenting]). At
most, a 911 caller might have a vague inkling that, on the off
chance the operator can deduce the caller's identity from the
contents of the tip or somehow later learn the caller's identity
from another source, the caller might face significant negative
repercussions for lying in a 911 call. That awareness provides
only the slightest additional indicium of the caller's
credibility.
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- 36 - No. 198, 199, 210
unconcealed crime. Given that the report is allegedly
contemporaneous, the police can verify some aspect of the
informant's reliability by confirming that the individual accused
of criminality remains in the area reported by the tipster
shortly after the tip has been received. 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.
For those reasons, contrary to the contention of my
dissenting colleagues (see opinion of Rivera, J., dissenting, at
15-18, 19-20), the tipster's roughly contemporaneous assertion of
an unconcealed criminal act may satisfy the basis-of-knowledge
prong of the Aguilar-Spinelli test in this context (see Spinelli,
393 U.S. at 425 [White, J., concurring] ["[W]hat is necessary under
Aguilar is one of two things: the informant must declare either
(1) that he has himself seen or perceived the fact or facts
- 36 -
- 37 - No. 198, 199, 210
asserted; or (2) that his information is hearsay, but there is
good reason for believing it"]; Brown v United States, 365 F2d
976, 979 [DC Cir 1966] [where police received a report of a
robbery of a certain establishment from an anonymous victim, who
allegedly personally witnessed the robbery, the basis-of-
knowledge prong was satisfied]; People v Torres, 155 AD2d 231,
232 [1st Dept 1989] ["As to the second prong of the
Aguilar-Spinelli test, the informant's basis of knowledge, that
was easily established in that the informant stated that he was
basing his report on his own personal knowledge, gained through
direct observations"]; Commonwealth v Amral, 407 Mass 511, 514
[Mass 1990] ["The informant's observation of the contraband in
the place to be searched satisfies the basis of knowledge test"];
cf. United States ex rel. Kislin v New Jersey, 429 F2d 950, 953-
954 [3d Cir 1970] [indicating that affidavit stating an
unidentified informant, who was not identified as a confidential
informant with prior dealings with the police, had "personal
knowledge" that defendants had been engaged in specified illegal
gambling activities satisfied the basis-of-knowledge prong but
not the reliability prong]).
Since the 911 caller here stated that he had acquired
eyewitness knowledge of defendants' illegal weapon possession at
around the time of the call, his report met the basis-of-
knowledge prong. Indeed, the caller's report was clearly
contemporaneous, as he said that he was coming out of a building
- 37 -
- 38 - No. 198, 199, 210
at his current location when he saw one of the suspects put a gun
in the Mustang, and he added that the suspect "just went" down to
28th Street.3 Because the caller's tip satisfied both prongs of
the Aguilar-Spinelli test, the police were entitled to effect a
seizure in reliance on it, assuming that the tip contained enough
information about the crime to create reasonable suspicion.
In that regard, as previously discussed, a tip that is
reliable under the Aguilar-Spinelli rule nonetheless cannot
authorize a seizure unless it also features a sufficient
description of the crime to give rise to reasonable suspicion, in
the case of a Terry stop, or probable cause, in the case of an
arrest. Here, in addition to being reliable, the tip contained
enough information about the crime to create reasonable
suspicion. Although a more fleshed-out report of criminal
activity would have been preferable, the tipster's basic
statements were sufficient in light of the nature of the crime
alleged. In that respect, it should be noted that the crime at
issue, illegal gun possession, naturally tends to be described in
sparse fashion because it does not involve many detailed
movements, and one can accurately sum up someone's illegal gun
possession by saying the person is holding a gun in a public
3
Defendants do not include the words "just went" in their
transcription of the call in their brief, but those words are
discernable on the audio recording of the call admitted into
evidence at the hearing. In any event, the context and contents
of the call as a whole indicated that the caller was making a
roughly contemporaneous report.
- 38 -
- 39 - No. 198, 199, 210
place. Even so, the caller here provided more than the typical
simplistic statement that someone "has" or "is holding" a gun.
The caller explained that: (1) one of the large white males
possessed a gun; (2) the gun was a "big gun"; and (3) the gun was
specifically placed in the back of the car. While not
overwhelmingly detailed, these allegations sufficed to supply the
police with reasonable suspicion that defendants and the other
occupants of the car were involved in unlawful gun possession
outside their homes or places of business (see Penal Law §§
265.01 [1]; 265.03 [1]; 265.03 [3]). Therefore, on this record,
the courts below did not err in finding that the police lawfully
stopped the car based on reasonable suspicion of illegal weapon
possession, in compliance with the state constitution.
When the police surrounded the car with officers, drew
their weapons and ordered defendants out of the car, they acted
reasonable and lawfully out of a justifiable concern for their
safety (see People v Brnja, 50 NY2d 366, 372 [1980]; see also
Terry, 392 U.S. at 27; United States v Jackson, 652 F2d 244, 249
[2d Cir 1981], cert denied 454 U.S. 1057 [1981]; see generally
People v Coutin, 78 NY2d 930 [1991]). Once defendant DiSalvo
emerged from the car with a gun visible on his waistband, Officer
Valles had probable cause to arrest him. Likewise, when
defendant Argyris exited the car wearing a bulletproof vest,
Valles had probable cause to believe that Argyris was also
involved in armed activity, as is often true of those who wear
- 39 -
- 40 - No. 198, 199, 210
bulletproof vests. Because Valles's observations further
corroborated the 911 caller's allegations that the men had guns
in their car, Valles had the right to search the passenger
compartment of the car for additional signs of the gun possession
mentioned by the caller (see Arizona v Gant, 556 U.S. 332, 335
[2009]). Upon doing so, Valles lawfully recovered ammunition in
the back seat, corroborating the caller's claim that he had seen
defendants or their companions place a gun in the back of the
car. Since the record does not support a finding that the police
violated defendants' federal or state constitutional rights, I
agree with the Court that the lower courts properly denied their
suppression motions (see memorandum opinion at 2).4
B
In People v Johnson, I conclude that the police
unlawfully stopped defendant's car based on an anonymous 911 call
that did not set forth the basis of the caller's knowledge of
defendant's alleged crime, as required under the second prong of
the Aguilar-Spinelli test. The caller did not claim to have
personally witnessed defendant illegally driving while
intoxicated, and the caller neither made any prediction of
defendant's future behavior which might have suggested that he or
she had insider knowledge of defendant's affairs nor stated that
he or she had learned of defendant's acts from another credible
4
In light of this conclusion, I do not reach the People's
alternative argument for upholding the stop based in part on the
fellow officer rule.
