Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

U.S. v. COLON

United States District Court, Southern District of New York


September 6, 2000

UNITED STATES OF AMERICA
V.
WILLIAM COLON DEFENDANT.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.

MEMORANDUM OPINION

The Court previously denied defendant's motion to suppress physical evidence and a custodial statement made following his arrest. It now issues this opinion, as the motion raises two significant issues.

Facts

Defendant was arrested in an after-hours club in the Bronx, as a result of an "anonymous" tip to a 911 operator. On February 6, 2000, shortly after six a.m., a woman called 911 and told the operator that she was in her car outside an after-hours club and that there was a man inside the club who had hit her in the head with a gun. She described him as a white Hispanic wearing a red baseball cap and a red leather jacket who answered to the nickname "White Boy."*fn1 When asked if she wished to leave her name and number, the caller responded as follows:

"I don't care because he already hit me one time and Officer Alejandro has my report on him. You know? And, but I just don't want him to know that I was the one that called."*fn2

Later, when asked whether she would be there when the police arrived, the caller responded that she was not going to be there because she didn't want White Boy to see her. She said he was a drug dealer and she didn't want to "get killed."*fn3 The caller repeated that White Boy had hit her in the face approximately three weeks earlier, causing her to need 15 stitches, and that the cops knew about the incident so "I don't have to give you my name. They know who I would be. You understand?"*fn4 She went on to say:

If I leave you my name, and they start saying my name over there. I don't wanna' be, you know, I don't want no problems because I have three children and I don't want to take no kind of risk."*fn5

She continued,

"You understand? It could be like they were just busting the place and he just happen to have a gun and they're busting him for that. You understand?"*fn6

The call ended moments later.

At that point, the operator made an entry in the computer system to transmit the relevant information to a New York Police Department ("NYPD") dispatcher, describing the incident as a code "10-10," which indicates a crime in progress.*fn7 The operator conveyed the physical description and location of the subject, indicated that he possessed a firearm, and included a Sprint Spectrum cell phone number that the 911 system identified as the number from which the caller placed the call.*fn8

The dispatcher then went on the air and called for a patrol car to respond to the after-hours club. The radio transmission from the dispatcher to the patrol unit indicated that it was a "man with a gun case," gave the suspect's description and location, and told the patrol that it was an anonymous tip with no "call-back" at that time.*fn9 Moments later, the dispatcher reported that the call-back was a cell phone.*fn10 In due course, the police entered the after-hours club, identified the defendant, patted him down, and discovered a Bryco 9-millimeter semi-automatic pistol at the small of his back, inside his waistband.Defendant was arrested and later gave a videotaped confession in which he admitted that he had possessed the 9-millimeter semi-automatic pistol.

Discussion

Reasonable Suspicion

The defendant argues that he was frisked illegally by a police officer, based on an unreliable anonymous tip, in violation of the Fourth Amendment and that the gun and his custodial statements must be suppressed.*fn11

A police officer may not stop a person to investigate possibly criminal behavior without "reasonable suspicion" that criminal activity has occurred or is about to occur.*fn12 The test for reasonable suspicion is less demanding than the test for probable cause — an officer making such a stop need only "be able to articulate more than an `inchoate and unparticularized suspicion or `hunch' of criminal activity.'"*fn13 Finally, reasonable suspicion, like probable cause, is dependant upon both the content of information possessed by police and its degree of reliability, both of which should be considered in the totality of the circumstances.*fn14

Anonymous Tips

When the information giving rise to a reasonable suspicion comes from an anonymous tipster, it is more difficult to gauge both the reliability of the information and the credibility of the informant.*fn15 In such cases, "something more" is required — some "indicia of reliability" to corroborate the information and establish the requisite quantum of suspicion.*fn16

The defendant argues that the tip leading to his arrest was anonymous and that it lacked the requisite indicia of reliability to establish reasonable suspicion to stop and search him. He relies on Florida v. J.L.,*fn17 in which the Supreme Court recently held that an anonymous tip giving the location and description of an individual allegedly carrying a gun but containing "no predictive information" about the subject's future movements left the police "without means to test the informant's knowledge or credibility."*fn18 In that case, the anonymous tip was held insufficient to justify a stop and frisk.*fn19 In terms of the quality and reliability of information that the police had by the time the defendant was stopped, however, this case is quite different from J.L.

The Court does not regard the call in this case as having been truly anonymous.*fn20 The caller gave information to the police that she believed would have enabled the police to determine her identity and location. She said that she had made a report of a prior incident and named a police officer who would have knowledge of that report.*fn21 At another point in the conversation, she said that the police would know about it and know who she was.*fn22 The critical point for purposes of this determination is that the caller gave information which, on the face of it, indicates that she believed she was identifiable to the police. That distinguishes this case from J.L., and adds to the reliability of the tip because she subjected herself to the risks of adverse consequences in the event that the tip proved to be false.*fn23

