United States v. Freeman, No. 12-2233 (2d Cir. Nov. 7, 2013) (Pooler, Wesley, and Droney) (as amended), available here
In this important Fourth Amendment decision — required reading for anyone dealing with a search or seizure based on an anonymous tip — the Court held that the police, acting primarily on a pair of anonymous 911 calls from the same caller, lacked reasonable suspicion to stop the defendant. Accordingly, the Court reversed the district court’s decision denying a motion to suppress and vacated the defendant’s conviction for illegally possessing a firearm. Judge Wesley dissented. [Disclosure: the Federal Defenders of New York represents Mr. Freeman.]
These were the facts: On April 27, 2011, around 1:40 a.m, the police responded to two 911 calls from the same caller. The initial call reported that a “Hispanic male, wearing a black hat and a white t-shirt had a gun, near the Chase Bank on East Gun Hill Road in the Bronx.” The second call described the suspect as a “male black” wearing a white du-rag, a black hat, and a long white t-shirt.
The caller refused to identify herself, and the 911 operator could not re-contact her despite multiple attempts. The 911 calls were recorded, and the number was identified as a cell phone number, but the caller was never identified.
When the police arrived at the scene, they encountered Freeman, who fit the most recent reported description of the suspect. The police grabbed Freeman around his waist in a “bear hug” and, after a short struggle, handcuffed him and found a gun in his waistband.
The Circuit held that the gun should have been suppressed. First, the Court ruled, the police “seized” Freeman when one of the officers grabbed him in a “bear hug.” Thus, at that moment, they needed “reasonable suspicion” to justify the seizure. The Court rejected the government’s argument that Freeman was not seized until he was handcuffed.
The Court then held that, under the Supreme Court’s decision in Florida v. J.L., 529 U.S. 266 (2000), the police lacked reasonable suspicion to justify Freeman’s seizure because the pair of anonymous 911 calls lacked any indicia of reliability. Though the caller’s cell phone number was automatically recorded by the 911 system, and the caller’s description of the gunman was more detailed than that in J.L., these factual differences did not show that the 911 calls were sufficiently reliable to establish reasonable suspicion. Since the caller was never identified, the police (and the reviewing courts) had no way: (1) to assess her credibility and reputation for honesty, or (2) to hold her accountable for false reporting.
In addition to its significant holding, this decision contains lots of useful language reaffirming important Fourth Amendment principles. For example, the Court rejected the government’s argument that reasonable suspicion existed because the stop occurred in a “high crime” area and because Freeman supposedly continued walking in an “aggressive manner” when initially approached by the plainclothes officers. The Court also noted that judicial review for “reasonable suspicion” is “not a rubber stamp,” and that district courts “must not merely defer to [a] police officer’s judgment.”