- 40 -
- 41 - No. 198, 199, 210
source. In the absence of any such indicia of the basis of his
knowledge, Cunningham improperly relied on the 911 call as a
basis for stopping defendant's car on suspicion of driving while
intoxicated (see Spinelli, 393 U.S. at 425 [White, J., concurring];
see also William II, 98 NY2d at 99). Moreover, the caller's
statements could not have caused Cunningham to reasonably suspect
that defendant was committing a crime. The caller made a
conclusory and equivocal assertion that defendant was "sick or
intoxicated," and he or she did not describe any particular
action on defendant's part that could have reasonably caused the
police to accept her conclusion. Thus, the police could not have
suspected defendant of anything more than "an isolated episode of
past recklessness" (Navarette, 134 S. Ct. at 1690).5
5
The People have submitted to us an affidavit from the 911
caller, which she completed sometime after the call and in
preparation for trial. In the affidavit, the caller revealed her
identity and described the circumstances that prompted her to
call 911. However, the People failed to present this evidence to
Town Court at the suppression hearing, and we refuse to consider
it. As we have repeatedly made clear, on a direct appeal, the
parties in a criminal action are bound by the contents of the
record in the court of first instance, and we generally cannot
consider matters which are outside the record developed below
(see e.g. People v McLean, 15 NY3d 117, 121-122 [2010]; see
generally Court of Appeals Rule of Practice 500.14; cf. People v
Alomar, 93 NY2d 239, 247-248 [1999 [discussing the process by
which a party may move to expand the appellate record and hold a
reconstruction hearing]). I would strongly admonish litigants in
this Court that, if they do not request permission for
reconstruction of the record, they are not to seek an unfair
advantage over their adversaries by submitting to us materials
that have not been tested in the crucible of adversarial
proceedings in the court of first instance.
- 41 -
- 42 - No. 198, 199, 210
In addition, while Deputy Cunningham saw defendant
commit a traffic violation, he lacked authority to pull
defendant's car over on this basis because he was outside his
area of geographical jurisdiction and, thus, could stop a vehicle
only on reasonable suspicion of conduct rising to the level of a
crime. The violation did not confirm the reliability of the 911
call or provide Cunningham with reasonable suspicion of driving
while intoxicated because, in context, defendant's behavior
appeared to be, at most, a brief sign of negligent driving
consistent with a minor traffic infraction. When defendant made
an illegal wide turn onto the street to his right, he entered the
lane meant for oncoming traffic for a mere moment, quickly
correcting himself in a way that belied suspicion of intoxicated
driving.6 Furthermore, defendant's behavior prior to the stop
also gave the deputy no cause to question his sobriety. When
Cunningham first saw defendant, he was properly stopped at a stop
sign, and defendant then evidently made a lawful and steady turn
onto Route 21. Thus, the entirety of the record does not support
the lower courts' finding that Cunningham reasonably suspected
defendant of driving while intoxicated, and the courts below
erred in concluding that Cunningham lawfully stopped defendant's
6
I do not mean to suggest that a driver's commission of a
traffic infraction cannot contribute to an officer's suspicion of
intoxicated driving. But, here, defendant's specific conduct in
committing the infraction could not have supplied him with enough
additional suspicion to meet the legal threshold for reasonable
suspicion.
- 42 -
- 43 - No. 198, 199, 210
car and questioned him. And, because Deputy Drake's actions were
precipitated by the unlawful stop, the breath test results
obtained by Drake should have been suppressed.7
IV
In People v Argyris and People v DiSalvo, I find that
the lower courts did not err in denying defendants' suppression
motion. In People v Johnson, I believe the lower courts erred in
failing to grant defendant's suppression motion. Accordingly, in
People v Argyris and People v DiSalvo, I vote to affirm the
respective orders of the Appellate Division. In People v
Johnson, I vote to reverse County Court's order, grant the
suppression motion and dismiss the accusatory instrument.
7
On appeal, the People do not argue that Cunningham could
have stopped defendant based exclusively on defendant's
commission of the traffic infraction, notwithstanding that CPL
140.10 (2) (a) forbade Cunningham to arrest defendant for such a
petty offense outside his territorial jurisdiction, or that the
stop, even if it violated a jurisdictional statute, does not
require suppression of the evidence (see Virginia v Moore, 553 U.S.
164 [2008]). In addition, the parties have not discussed the
procedural aspects of such a potential claim, including any
preservation issues and the possibility of a LaFontaine issue
(see People v LaFontaine, 92 NY2d 470 [1998]) arising from County
Court's express rejection of the notion that the traffic
violation, without more, gave the deputy legal authority to stop
the car. Given that the People have not asked us to uphold the
stop exclusively on authority of the traffic violation and there
may be procedural obstacles to doing so, I express no opinion on
any of the aforementioned matters, and the Court likewise does
not address those issues (see memorandum opinion at 3).
