The People, Respondent,v.Costandino Argyris, Appellant.BriefN.Y.October 21, 2014To be Argued by: STEVEN R. KARTAGENER (Time Requested: 30 Minutes) APL-2013-00188, APL-2013-00189 Queens County Indictment No. 2078/07 Appellate Division, Second Department Docket Nos. 2010-10891 and 2010-11029 Court of Appeals of the State of New York THE PEOPLE OF THE STATE OF NEW YORK, Respondent, – against – COSTANDINO ARGYRIS and JOHN DISALVO, Appellants. REPLY BRIEF FOR APPELLANTS STEVEN R. KARTAGENER, ESQ. Attorney for Appellants The Woolworth Building 233 Broadway, Suite 2340 New York, New York 10279 Tel.: (212) 732-9600 Fax: (212) 732-6966 Date Completed: May 5, 2014 TABLE OF CONTENTS Page PRELIMINARY STATEMENT.................................................................. 1 ARGUMENT The Second Circuit's Recent Decision in United States v. Freeman....... 2 The People's Argument that this Case is to be Distinguished From Florida v. J.L., Moore, and William II, Merely Because the Anonymous 911 Caller Claimed that he Personally Saw Someone Place a "Big Gun" Into the Back of the Mustang..................................... 10 The People's Reliance on People v. Jeffery and People v. Moss............. 13 In the Absence of Any Predictive Information, the Police Officers Who Responded to the 911 Call had Nothing to Corroborate................. 15 What P.O. Valles Alone Observed........................................................... 17 The People's Argument thatAguilar-Spinelli Analysis Should Govern the Reasonable Suspicion Determination In This Case............................ 20 The Supreme Court's Ruling in Alabama v. White.................................. 23 The People's Flawed Legal Analysis....................................................... 26 The People's Failure to Address Point II of Appellant's Brief................ 27 Defendants' Reply Concerning CPL § 470.15 (1)....................................... 30 CONCLUSION............................................................................................ 32 -i- TABLE OF AUTHORITIES Page(s) Cases: Alabama v. White, 496 U.S. 325 (1990) ...................................................... 23, 24, 26 Florida v. J.L., 529 U.S. 266 (2000) ........................................................... . Illinois v. Gates, 462 U.S. 213 (1983) ........................................................ . People v. Ballard, 279 A.D.2d 529 (2d Dept. 2001) ................................. . People v. Braun, 299 A.D.2d 246 (1st Dept. 2002) ..................................... . People v. Brnja, 50 N.Y.2d 366 (1980) ...................................................... . Passim 23 14 11,27 17, 18 People v. DeBour, 40 N.Y.2d 210 (1976) .............................................. 15, 27, 28, 29 People v. Di Raffaele, 55 N.Y.2d 234 (1982).............................................. 8-9 People v. Dodt, 61 N.Y.2d 408 (1984) ........................................................ 8 People v. Garcia, 20 N.Y.2d 317 (2012) ..................................................... 27 People v. Havelka, 45 N.Y.2d 646 (1978) ................................................... 8, 22 People v. Hetrick, 80 N.Y.2d 344 (1992) .................................................... 9 People v. Hicks, 38 N.Y.2d 90 (1975) ......................................................... 9, 23 People v. Hollman, 79 N.Y.2d 181 (1992) .................................................. 27, 28 People v. Jeffery, 2 A.D.3d 1271 (4th Dept. 2003) ................................. 13, 14, 15, 31 People v. Ketcham, 93 N.Y.2d 416 (1999) .................................................. 19 People v. Moore, 6 N.Y.3d 496 (2006)........................................................ Passim People v. Moss, 89 A.D.3d 1526 (41h Dept. 2011) ................................. 13, 14, 15,31 People v. Ocasio, 984-985 ........................................................................... 29 -ii- People v. Olsen, 93 A.D.2d 824 (2d Dept. 1983) ........................................ 14 People v. Parris, 83 N.Y.2d 342 (1994) ...................................................... 9, 22 People v. Paulin, 70 N.Y.2d 685 (1987)...................................................... 8 People v. Wilkinson, 5 A.D.3d 512 (2d Dept. 2004) ................................... 19 People v. William II, 98 N.Y.2d 93 (2002).................................................. Passim Terry v. Ohio, 392 U.S. 1 (1968) ................................................................. 19, 28 United v. Freeman, 735 F.3d 92 (2d Cir. 2013) ..................................... 2, 3, 4, 6, 27 Wong Sun v. United States, 371 U.S. 471 (1963) ........................................ 28 Statutes: U.S. Canst. Amend. 4................................................................................... 28 N.Y. Canst. Article I. Sec. 12 ...................................................................... 28 CPL § 470.15 (1).......................................................................................... 