Anonymous phone tips from someone claiming personal knowledge of a recent crime can be enough for police to conduct a car stop, the Court of Appeals ruled in a 5-2 decision that civil rights attorneys say chips away at New Yorkers’ civil rights.
Attorneys from the New York Civil Liberties Union and Legal Aid Society called the decision “depressing,” “surprising” and “extremely troubling,” particularly because it allows police to justify use of anonymous tips by the “totality” of a situation, adopting the less clear and looser federal standard for evaluating whether and how police can act on those tips.
Daniel Lambright, the NYCLU’s special counsel for criminal justice litigation, said the ruling is a blow to Fourth Amendment protections against unreasonable search and seizure.
“Courts can point to many different totality of circumstances that allow for officers to have reasonable suspicion to pull people over,” Lambright said. “It’s really troubling, and I think you’re going to see officers pull people over based on tips that they otherwise would not have when they have not established the reliability or credibility of the tip or tipster.”
Legal Aid Society attorney Clara Hammond-Oakley said the ruling could indicate a bigger trend.
“I have worries that this is the start of New York courts stepping back from our more protective standards that we’ve had for so long,” Hammond-Oakley said. “Totality of circumstances is an incredibly mushy, squishy test that can be satisfied by cherry picking whatever information supports your argument…It encourages inconsistent decisions and gives a lot more leeway to police.”
Lambright and Hammond-Oakley said they feared the decision would increase police stops, the likelihood of police racially profiling people and embolden people to use the police maliciously.
“I suspect also that you’re going to get people that utilize these tips in bad ways to set police on people they want to see harassed by police,” Lambright said.
Chief Judge Rowan Wilson and Judge Jenny Rivera shared Lambright’s concerns. In a dissent, they called the majority’s decision, written by Judge Anthony Cannataro who was joined by Judges Michael Garcia, Madeline Singas, Shirley Troutman and Caitlin Halligan, dangerous.
“The majority holds that the police can stop anyone on the road based on an anonymous phone caller’s allegation that they committed a crime, simply because the caller described the model and color of the car, and the race and gender of the driver, even when an officer at the scene contradicted the caller’s allegations,” Rivera writes. “The result is the majority’s policy-driven and largely unexplained adoption of the federal totality of the circumstances test, the same test this court has long rejected because it fails to adequately protect New Yorkers from malicious tipsters who act under the guise of anonymity, and from unsubstantiated allegations based on pure rumor.”
The Bronx District Attorney’s office commended the majority’s ruling, which was in the office’s favor, saying the decision will support police in their efforts to increase public safety.
“[T]he court ruled that the totality of the circumstances established that the information the police received from a contemporaneous anonymous tip gave them the reasonable suspicion necessary to stop [a] car,” a spokesperson for the office told amNewYork Law. “This decision is important because it clarifies the standard to use when determining whether the police were justified in stopping a car and because it will afford the police more flexibility in assessing anonymous tips, which will aid the effort to get illegal firearms off the streets and hold accountable those who possess them.”
Previously, New York police could only act on anonymous tips that included the tipster’s basis of knowledge and established the tipster’s reliability. This stricter standard, commonly referred to as the Aguilar-Spinelli standard after two 1960s decisions that developed it, is still used in the state to determine whether an anonymous tip can provide officers with enough probable cause to arrest someone.
However, as Rivera pointed out in her dissent, car stops regularly lead to arrests, as one did in the Bronx case at hand.
“If the police can rely on an anonymous tip to seize an individual without sufficient assurances of that tip’s reliability and accuracy [under the totality standard], and, in turn, use the information they acquire from the stop to make an arrest, then the majority has effectively eroded the [Aguilar] standard for probable cause,” Rivera writes for the dissent. “We should not apply a more protective standard to one but not the other.”
People v. Leighton
The case behind the decision, People v. Leighton, that led to this decision evolved out of an anonymous 11 p.m. 911 call in June of 2014. A man claimed he had just been shot, was wounded in his right arm and was at the intersection of 233rd Street and White Plains Road in The Bronx.
The caller, who first said his name was Brian, then said he wouldn’t give his full name or a callback number. He described the perpetrators as two Black men, one being Leighton R., in a white Mercedes-Benz who he “had beef with.” He provided the car’s license plate and the address of one of the men.
The dispatcher who received “Brian’s” call broadcast the report and immediately received word from an officer stationed near the intersection that no shots had been fired in the area. However, a pair of nearby officers soon saw a car matching the tipster’s description and stopped it, asked for Leighton’s license and learned he was coming from a baby shower in Mount Vernon. The officer asked Leighton, “If there was anything in the car the officers should know about,” to which Leighton responded, “No, you can check the car.”
During the car search, the officers saw a gun and smelled gunpowder through a small gap in a locked glove compartment. They unlocked it using Leighton’s key fob, then placed Leighton under arrest. Only after the officers had stopped the car did the dispatcher get back in touch with the caller, who then said the alleged shooting took place in Mount Vernon.
Hammond-Oakley, who represented Leighton in the case, argued that the gun police recovered from his car should be considered suppressed evidence and his charge should be dropped because the police never had the right to stop his car based on the tip. She said that the majority’s decision was even more concerning and surprising to her because of the “extreme unreliability” of the anonymous caller and because an officer near the intersection immediately reported that he didn’t hear a gunshot.
The 911 caller was never found or properly identified and it was never determined whether Leighton’s gun had been used to shoot the caller, or anyone, that night — in either Mount Vernon or The Bronx. Leighton’s conviction for unlawful possession of a firearm, which police only discovered he had after stopping him based on the anonymous tip, was based on Leighton not having the proper license to carry it.
Additionally strange, Hammond-Oakley said, the man who made the call refused the 911 operator’s attempts to send an ambulance or police assistance, eventually telling the operator he was going to seek treatment at a local hospital. However, when officers attempted to locate the caller by calling every hospital in the area, no medical center reported treating anyone with the caller’s reported injuries and description that night.
“Where you have not only information in the call itself that renders it very unreliable, but also this police officer who’s saying that the call is unreliable, of all the cases to decide to lessen the standard, I don’t really know why this would be the one to do it in,” Hammond-Oakley said. “This call shows why we require more investigation before making a stop.”
She said she found the decision “insulting” to police work and feared it would disincentivize thorough investigations.
Rivera agreed in her dissent, particularly because a portion of the majority’s conclusion reads that the “result here might be different” had the police known that the alleged shooting occurred in Mount Vernon prior to making the car stop.
Beyond concerns about the case’s impact on potential increased police stops, arrests and public weaponization of the police, Lambright said the decision showed a concerning adherence to federal case law, something the state’s conservative judges have long been pushing for. He also observed an unusual breakdown among the individual judges of the state’s highest court.
“I think many people regularly expect Cannataro, Garcia and Singas to come to certain conclusions like this, and generally view Troutman and Halligan as the middle of the court, whereas Rivera and Chief Judge Wilson have taken more protective views of the Fourth Amendment,” Lambright said. “It will be interesting to see if this was just kind of an aberration for Troutman and Halligan, or if that’s just going to be how they rule on Fourth Amendment search and seizure issues in the future.”