- 43 -
People of the State of New York v Costandino Argyris
People of the State of New York v John DiSalvo
People of the State of New York v Eric R. Johnson
Nos. 198, 199, 210
READ, J. (dissenting in Argyris and DiSalvo, concurring in result
in Johnson):
We have held that an anonymous tip supplies reasonable
suspicion only if it "contains predictive information -- such as
information suggestive of criminal behavior -- so that the police
can test the reliability of the tip" (People v Moore, 6 NY3d 496,
499 [2006]; see generally Rivera dissenting op at 14-18
[discussing Moore]). In light of the United States Supreme
Court's recent decision in Navarette v California (134 S. Ct. 1683
[2014]), the People urge us to dispense with the requirement for
predictive information and adopt a totality-of-the-circumstances
or some other more expansive test to justify a forcible stop
based on an anonymous tip. These appeals therefore pose the
question whether the police can have reasonable suspicion to stop
an individual based solely on an anonymous tip that does not
provide predictive information. I would adhere to our Moore
precedent and answer "No."
Where to draw the line separating permissible from
forbidden police conduct inevitably requires courts to balance
the interests of individual privacy and liberty on the one hand
and public safety and security on the other. This is usually not
- 1 -
- 2 - Nos. 198, 199, 210
an easy exercise with obvious answers. That is certainly the
case here, where Judge Smith's and Judge Abdus-Salaam's
concurrences and Judge Rivera's dissent all make excellent
arguments in support of the different standards that they
espouse. And Navarette itself was a vigorously disputed 5-4
decision. I recognize, of course, that we might have decided
Moore differently if, at the time, federal constitutional law had
allowed us to do that. Still, the Moore rule is clear,
reasonable and well-established. I therefore see no reason to
depart from it.
- 2 -
People of the State of New York v Costandino Argyris
No. 198
People of the State of New York v John DiSalvo
No. 199
People of the State of New York v Eric R. Johnson
No. 210
RIVERA, J.(dissenting in Argyris and DiSalvo, concurring in
Johnson):
In these cases we must decide whether police have
reasonable suspicion to justify a forcible stop based solely on
an anonymous informant's uncorroborated "tip" that lacks any
information by which to test the reliability of the informant or
the information supplied. Information from informants, in
particular anonymous informants who intentionally keep their
identity secret and with whom law enforcement personnel have no
known prior experience, is inherently suspect. The value of an
informant's tip has always depended on the credibility of the
informant and the basis of the tip information. Where, as here,
an anonymous informant makes unsubstantiated assertions about
illegal activity, providing only generally observable descriptive
information about the individual subject of the tip, but lacking
predictive information of the subject's criminal conduct, the tip
alone cannot provide reasonable suspicion for police to effect a
- 1 -
- 2 - No. 198
forcible stop.
Anonymous tips, nonetheless, may advance law
enforcement purposes by providing information leading to an
independent police investigation. In cases where an anonymous
tip is confirmed by police work and personal observation, the
tip, as corroborated, may supply reasonable suspicion, which is
"the quantum of knowledge sufficient to induce an ordinarily
prudent and cautious [person] under the circumstances to believe
criminal activity is at hand" (People v Cantor, 36 NY2d 106,
112-13 [1975]).
In People v Moore, we held that in order to justify a
forcible stop, an anonymous tip must "contain[] predictive
information -- such as information of criminal behavior -- so
that the police can test the reliability of the tip" (6 NY3d 496,
499 [2006]). Four members of the Court now reject Moore's
precedential standing. In turn, a bare majority, unable to
choose between a totality of the circumstances analysis and a
diluted version of the Aguilar-Spinelli test, concludes in a
memorandum opinion that under either standard the tip in Argyris
and DiSalvo supports a finding of reasonable suspicion, but the
tip in Johnson is unreliable. In separate concurring opinions,
two members of the majority provide rationales in support of
their legal standard of choice.
It appears that my colleagues accept as a legal precept
the sufficiency of an informant's untested and unsubstantiated
- 2 -
- 3 - No. 198
allegation of personal knowledge of criminal activity as a basis
for a tip's reliability. By doing so, my colleagues bolster the
constitutional significance of an uncorroborated anonymous tip
that provides nothing more than a self referential statement that
the informant saw some individual commit a crime. Such an
approach places every member of our society at risk of police
intrusions based on the flimsiest of bases, and is contrary to
our prior holding in Moore. I dissent.
I.
The appeals before us involve information from
anonymous tipsters, persons not known to law enforcement and who
seek to conceal their identity. Anonymous tipsters differ from
known police informants, whose identities are not secret, and
with whom police may have prior experience as reliable sources of
information about criminal activity. In either case, informants,
unlike police officers, "are not regarded as presumptively
reliable or honest" (Illinois v Gates, 462 U.S. 213, 277 [1983]
[Brennan, J., dissenting]). 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 (see e.g. People v Rainey, 228 AD2d 285, 287 [1st Dept
1996] ["The lack of accountability for false reports in such
instances renders anonymous tips the weakest sort of
information"] [citation omitted]). In contrast, a known
- 3 -
- 4 - No. 198
informant's "reputation can be assessed and [the informant] can
be held responsible if [the] allegations turn out to be
fabricated" (Florida v J.L., 529 U.S. 266, 270 [2000], citing Adams
v Williams, 407 U.S. 143, 146-47 [1972]).
In order to provide a basis for probable cause to
arrest, or reasonable suspicion to stop and detain the subject of
a tip, courts have applied tests by which to measure the tip's
reliability. The necessary indicium of reliability demanded in
these cases focus on the informant's credibility and the basis of
the tip information.
The Aguilar-Spinelli test, drawn from the United States
Supreme Court's decisions in Aguilar v State of Tex. (378 U.S. 108
[1964]) and Spinelli v United States (393 U.S. 410 [1969]), as
applied to probable cause determinations based on information
from known informants, requires that the informant is reliable
and that there is a basis for the knowledge of the informant's
tip (Spinelli, 393 U.S. at 413, 416). To avoid unreasonable police
intrusions, the informant's basis of knowledge must be supported
by details substantial enough to demonstrate that the informant
is not merely relying on rumor (id.).