30, 31 CPL § 470.15 (2).......................................................................................... 31 CPLR 2221................................................................................................... 7 -iii- STATE OF NEW YORK COURT OF APPEALS ---------------------------------------------------------------------){ THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- COSTANDINO ARGYRIS, JOHN A. DiSALVO, Defendants-Appellants. ---------------------------------------------------------------------){ APL-2013-00188 APL-2013-00189 REPLY BRIEF FOR DEFENDANTS-APPELLANTS Preliminary Statement Defendants-appellants Costandino Argyris and John A. DiSalvo respectfully submit this brief in reply to the brief submitted to this Court by respondent. -1- ARGUMENT The Second Circuit's Recent Decision in United States v. Freeman Relying upon the plainly stated, unambiguous language of the Supreme Court's decision in Florida v. J.L., 529 U.S. 266 (2000), and this Court's consistent decisions in People v. Moore, 6 N.Y.3d 496 (2006) and People v. William II, 98 N.Y.2d 93 (2002), defendants, in their initial brief, make the argument that the gunpoint seizure of defendants and their vehicle in this case, on the basis of an anonymous 911 call, was violative of defendants' constitutional rights because the anonymous tipster's telephone call lacked any "predictive" information of the sort that might satisfy the governing rule as set forth in Florida v. J.L., Moore, and William II. As stated in Moore, 6 N.Y.3d at 499, that rule makes clear 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 [citation omitted]." After our initial brief was filed, the United States Court of Appeals for the Second Circuit, in United v. Freeman, 735 F.3d 92 (2d Cir. 2013), issued a decision that fully adopted the reasoning of this Court's holdings in Moore and William, II. We respectfully submit that Freeman squarely supports the points pressed by defendants herein. -2- In Freeman, an anonymous telephone tipster placed two calls to 911, reporting from her vantage point that she had seen a man with a gun. The caller refused to identify herself, but her telephone calls were recorded. The telephone's number was identified as coming from a cell phone. Police officers rushed to the scene, where they saw the defendant, who fit the description of the alleged gun possessor, walking in the street. Two police officers got out of their vehicle, approaching the defendant, but he refused to stop walking away from the police. Eventually, the police grabbed the defendant around the waist and forced him to the ground. A gun was removed from his waistband. The Second Circuit Court of Appeals ruled, primarily on the basis of Florida v. J.L., that the weapon should have been suppressed because, just as in J.L., there was no "predictive" information that might have given the police good grounds to believe that the anonymous 911 caller was telling the truth - the sine qua non for a finding of reasonable suspicion. Secondly, in overruling the District Court, the Second Circuit had found that whether or not an anonymous caller is an "eyewitness" is manifestly irrelevant in the establishment of his reliability for determining a reasonable suspicion. The People's argument here that the anonymous caller's purported "personal observation" established his reliability in that same context offers no more merit than the argument -3- rejected by the court in Freeman. Further, the Freeman court observed that even if an anonymous caller claims to be an eyewitness, his claim does nothing to bolster his "reputation for honesty" or his "credibility" in the absence of providing predictive information. In this regard, the Freeman court reasoned: "That the caller was an eyewitness makes the instant case no different than J.L.; there in order to observe that J.L. was waiting at the bus stop clad in a plaid shirt, the caller would have been an eyewitness as well." United States v. Freeman, at 99. Moreover, the court in Freeman found that such observation will only describe a suspect's readily observable description and location, but will not demonstrate that the tipster has "knowledge of concealed criminal activity." The Court wrote, "In this case, the pair of anonymous calls to 911 lacked any indicia of reliability and did not provide the police with the reasonable suspicion needed to stop Freeman. The district court below and the government attempt to distinguish the call in the instant case from that in J.L. to no avail. The district court determined that the call was not 'truly anonymous' because the cell number was automatically recorded by the 911 system, the individual twice called 911, and based upon the information conveyed in the call, the caller was an eyewitness. The government now similarly aims to distinguish J.L. by arguing that, among other things, the calls had sufficient indicia of reliability because the -4- physical description was more detailed here than in J.L. and because the calls reflected Freeman's precise and changing location. "While the proffered distinctions are indeed factual distinctions between J.L. and