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Media Alerts - United States v. Freeman - Second Circuit
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November 7, 2013
  United States v. Freeman - Second Circuit
Headline: Second Circuit Vacates Conviction Based on Finding that Police Lacked Reasonable Suspicion for Terry Stop Based on Anonymous 911 Calls Made from Cell Phone.

Issue(s) Presented: Did the District Court err in denying a motion to suppress a firearm discovered by police when they stopped defendant based upon a tip in two anonymous 911 calls?

Brief Summary: On April 27, 2011, two anonymous 911 calls placed by the same person reported that a man of a certain description was at a certain street location in the Bronx, New York, and was carrying a gun. The operator was not able to identify or reach the caller on the cell phone number listed as the source of the call, despite attempts to call the number listed. Two New York Police Department officers responding to the calls arrived at the scene and attempted to stop the defendant, Joseph Freeman, as he was walking. The defendant continued to try to walk away, at which point the police grabbed him around the waist and tripped him to the ground, eventually handcuffing him and finding a firearm in his waistband. The defendant was subsequently tried and moved to suppress the gun on the grounds that the police did not have reasonable suspicion to stop him. The defendant The United States District Court for the Southern District of New York denied the motion and the defendant was eventually convicted of being a felon in possession of a firearm.

The defendant appealed his conviction and the Second Circuit majority reversed, vacating the conviction, and remanding the case. The Second Circuit held that the two calls placed anonymously by the same person were insufficient to provide reasonable suspicion for the stop. In a dissenting opinion, Circuit Judge Wesley argued that, because the anonymous caller's cell number was available to the operator, and in light of current technology that would presumably enable police to track the caller, the police were reasonable in concluding that the calls created reasonable suspicion supporting the stop. The dissent also urged the Supreme Court to offer guidance in this troubling and important area of jurisprudence.

To read the full opinion, please visit:

Extended Summary: On April 27, 2011, at approximately 1:40 a.m., the New York City Police Department responded to two 911 calls from the same caller that reported a Hispanic Man near a Chase Bank on East Gun Hill Road in the Bronx, New York was carrying a gun. The caller refused to identify herself during both calls, and she could not be re-contacted despite recordings of the calls and the cell phone number from which the call was place having been recorded. The caller remains unknown. In the second call, the caller gave an updated description of the suspect as a "male black" wearing a white du-rag, black hat, and long white t-shirt who was "walking towards" and then "standing at the corner of Burke [Avenue]."

Police officers who responded to the scene observed the defendant walking on Gun Hill Road, noting that he matched the most recent reported description. The officers stopped the vehicle and approached the defendant and attempted to speak with him, at which point the defendant continued to walk away. One officer grabbed his elbow, and the defendant shrugged him off continuing to walk away. The second officer then grabbed the defendant around the waist in a "bear hug" and the defendant continued to try and walk away until the officer tripped him to the ground, eventually handcuffing the defendant and removing a gun from his waistband.

The defendant was tried in the United States District Court for the Southern District of New York and moved to suppress the gun discovered on the grounds that police lacked reasonable suspicion to make the stop. The district court denied the motion, concluding that the stop was supported by reasonable suspicion. To preserve his right to appeal, the defendant waived his right to jury by trial and agreed to a bench trial on the stipulated facts. On December 13, 2011, the district court found him guilty of being a felon in possession of a firearm, at which point he brought the instant appeal challenging the stop.

The Second Circuit reversed and vacated the defendant's conviction, finding police did not have reasonable suspicion for the stop, and remanded the case to the district court. Noting that a determination of reasonable suspicion must be viewed under the totality of the circumstances, and that the suspicion must be justified at the onset, the court analyzed the stop based on two factors: (1) at what point did the police seize the defendant, and (2) whether at that point there was reasonable suspicion.

The court first determined that the defendant had been seized when the police officer grabbed him around the waist, rejecting the government's argument that the seizure occurred when the defendant was handcuffed. The court reasoned that because the defendant never attempted to flee, the court could not consider any events that occurred after the seizure as part of the reasonable suspicion analysis, such as evidence that he struggled and moved his hands towards his waist.

The court then determined that the anonymous tips were insufficient to provide the reasonable suspicion necessary for the stop. Relying on the Supreme Courts 2000 decision in Florida v. J.L., the court held that, because the caller did not provide any information that identified her, there was no way for police to determine her credibility or to hold her accountable for misreporting and, therefore, the anonymous calls were not sufficiently reliable to support the stop. The court rejected the district court's determination that the caller was not truly anonymous, but was rather an eyewitness, because her cell phone number was recorded, she called 911 twice, and because she so accurately described the defendant. Although the majority noted that Justice Kennedy's concurring opinion in J.L. suggested that, at some point, reliability may be demonstrated for anonymous tips from cell phones due to advances in technology allowing the identification of anonymous callers and the ability to hold them accountable for false tips, the record did not demonstrate a material increase in the reliability of the tip in this case.

Finally, the Second Circuit rejected any argument that the danger posed by firearms provided reasonable suspicious supporting the Terry stop. The court stated that the mere presence of the firearm did not justify the stop without an ongoing emergency situation and rejected the assertion that the stop was reasonable because it occurred late at night in a high crime area, noting that the late night activity carries less weight in "the city that never sleeps," and there were areas with more or less crime within the precinct. Finally, the court found the defendant's refusal to cooperate could not be held against him because at the time the police approached him they lacked reasonable suspicion for the stop.

In a dissenting opinion, Circuit Judge Wesley argues that the officers did have reasonable suspicion to make the stop based on the reliability of the 911 calls. Judge Wesley suggests that the call was not truly anonymous based on the factors identified previously by Justice Kennedy in J.L., namely that the call was recorded, the number was recorded, and technology would allow the police to track down the caller whether or not the cell phone was permanent or disposable. He further suggests that due to the changes in the communications industry and 911 call centers, the Supreme Court should give "further guidance in this troubling and exceptionally important area of Fourth Amendment jurisprudence."

To read the full opinion, please visit:

Panel: Circuit Judges Pooler, Wesley and Droney

Argument: 4/16/2013

Date of Issued Opinion: 11/7/2013

Docket Number: 12-2233-cr

Decided: Conviction Vacated, Suppression Decision Reversed and Remanded

Case Alert Author: David Restrepo

Counsel: Yuanchung Lee, Federal Defenders of New York, Inc., for Defendant Appellant and Rachel Maimin, Assistant United States Attorney, (Preet Bharara, United States Attorney for the Southern District of New York, Justin S. Weddle, Assistant United States Attorney, on the brief), for Appellee.

Author of Opinion: Judge Pooler for the majority; Judge Wesley dissenting

Case Alert Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 11/07/2013 04:30 PM     2nd Circuit  

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