In both Aguilar and Spinelli, the court found the
informants' tips constitutionally insufficient. In Aguilar, the
affidavit stated only that the police were informed by an unnamed
"credible person" that defendant's home contained illegal drugs
(378 US at 109). In Spinelli, the affidavit stated more,
- 4 -
- 5 - No. 198
including that defendant was observed by investigators traveling
repeatedly to a particular apartment that contained two telephone
lines, that defendant was known to the affiant and other law
enforcement agents as a bookmaker, and that an unidentified
informant had stated that defendant was using the two telephones
in a bookmaking operation (393 US at 413-4). Nevertheless, each
failed to satisfy the threshold requirements.
In Gates, the Supreme Court abandoned the Aguilar-
Spinelli test, demoting its two requirements to mere
considerations in a broad "totality of circumstances" analysis
(462 US at 238). There, the court considered the reliability of
an anonymous letter sent to police by mail. The letter contained
specific information detailing the "future actions of third
parties ordinarily not easily obtained" (id. at 245). The court
found that the anonymous letter alone was insufficient under
Aguilar-Spinelli. However, police "corroboration of major
portions of the letter's predictions" provided "fair probability
that the writer of the anonymous letter had obtained his entire
story either from [defendants] or someone they trusted,"
therefore making it apparent that the judge had a substantial
basis for concluding that probable cause to search [defendants']
home and car existed" (id. at 246)
The court applied the totality of circumstances
analysis in Alabama v White, where it held that in order for an
anonymous tip to provide reasonable suspicion to justify a
- 5 -
- 6 - No. 198
vehicle stop, the tip needed some "indicia of reliability" (496
U.S. 325, 327 [1990]). There, police received an anonymous call
indicating:
"[the defendant] would be leaving 235–C
Lynwood Terrace Apartments at a particular
time in a brown Plymouth station wagon with
the right taillight lens broken, that she
would be going to Dobey's Motel, and that she
would be in possession of about an ounce of
cocaine inside a brown attaché case"
(id.). Acting on the tip, police proceeded to the Lynwood
Terrace Apartments and observed a brown Plymouth station wagon
with a broken tail light in front of building 235 and observed
defendant enter that vehicle and proceed to drive towards the
Dobey Motel. Prior to defendant's arrival at the hotel, police
pulled her over and informed her of the accusation that she was
carrying drugs. Defendant consented to the search of her vehicle
and cocaine was discovered in a locked, brown attaché case (id.).
Calling it a "close case," the court reasoned that the predictive
information of defendant's actions provided by the informant,
coupled with the police surveillance and corroboration of the
events predicted, supplied the necessary reasonable suspicion to
justify defendant's stop (id. at 331). The court concluded there
was no basis upon which the police could determine the
reliability of the tipster or the information without independent
investigation, meaning following the car and corroborating by
police observations the tipster's description of future criminal
conduct. With such corroboration, the court found the police
- 6 -
- 7 - No. 198
possessed the requisite reasonable suspicion to justify the
automobile stop (id. at 332).
In Adams v Williams, the informant was known to the
police officer when he approached the officer and advised him
"that an individual seated in a nearby vehicle was carrying
narcotics and had a gun at his waist" (407 US at 143). The court
noted that the information provided was immediately verifiable
and, if false, subjected the informant to immediate arrest thus
making this "a stronger case than obtains in the case of an
anonymous telephone tip" (id. at 146). The court stressed,
however, that "[o]ne simple rule will not cover every situation"
and "[s]ome tips, completely lacking in indicia of reliability,
would either warrant no police response or require further
investigation before a forcible stop of a suspect would be
authorized" (id. at 147).
In Florida v J.L. (529 U.S. 266 [2000]), the Supreme
Court clarified that to justify a forcible stop, reasonable
suspicion based on an anonymous tip required predictive
information of future criminal behavior. There, police officers
stopped and frisked the defendant after receiving an anonymous
tip that a young Black male was standing at a particular bus
stop, wearing a plaid shirt and carrying a gun. Other than the
fact that the defendant matched the general description provided
by the informant, the officers had no reason to suspect him or
his companions of illegal activity. Finding the informant's
- 7 -
- 8 - No. 198
descriptive information of defendant insufficient to satisfy the
constitutional requirement for a stop and frisk, the court stated
that an anonymous tipster's reliability would be demonstrated
only if the suspect subsequently engaged in actions suggestive of
concealed criminal activity, which the anonymous tip predicted in
detail (id. at 271-272). That is "reasonable suspicion . . .
requires that a tip be reliable in its assertion of illegality,
not just in its tendency to identify a determinate person" (id.
at 272).
The Supreme Court revisited the issue of the
reliability of anonymous informant's in the context of a drunk
driving case. In Navarette v California (134 S. Ct. 1683 [2014]),
a divided court applied the totality of the circumstances test,
and concluded that while police failed to observe any criminal
conduct, they had reasonable suspicion to stop the defendants
based on a 911 caller's description of defendants' pickup truck
which the caller alleged had minutes before run her off the
road.1 According to the majority, the call had sufficient
indicia of reliability because the informant had been an
eyewitness to the event, whereas in J.L., "the tip provided no
basis for concluding that the tipster had actually seen the gun"
1
It appears that the informant did in fact give her name,
but the prosecution failed to produce either the informant or the
dispatcher who received the call at the hearing and, thus, the
court was inclined to treat the caller as anonymous (see
Navarette, 134 S. Ct. at 1687, n 1).
- 8 -
- 9 - No. 198
(id. at 1689). Further, the court credited the informant with
having used the 911 system, which permits tracking of calls, and
which allows for prosecution of those who make false reports.
Last, the court noted that the caller reported the type of
dangerous conduct that resembles drunk driving, suggesting the
informant's conclusion was correct.
Our Court has also been suspicious of informants,
especially anonymous tipsters, and thus demands that the
informant's reliability be established in order to justify
probable cause or reasonable suspicion. Early on we
"characterized the use of anonymous information to justify
intrusive police action as 'highly dangerous'" (People v De Bour,
40 NY2d 210, 225 [1976], citing People v Taggart, 20 NY2d 335,
343 [1967]). Fearing the potential risks associated with false
anonymous tips, we observed that:
"A citizen walking our streets should not,
without more, be exposed to physical assault
by a police officer on the basis of an
unsubstantiated report of the mere possession
of firearms volunteered by a stranger. To
condone such conduct would be to expose
innocent persons to harassment by pranksters
and irresponsible meddlers"
(People v Green, 35 NY2d 193, 196 [1974]).