the instant case, they are not ones that undermine the reasons why anonymous phone calls must have sufficient indicia of reliability to support a finding of reasonable suspicion, nor do they provide those indicia for this caller or do anything to alter the reliability analysis laid out in J.L. While in J.L. the Court did indeed note that the call was not recorded, this was not the determinative question. Just as in J.L., here 'nothing is known about the informant.' As the caller has not placed her 'anonymity at risk' ... this call is no different than that in J.L. The fact that the call was recorded and that the caller's apparent cell phone number is known does not alter the fact that the identity of the caller was still unknown, leaving no way for the police (or for the reviewing court) to determine her credibility and reputation for honesty - one of the main reasons tips from known sources are afforded greater deference than anonymous ones. (Citation omitted). Moreover, while the government argues that the fact that her number is known would now allow police to track her down, and thus she could be open to the consequences of false reporting, she never has been tracked down, so there is no way for this Court to determine that the number actually would trace back to the individual who made the phone call. There is nothing offered to suggest, for example, that the phone was not a prepaid phone, which would be as anonymous as a call placed from a public pay phone. The fact that her identity remains unknown unhinges the risk of consequences from the fact of the calls. Knowledge of the caller's number - without more - has not altered the factors that underlie J.L. 's demand that anonymous calls be supported by additional indicia of reliability. Moreover, reasonable suspicion must -5- exist at the time a Terry stop is made. Terry v. Ohio, 392 U.S. at 20." Freeman, at 98. In the present case, the People, in their responsive brief, attempt to make the same argument about the 911 caller supposedly not being "truly anonymous" because his call was recorded and the number was traceable back to his cell phone as noted in the SPRINT report. See Respondent's Brief, p. 37, n. 18. However, as can be easily seen, this was essentially the same argument rejected by the Second Circuit Court of Appeals in Freeman, and there is nothing that makes the argument any more attractive in this case. Indeed, in the present case there exists a blatant contradiction in the People's making of this "not truly anonymous" argument, in light of the fact that the People concede they are proceeding on this appeal under the legal analysis required for an anonymous caller- the same analysis that they had proceeded under at the suppression hearing. Respondent's brief, p. 37, n.18. And, that the People now claim they "chose not to"disclose the caller's identity at the suppression stage certainly forecloses them from raising the issue now. See, ibid, n. 18. We most respectfully submit that in accordance with the Freeman court's ruling, and with the People's concession above, that this issue has no merit and that it has been improperly raised. -6- Lest there be any further doubt about this issue, it is also of significant importance here that the only record of the caller introduced into the record evidence at the hearing and relied upon by the parties was the 911 call portion of the tape; all other portions of the tape were deemed to be irrelevant by the lower court, and all parties were in agreement about that. See A. 280-281. The entire portion of the 911 call admitted into evidence and stipulated to be People's Exhibit lis reproduced at Appellant's Brief, pp. 5-7. Therein, the anonymous caller twice refused to leave his name and number with the 911 operator, and he also refused to wait around for the arrival of the police. 1 The People raised this "truly anonymous" issue for the first time in their motion for reargument, after suppression had initially been granted, and this was improper. See A. 131, n. 4. A motion to reargue is not the proper place in which to introduce new, unsworn evidence. CPLR 2221. Furthermore, it is important to note that although Justice Holder ultimately reversed his original suppression order on reargument as a matter of law in his June 18, 2010 decision, he nonetheless found the caller here to be anonymous, never once reaching the People's post suppression claims that the caller was anything other than anonymous. See A. 184-198. 