Furthermore, the caller made it clear that she had a very sound reason for refusing to give her name during the 911 call, despite the fact that she believed that the police, in due course, could track her down. According to the 911 call, the defendant had hit the caller twice — once requiring 15 stitches and once hitting her in the head with a gun. Her expressed concern was the fear that if her name was used in the 911 call, it would come to the attention of the officers responding to the call and could be mentioned in the course of the arrest, resulting in reprisals against her.*fn24

There are two additional, relevant facts, one of which clearly distinguishes this case from J.L. and the other of which appears to do so. First, unlike J.L., this 911 call and, indeed, all of the communications that flowed from it, were recorded.*fn25 Thus, this case does not deal with an attempt to reconstruct a series of hurried communications, the nuances of which are important but very difficult to reconstruct after the fact. This lends strength to the Court's conclusion about whether there was reasonable cause. Second, here it is crystal clear that the caller had first hand knowledge of the alleged criminal activity. In J.L., on the other hand, it was not clear that the caller had a comparable basis for the information he imparted.*fn26

In all of the circumstances, therefore, the Court has no doubt that the tip provided adequate first hand knowledge of a crime and was sufficiently reliable to establish reasonable cause to stop and search the defendant. It follows, therefore, that if the call had been received by a police officer, there was reasonable cause under the principle of collective, or imputed, knowledge to stop and search the defendant. This principle is based on the idea that whatever is known to any police officer working on a matter is imputed to the others and, in consequence, the officers who went into the after-hours club on that hypothesis would have had reasonable cause for a Terry stop.*fn27

Imputing Knowledge from a 911 Operator to the Police

The defense challenges the propriety of imputing knowledge from a 911 operator to a police officer, arguing that even if the operator had sufficient information to establish reasonable suspicion to stop and search the defendant, the police did not.*fn28 The defense would measure the existence of reasonable cause solely on the basis of what was communicated over the radio between the police dispatcher and the responding officers. The law of collective, or imputed, knowledge does not, however, put the Court in quite that straitjacket.

Although the doctrine is sometimes referred to as the "fellow officer rule"*fn29 and often is invoked to impute knowledge from one police officer to another,*fn30 courts also have applied the rule more broadly, referring to the collective knowledge of "law enforcement authorities,"*fn31 a "large police organization,"*fn32 or a police department generally.*fn33 The particular verbal formulations used appear to reflect the facts of given cases, with courts simply describing the situations before them, sometimes using "police officers" and sometimes using an auxiliary, depending on who is involved.

One exception to this is United States v. Santa,*fn34 in which the Second Circuit stated that knowledge may be imputed only from one police officer to another who is working on the same case.*fn35 Santa was, however, an odd case. Santa was arrested after the vacatur of his warrant, notice of which had been mistakenly sent to the arresting police department 17 months earlier.*fn36 The court found that a desk clerk's "knowledge" — garnered from the correspondence received in error — should not ipso facto be imputed to the arresting officers.*fn37 Because of these unique facts, Santa does not have much bearing here.

The ultimate question, in light of the Fourth Amendment, is one of reasonableness. The defense argues that police officers are trained and have developed skills that provide them with a basis for assessing probable or reasonable cause that civilian employees of a police department, including 911 operators, should not be assumed to possess. This is probably true, but does not make a great deal of difference. The imputed knowledge cases turn not on the characteristics of the personnel among whom knowledge is imputed, but rather involve practical assessments driven by the overall requirement of reasonableness. The practical necessity of imputing knowledge among law enforcement personnel is significant — those involved in an investigation cannot reasonably be expected to spend a great deal of their time repeating to every officer who may make a stop or arrest all of the facts and information known to each and every member of the law enforcement team.*fn38 If the Constitution so required, it would bring to mind Dickens' comment attributable to Sergeant Bumble about the law being an ass.*fn39 Given this reality, the Supreme Court has come to the view that an arrest or a stop and search is valid if law enforcement authorities as a whole have probable or reasonable cause because that is the only way the system can work effectively. As the D.C. Circuit stated in Williams v. United States, a case subsequently followed by our Circuit,*fn40

"[I]n a large metropolitan police establishment the collective knowledge of the organization as a whole can be imputed to an individual officer when he is requested or authorized by superiors or associates to make an arrest. The whole complex of swift modern communication in a large police department would be a futility if the authority of an individual officer was to be circumscribed by the scope of his first hand knowledge of facts concerning a crime or alleged crime."*fn41

This Court holds that Williams applies to the facts of this case. New York is an enormous city. The police department decided years ago that it did not make sense to have highly trained and costly police officers as telephone operators and so hired somewhat cheaper personnel to handle that task, putting police officers back on the street where they belong. Given the huge volume of traffic through the 911 response center, it is hard to imagine the system working any other way in an economically rational universe.

As stated previously, there is no doubt that the stop here would have been valid if the caller in this case had spoken with a police officer. Given the realities of law enforcement in New York City in the year 2000, the Court does not believe that the Constitution requires a different outcome simply because a police officer did not answer the telephone. This is not to say that the Constitution applies differently to a big city than to any other. It is only to recognize that what may be practical in a smaller city may not be practical here and, therefore, that what is reasonable here may differ from what is reasonable elsewhere. The stop in this case was reasonable. In consequence, defendant's motion to suppress was denied.

SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.