In People v La Pene, III (40 NY2d 210 [1976]), the
companion case to De Bour, we concluded that an anonymous
telephone tip, in the proper case, could provide police with
reasonable suspicion to stop and frisk the subject of the tip.
However, we held that the tip in La Pene, alleging only that
- 9 -
- 10 - No. 198
there was a Black male inside a bar, wearing in a red shirt with
a gun (id. at 221), was vague and thus insufficient. We noted
that it was "significant though not determinative . . . that [the
tip] was garnered from an anonymous source" (id. at 224).
Even where the informant had provided reliable
information in the past, we have declined to uphold a search
where the police were only able to corroborate defendant's
identification, but not any details suggestive of criminal
activity (People v Elwell, 50 NY2d 231, 234 [1980] ["personal
police observation corroborative of data received from the
informant should be regarded as sufficient only when the police
observe facts suggestive of criminal activity"][emphasis added]).
We reasoned that "[o]therwise, privacy and liberty may be invaded
by a warrantless search or arrest based solely on the quality of
the informant and not at all on the quality of the information,
i.e., its suggestiveness of criminal activity" (id. at 237).
Thus, "[b]earing in mind the balance to be struck between the
individual's constitutional right to be free of official
interference by way of search or arrest with society's interest
in preventing crime and apprehending criminals" (id. at 241), we
concluded that:
"the rule under our Constitution should be
that a warrantless search or arrest will be
sustained only when the police observe
conduct suggestive of, or directly involving,
the criminal activity about which an
informant who did not indicate the basis for
his knowledge has given information to the
police, or when the information furnished
- 10 -
- 11 - No. 198
about the criminal activity is so detailed as
to make clear that it must have been based on
personal observation of that activity"
(id. [citations omitted]).
After the Supreme Court's decision in Gates, we
rejected the totality of the circumstances test and, as a State
constitutional matter, continued to apply the Aguilar-Spinelli
test to probable cause determinations involving informants.
Thus, in People v Johnson, we stated that "the protection of the
individual rights of our citizens [were] best promoted by
applying State constitutional standards" (66 NY2d 398, 407
[1985]). Soon thereafter, in People v Griminger (71 NY2d 635
[1988]), we again adhered to Aguilar-Spinelli, observing that
requiring adherence to the test would "prevent the disturbance of
the rights of privacy and liberty upon the word of an unreliable
hearsay informant, a danger we perceive under the Gates
totality-of-the-circumstances test" (id. at 641).
Distinguishing between the two Aguilar-Spinelli
requirements, we restated in People v DiFalco (80 NY2d 693
[1993]) that the informant's basis of knowledge could be
corroborated by sufficient details "suggestive of or directly
related to criminal activities" (id. at 697, citing Elwell, 50
NY2d at 236). We then held that the informant's reliability may
be established by corroboration based on "independently verified
details, although not of themselves criminal in nature" (id. at
699). We stressed, however, that those details "may not be
- 11 -
- 12 - No. 198
merely peripheral to the reported criminal scheme; they must fit
within the informant's story of the contemplated crime as
activities which are significant and essential to carrying it
out" (id.). Thus, we confirmed that information suggestive of
criminal activity was central to the Aguilar-Spinelli
requirements, finding "[t]he separate basis of knowledge and
veracity requirements of Aguilar-Spinelli are analytically
independent and each must be satisfied" (id. at 697; see also
Johnson, 66 NY2d at 403-03; United States v Harris, 403 U.S. 573,
592 [Harlan, J., dissenting]).
In three cases particularly relevant to the instant
appeals, we imposed explicitly the predictive information
requirement of J.L. to street encounters and vehicle stops. In
People v William II (98 NY2d 93 [2002]), the police received an
anonymous call indicating a man named "Will" had just been
involved in a drive-by shooting. The anonymous informant
provided a description of "Will," as well as his location, and
cautioned that he was armed. When police arrived they found
defendant in a group, with another man resembling the description
given by the caller; however from the manner in which defendant
was dressed, the police immediately knew he was not carrying a
concealed weapon. Nevertheless, the police frisked defendant and
the other man. We held that "[t]he tip not only lacked
predictive information that would permit the police to test the
caller's knowledge, but was also rendered suspect when directly
- 12 -
- 13 - No. 198
contradicted by the police officer's observation[s] . . ." (id.
at 99). Accordingly, we suppressed marijuana recovered from the
defendant.
In People v Rodriguez, the companion case to William
II, an anonymous caller described a light-skinned Hispanic male,
in his twenties, with black hair, wearing a black-and-white
checkered shirt and jeans and allegedly carrying a gun. Two
hours later the police saw the defendant, who fit the
description, entering the back of a livery cab. Police stopped
the cab and as they approached, defendant allegedly dropped a
handgun out of the window. We held that the anonymous tip lacked
predictive information, stating "the only basis for reasonable
suspicion advanced before the suppression court for stopping the
vehicle in which defendant was a passenger was that he matched
the physical description provided by an anonymous tipster.
Without more, the tip could not provide reasonable suspicion to
stop the car" (id.).
In People v Moore (6 NY3d 496 [2006]), an anonymous
caller informed police that there was a dispute involving a Black
male with a gun, approximately 18 years old and wearing a gray
jacket and red hat. When the police arrived they saw defendant,
who matched the description. As they approached, defendant
started to walk away. The police caught up with defendant and,
with guns drawn, subjected him to a frisk. We held that "[a]n
anonymous tip cannot provide reasonable suspicion to justify a
- 13 -
- 14 - No. 198
seizure, except where that tip contains predictive information --
such as information suggestive of criminal behavior -- so that
the police can test the reliability of the tip" (id. at 499,
citing J.L., 529 U.S. 266).