1 The defendants herein submit the record evidence of the electronic portion of the CD turned over to the defendants as discovery material containing the 9111 call with his reply. -7- Moreover, the People having had a "full and fair opportunity" to raise at the suppression hearing any claim concerning the 911 caller's anonymity, their failure to do so should be binding on this appeal. See People v. Havelka, 45 N.Y.2d 646 (1978).2 Furthermore, it must also be recognized that in making this argument, the People have presented a number of additional, patently improper points. First, the People most egregiously assert in p. 37, n.18 that the People actually had contact with the anonymous caller at some later point in time, after defendants were arrested, but nonetheless decided not to call him as a witness at the suppression hearing. There is not a stitch of record evidence before, during, or after the suppression hearing to support that assertion. Accordingly, it is grossly improper for the People to have made such a dehors the record argument, particularly when there is no support in the record for the making of such a statement. See, e.g., People v. Paulin, 70 N.Y.2d 685, 686 (1987); People v. Dodt, 61 N.Y.2d 408, 416 (1984); People v. Di Raffaele, 55 2 During the hearing, the People failed to raise an objection when Justice Holder pronounced the caller to be anonymous. A. 351. Also, the record of the proceedings in Supreme Court shows that throughout their initial papers in opposition to suppression, the People, in their initial memorandum of law (A. 75-93) had repeatedly conceded that the caller was anonymous, most notably at A. 88, n. 6. The People stated that "while the caller is truly anonymous .... " Additionally, in response to the people's motion to reargue suppression, the defendants argued, at that point, that the People were estopped from challenging the caller's anonymity, on the grounds that the people could not advance a theory contrary to the theory they had advanced before suppression was granted. A. 151, n. 1. -8- N.Y.2d 234, 242-243 (1982). The same can be said in response to assertions in footnote 18 concerning the "SPRINT" Report, which was never admitted into evidence at the suppression hearing, and was never referred to at the suppression hearing for the purpose of establishing any relevant legal principle. Moreover, in this same footnote, the People refer to the anonymous informant here, for the purpose ofthe rules affecting credibility, as being a "citizen-informant." That, however, is another outright error. The nomenclature used by this Court in making reference to "citizen-informants" makes clear that a "citizen-informant" is not an anonymous informant, but rather a public-minded citizen who comes forward and does provide the police with his or her identity so that they can seek a warrant, or make a valid warrantless arrest. See People v. Parris, 83 N.Y.2d 342, 350 (1994) ("an identified citizen informant is presumed to be personally reliable"); People v. Hetrick, 80 N.Y.2d 344, 349 (1992) (" ... because Katy was an identified citizen informant, and not an unnamed informant, there was a 'built in' basis for crediting her reliability"); People v. Hicks, 38 N.Y.2d 90, 93-94 (1975). By no stretch of the imagination can the anonymous caller in this case be described as being a "citizen informant" for credibility purposes. To the contrary, he was a thoroughly anonymous tipster, as conceded in other portions of the People's Respondent's Brief (see, e.g., Point One, p. 22; Section A, p. 24), whose anonymous -9- statements to the 911 operator must be viewed as inherently suspect. The People's Argument that this Case is to be Distinguished From Florida v. ].L., Moore, and William II, Merely Because the Anonymous 911 Caller Claimed that he Personally Saw Someone Place a "Big Gun" Into the Back of the Mustang At the core of the People's contention that the information provided by the anonymous tipster herein satisfied the reasonable suspicion standards enunciated in Florida v. J.L., Moore, and William II, is the tipster's statement to the 911 operator that he supposedly saw a "big gun" being placed into the back of the Mustang automobile. According to the Respondent's Brief, the recitation of this alleged personal observation in the information provided by the anonymous informant to the 911 operator somehow managed magically to erase the requirement of Florida v. J.L., Moore, and William ll, that for reasonable suspicion to exist, there must be "predictive information- such as information suggestive of criminal behavior -so that the police can test the reliability of the tip." This argument by the People here makes no sense. The entire point of the need for "predictive information" is to make it possible for the police to independently test the reliability of the tip and the tipster before someone might be forcibly detained on the basis of this otherwise untested information. An informant's unsupported claim that he saw a gun being placed into a vehicle, based entirely on the informant's -10- credibility, is no more reliable, we respectfully submit, than is a claim that a particular person "had a gun." In either instance, and in the absence of any other predictive information, the police are certainly foreclosed from determining independently whether the tip is a truthful one. Accordingly, the most important component of the Florida v. J.L. analysis - the availability of police evaluation of the tip - is thereby rendered nugatory. That cannot be right. Our analysis herein, rejecting the People's argument that the need for predictive information can be dispensed with if the anonymous tipster simply claims that