In assessing the propriety of a forcible stop under our
De Bour framework, we discussed the liberty interest at risk from
investigatory stops based on anonymous tips. We observed
"the very right to be let alone — the right
of citizens not to be stopped at gunpoint by
police, based on anonymous tips—is the
distinguishing factor between the level of
intrusion permissible under the common-law
right of inquiry and the right to stop
forcibly . . .
"Under our settled De Bour jurisprudence, to
elevate the right of inquiry to the right to
forcibly stop and detain, the police must
obtain additional information or make
additional observations of suspicious conduct
sufficient to provide reasonable suspicion of
criminal behavior . . ."
(Moore, 6 NY3d at 500-01 [internal citations omitted]).
II.
Central to these cases are the requirements of
reliability of the anonymous informant and the credible basis for
the tipster's information. Testing the reliability of the
informant addresses whether the informant is truthful, and not
motivated to fabricate. Confirming the tipster's information
reflects a principal concern that the information about criminal
activity be based on facts and data which make it likely to be
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accurate.
Whether under the Aguilar-Spinelli test for probable
cause, or the less demanding reasonable suspicion standard, the
courts seek to ensure a tip is reliable in order to avoid police
intrusions based on suspicion and rumor, or fabricated report of
illegality. Unlike a known informant, an anonymous informant has
no history with law enforcement, and no track record of having
provided reliable information in the past. Deprived of the
informant's identity, the police have no basis upon which to
conclude that the tipster may be trusted. As the courts have
recognized, such tips carry the real possibility that individuals
will be subjected to police intrusions on the basis of false
information by someone who may escape prosecution. Thus, there
is every reason to carefully scrutinize the anonymous informant
and the tipster's information, and to require corroboration that
provides a basis for an officer's supported belief of criminal
conduct, taking into account that the source of the information
is unknown and untested. Whether the inquiry is to confirm the
existence of probable cause for a search or an arrest, or the
reasonable suspicion to stop and detain, the tip must have an
indicium of reliability.
Reliability may be provided by any number of factors
external to the informant (see White, 496 U.S. at 325 [police
observation of predictive details evincing the criminal behavior
the tip predicted]; People v Cobb, 208 AD2d 453 [1st Dept 1994]
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[police observation of illegality]). Reliability may also be
provided by the contents of the tip (see e.g. White, 496 U.S. at
328 [substance of the anonymous tip contained sufficient indicia
of reliability to justify reasonable suspicion to stop
defendant]). However, as relevant to these appeals, we made
clear in Moore that in order to provide reasonable suspicion to
justify a forcible stop, an anonymous tip must contain predictive
information of criminality (6 NY3d at 499). It is just that
simple and just that important.
The requirement that an anonymous tip must contain
predictive information ensures that police act based on
information that provides a basis for believing the informant is
truthful and the tip has a basis in facts and circumstances that
reveal criminal activity. This requirement properly balances
fundamental constitutional rights of liberty and privacy against
concerns about public safety and efficient law enforcement. A
predictive information requirement benefits the individual and
society by protecting cherished freedoms against what Justice
Douglas described as "the powerful hydraulic pressures throughout
our history that bear heavily on the [courts] to water down
constitutional guarantees" (Terry v Ohio, 392 U.S. 1, 39 [1968]),
while also permitting law enforcement to deploy investigative
techniques based on experience with informants, with due regard
to the practical realities and demands of policing, especially in
matters involving fast-paced street encounters.
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In an effort to avoid the underlying rationale of our
prior approach, the majority claims in Argyris and Disalvo that
the tip's lack of predictive information is not fatal(memorandum
op. at 2). My concurring colleague, Judge Abdus-Salaam, goes so
far as to describe as dicta Moore's legal rule statement that an
anonymous tip must contain predictive information before the tip
may serve as reasonable suspicion to justify a De Bour level
three seizure (see opinion of Abdus-Salaam, J., at 19). Indeed,
she expounds on this conclusion, arguing that the actual grounds
for our decision in Moore were "numerous other aspects of the
tip" that showed it was not credible (id.). This is a
revisionist interpretation of Moore and one which distorts this
Court's central unambiguous holding that "the tip did not provide
any predictive information . . ." (Moore, 6 NY3d at 499). In
fact, there are no so-called "numerous" references to credibility
problems to be found anywhere in the opinion, only this Court's
conclusion that in addition to lacking predictive information,
the tip failed to provide accurate descriptive information by
failing to correctly portray the unfolding events at the scene.
Judge Abdus-Salaam advocates for the adoption of the
two-pronged Aguilar-Spinelli test. If she, in fact, adhered to
the actual Aguilar-Spinelli test I might join her opinion, given
that before today the Aguilar-Spinelli test imposed a higher
standard than what has usually been necessary to establish
reasonable suspicion in support of an investigatory stop.
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However, the long-standing Aguilar-Spinelli test is not
what my concurring colleague promotes. Instead, she embraces a
modified version of this test, resting the reasonable suspicion
determination "on the quality of the tip's description of the
crime itself," without the need for predictive information of
criminal activity. This is merely "Aguilar-Spinelli lite,"
excised of the core protective benefits that underlie the
original test, and diluting its most salient requirements.
As described, it allows police, on a simple allegation
that someone saw somebody do something, to stop anyone,
regardless of age or physical condition; at any time, day or
night; at any place, whether walking on a public street, sitting
in a car, or entering one's home or place of employment. No
quotidian moment escapes potential police intrusion. The most
basic and innocuous of chores and activities, such as commuting
to work or school, purchasing food at the market, waiting at the
laundry mat, standing in line at the post office, visiting the
library, browsing through records and books, or circling the
neighborhood in a car looking for parking for what seems like an
interminable length of time, may serve as the basis for an
anonymous informant to claim criminal activity. So long as the
informant claims to have been an eyewitness to a criminal act,
the tip need not provide even a modicum of reliability as to the
alleged illegality, even though the tip is communicated outside
the physical presence of law enforcement personnel, asserted by
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an unknown individual who is unwilling or unable to provide
identifying information, such as a telephone number, and whose
veracity is unproven and unconfirmed.
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.
My concurring colleague agrees, and offers four grounds
to support her conclusion (see opinion of Abdus-Salaam, J., at
24-33). First, as the People here contend, predictive
information is but one way to establish basis of knowledge under
the Aguilar-Spinelli test. As such, an anonymous informant may
establish basis of knowledge by a statement of personal
observation of illegal conduct, as is the case in these appeals.
The appropriate response to the People's argument is
that of the dissent in Navarette to a similar claim of alleged
personal observation. Reacting to the Navarette majority's
assertion that the informant claimed to have been run off the
road and therefore had eyewitness knowledge, Justice Scalia
remarked, "So what?" (Navarette, 134 S. Ct. at 1693 [Scalia, J.,
dissenting]). For, "[t]he issue is not how [the informant]
claimed to know, but whether what [the informant] claimed to know
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was true" (id.). To that question, "[t]he claim to 'eyewitness
knowledge' . . . supports not at all its veracity" (id. [emphasis
in original]).
A simple example, comparing a tip from an informant who
claims to have personal eyewitness knowledge to alleged gun
possession, with a tip from an informant who makes no such
assertion, reveals the strained logic of the argument. A
self-referential statement of eyewitness observation of criminal
activity, summed up in the words "I saw a gun", sheds no greater
light on whether the informant is to be trusted and the tip
relied upon, than does the same statement, from the same
informant, but without the claim of having seen a weapon. In
both scenarios, the police have only the informant's word as to
what occurred, and no way to confirm it, without engaging in
independent police investigation.
Accepting self-verification based on no more than the
informant's bald unsubstantiated assertion goes against common
sense because such statement proves nothing and adds nothing to
the reliability analysis. It does, however, increase the risk of
police intrusions based on fabricated information by legitimating
police action that is based on an anonymous tip that says nothing
more than "I saw something so I said something."2
2
The anonymous informant in Argyris and DiSalvo used this
phrase when speaking to the 911 operator, apparently a reference
to public service announcements encouraging members of the
general public that "if you see something, say something" as a
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My colleague's second ground for rejecting a
requirement of predictive information is that the requirement
supposedly fails to assist police in testing the truthfulness of
the informant's account of the criminal activity prior to taking
action against the subject of the tip. Yet, the fact that an
anonymous tip may not provide police with reasonable suspicion of
criminal activity is the very reason why courts demand more than
unsubstantiated assertions from unknown persons. As has been the
case for decades, where police receive an anonymous tip the
police may determine, based on the content of the tip and police
experience and expertise with anonymous informants, whether and
how to follow up on the anonymous information. If, by
independent investigatory police work and their personal
observations, the police corroborate the readily observable,
innocuous noncriminal information provided by the informant, and
also confirm the basis for the informant's allegations of
criminal activity, such that the police "believe criminal
activity is at hand," the police may conduct an investigatory
stop. If the police fail to confirm the tip, even under the
lower threshold of reasonable suspicion, then they may not act.
The fact that the police may be unable to corroborate an
anonymous tip is a consequence of our society's choice to protect
constitutional rights.
response to suspicious items or activities (see generally If You
See Something, Say Something,
http://web.mta.info/mta/security/[accessed Nov. 13, 2014]).
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The third ground asserted is that predictive
information will not eliminate the risk that malicious tipsters
will fabricate reports of criminal activity, and may very well
increase that risk. The reason being, that those most likely to
have predictive information are those closest to the tipster's
target, and they are as likely as anyone else to make up a story.
Moreover, where the informant bears personal animosity towards
the target, the informant may be motivated to lie. This is pure
speculation and conjecture. The reality is that the tests for
constitutional sufficiency of informant tips seek to reduce the
possibility of fabrication by requiring information that is
intended to permit police and courts to weed out the genuine tips
from those motivated by a personal agenda. Police have a long
history of distinguishing the malevolent from the honest
informant. That task is made harder when the informant is
anonymous, and thus requires that police have information to
assist them in determining what is a genuine source of reliable
information.
As a fourth ground, my colleague asserts that a
predictive information requirement would place an excessive
restraint on law enforcement, imperiling public safety. Of
course, we do not want to interfere unduly with police work. The
concern as explained, however, sounds like fearmongering. Even
if members of the general public who observe a crime have no way
of knowing what the subject of the tip will do and cannot provide
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predictive information, that does not mean, as posited, that
serious crimes would go unpunished. Unlike my colleague I place
my faith in a law enforcement system that relies on the work of
police officials, trained and experienced in investigatory
techniques, familiar with the street hustles and the fake claims
of imminent danger, rather than in unsubstantiated tips from
anonymous persons.
Despite claims that the only way to avoid endangering
the public and prevent the erosion of law enforcement is to cede
our hard-fought rights to liberty and privacy, the truth is just
the opposite. Police intrusion based on untested and
uncorroborated claims of criminal conduct does not safeguard the
public or encourage effective law enforcement. I reject the
premise that it is simply too difficult for law enforcement to do
what they are trained to do, and that it is too much to expect
that those charged with protecting us will do so by applying
their skills in accordance with constitutional and statutory
requirements.
My concurring colleague, Judge Smith, opposes the
application of the Aguilar-Spinelli test, and in its stead would
apply the totality of the circumstances test (opinion of Smith,
J., concurring, at 2, 4). However, we rejected that federal
approach in Johnson, finding our State constitutional standards
better protected individual rights (see 66 NY2d at 407). That
assessment of the totality test is still applicable today and I
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see no reason to reconsider and resuscitate a standard buried
long ago.
III.
Some states and law enforcement have argued for years
that tips about illegal guns should be treated differently, and
absolved of the usual constitutional requirements of reasonable
suspicion and probable cause (see e.g. J.L., 529 U.S. at 271). We
have never, at least until now, found support in fact or logic
for such an exception to the general rule that police intrusions
of liberty require a showing of reasonable suspicion to support
an investigatory stop, or probable cause for a search and an
arrest.
In J.L., the Supreme Court rejected such entreaties to
carve out a "firearm exception" that would permit a stop and
frisk based on a tip that would not otherwise provide a
constitutionally justifiable basis for the stop (id. at 272).
After recognizing that "firearms are dangerous, and extraordinary
dangers sometimes justify unusual precautions," Justice Ginsburg
noted that the Terry rule sought to address these concerns by
permitting a protective police search based on reasonable
suspicion rather than probable cause. She then stated
"an automatic firearm exception to our
established reliability analysis would rove
too far. Such an exception would enable any
person seeking to harass another to set in
motion an intrusive, embarrassing police
search of the targeted person simply by
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placing an anonymous call falsely reporting
the target's unlawful carriage of a gun"
(id. at 272). She also recognized the difficulty of cabining
such an exception to firearm prosecutions because, as federal
Circuits Courts of Appeals have found, it is "foreseeable for
people carrying significant amounts of illegal drugs to be
carrying guns as well" (id. at 273 [citations omitted]). She
continued:
"If police officers may properly conduct
Terry frisks on the basis of bare-boned tips
about guns, it would be reasonable to
maintain [based on the caselaw] that the
police should similarly have discretion to
frisk based on bare-boned tips about
narcotics. As we clarified when we made
indicia of reliability critical in Adams and
White, the Fourth Amendment is not so easily
satisfied"
(id., citing Richards v Wisconsin, 520 U.S. 385, 393–394 [1997]
[rejecting a per se exception to the "knock and announce" rule
for narcotics cases partly because "the reasons for creating an
exception in one category [of Fourth Amendment cases] can,
relatively easily, be applied to others," thus allowing the
exception to swallow the rule]).
My colleagues go further because they would apply the
totality of circumstances or Aguilar-Spinelli tests to all
investigatory stops, not just those involving guns. Such
approach risks the further watering down of rights in the future.
IV.
Turning to the instant appeals, in Argyris and DiSalvo,
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I would find that the anonymous tip lacked the indicia of
reliability necessary to support reasonable suspicion to forcibly
stop defendants. 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.
To the extent my colleagues accept the veracity of the
anonymous informant based on the informant's word they ignore the
primary lessons of federal and state cases that anonymous tips
are inherently suspect and cannot, on their own, serve as a basis
for police intrusions. Equally unavailing is my concurring
colleague's assertion that "[b]y claiming personal knowledge, the
tipster puts his or her own credibility on the line rather than
seeking to hide behind a secondhand hearsay source . . ."
(opinion of Abdus-Salaam, J., at 36). This completely fails to
comprehend that because the informant is anonymous, there is no
way to assess credibility unless the tip contains predictive
information that affords police the ability to corroborate the
substance of the tip. An anonymous source, immune from
prosecution for false statements, places nothing "on the line."
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Here, because the tip on its own was insufficient to
provide reasonable suspicion, the police were left to investigate
and determine whether additional information confirmed the tip.
This is what several officers did, and this was good police work
because they were able to corroborate the descriptive information
by personal observation. However, before they could corroborate
the allegation of gun possession Officer Valles stopped
defendants' car at gunpoint. As the record makes clear, the only
information known to officer Valles when he initiated the stop
was the contents of the tip: the descriptive information and the
bare assertion of the presence of a weapon. Plainly, at this
point, the police lacked reasonable suspicion to forcibly stop
defendants' vehicles. Therefore, despite the majority's
conclusion otherwise, there is no record support for the finding
below (see memorandum op. at 2). Indeed, even under a totality
of the circumstances analysis, there are too few details in the
aggregate to support a finding of reasonable suspicion (see id.;
see also opinion of Smith, J., at 4). As a consequence, the
subsequent search was unlawful and the evidence seized during the
course of the search should have been suppressed (see William
II., 98 NY2d at 100).
The anonymous tip in Johnson is also constitutionally
deficient because it too lacked predictive information about the
alleged criminal activity of driving while intoxicated, and the
police failed to observe conduct that would suggest the tip was
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reliable. Based on slightly different legal grounds I agree with
the majority that County Court should be reversed and the motion
for suppression granted. I, therefore, concur in the result.
V.
My colleagues accept a standard below any
constitutional floor this Court has ever recognized. In so doing
they reject Moore without legal justification or good reason.
They also conveniently disregard our long-standing interpretation
of our State Constitution's expansive protections (see e.g.
People v Weaver, 12 NY3d 433, 445 [2009]), and ignore the
concerns about anonymous informants expressed in our prior case
law. In my opinion, we must remain ever mindful of this Court's
statement in Elwell, regarding the power of the state to arrest,
and which applies with equal force to lesser police intrusions,
that reliance "on mere suspicion collides violently with the
basic human right of liberty. It can be tolerated only in a
society which is willing to concede to its government power which
history and experience teach are the inevitable accoutrements of
tyranny" (Elwell, 50 NY2d at 236 [citation omitted]). I
dissent.
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* * * * * * * * * * * * * * * * *
For Cases No. 198 and No. 199: Order affirmed, in a memorandum.
Judges Graffeo, Smith, Pigott and Abdus-Salaam concur, Judge
Smith in a separate concurring opinion in which Judge Pigott
concurs and Judge Abdus-Salaam in a separate concurring opinion
in which Judge Graffeo concurs. Judge Read dissents in an
opinion. Judge Rivera dissents in a separate opinion in which
Chief Judge Lippman concurs.
For Case No. 210: Order reversed, defendant's motion to suppress
granted and accusatory instrument dismissed, in a memorandum.
Judges Graffeo, Smith, Pigott and Abdus-Salaam concur, Judge
Smith in a separate concurring opinion in which Judge Pigott
concurs and Judge Abdus-Salaam in a separate concurring opinion
in which Judge Graffeo concurs. Judge Read concurs in result in
an opinion. Judge Rivera concurs in result in a separate opinion
in which Chief Judge Lippman concurs.
Decided November 25, 2014
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