he has personally seen someone in possession of a gun, is fully supported by the decision of the Appellate Division, First Department, in People v. Braun, 299 A.D.2d 246 (1st Dept. 2002). The facts of that case are illuminating: "At 3:04A.M. on May 2, 1997, an anonymous 911 caller reported she had just witnessed a store-front burglary on Third A venue near 32nd Street in Manhattan. The tipster, whose call was recorded, indicated that she had spoken to the burglar and described him as a black man wearing a dark colored baseball hat, a dark long-sleeved shirt, and jeans. Two minutes later, at 3:06A.M., defendant, who fit the tipster's desription, was stopped by the police officers at the intersection of 34th Street and Third Avenue." (Emphasis added). Despite the informant's claim that she had personally witnessed the burglary and had actually spoken with the burglar, the Appellate Division interpreted Florida -11- v. J.L. and People v. William II to require the suppression of the stolen property found on the defendant's person. The court believed that in the absence of predictive information, notwithstanding the accuracy of the description given and the claim that the informant saw the defendant committing the crime, reasonable suspicion could not be found to exist because there was no effort by the police to independently corroborate the tipster's information. We respectfully submit that the decision in Braun, which we believe to be correct, stands in sharp conflict with the confusing analysis now suggested by the People in the present case. This Court, like the Supreme Court, has recognized that there is good reason for having the questionable information provided by an anonymous 911 caller scrutinized by independent police evaluation before reasonable suspicion may be found to exist. The People's argument is that by simply claiming, without any corroboration, to have personally seen the contraband in issue, the anonymous tipster may thereby self-validate his claim, independent of police observation of predictive information, without any regard for the "predictive information" rule. This illogical contention makes no sense at all, and it would be a case of bootstrapping of the worst sort. The People's argument in this regard should, therefore, be rejected. At the bottom line, there was not a stitch of predictive information contained in the 911 call that might have served to support the notion that the information contained in that call -12- was sufficiently reliable to justify the gunpoint seizure of defendants and their automobile on grounds of reasonable suspicion. The People's Reliance on People v. Jeffery and People v. Moss In support of their argument that the "predictive information" rule should not obtain in the case at bar, the People offer two Fourth Department cases, People v. Jeffery, 2 A.D.3d 1271 (4th Dept. 2003), and People v. Moss, 89 A.D.3d 1526 (4th Dept. 2011). In Jeffery, an anonymous 911 caller reported that a "drunk driver" named Jeffery was attempting to leave a specifically described location in a specifically described motor vehicle. The police responded and observed Jeffery pulling out while behind the wheel of the specifically described auto. The police pulled Jeffery over on the basis of the anonymous 911 call alone, and "did not observe any actions indicative of criminal behavior prior to the stop." The Appellate Division upheld the seizure in Jeffery, reasoning that "the report of the 911 caller was based on the contemporaneous observation of conduct that was not concealed." Ironically, the court followed this proposition with a cf citation to People v. Braun, 299 A.D.2d 246 (1st Dept. 2002), which is set forth above at pp. 10- 11. As this Court will recall, in Braun, the Appellate Division, First Department found that the evidence had to be suppressed on the basis of Florida v. J.L. and -13- People v. William II despite the fact that the anonymous 911 caller said that she saw the defendant committing a store-front burglary in plain view at a specific location, and that she spoke to the burglar face to face. The court in Jeffery apparently disregarded the ultimate holding in Braun, and upheld the seizure on reasonable suspicion grounds because, supposedly, the anonymous 911 call "contained details 'so specific and congruous with that which was actually encountered that the reliability of the information could reasonably be assumed."' In support of this legal proposition, the Appellate Division directly cited as its sole support People v. Olsen, 93 A.D.2d 824 (2d Dept. 1983). What the Appellate Division did not mention in Jeffery was that the continued vitality of Olsen had already been brought into serious doubt in a later Second Department case, People v. Ballard, 279 A.D.2d 529 (2d Dept. 2001), which effectively overruled Olsen on the basis of Florida v. J.L. Accordingly, we are not at all sure exactly what valid legal theory, if any, is it that People v. Jeffery stands for. One thing for certain is that the First Department's decision in People v. Braun stands in direct conflict with the Fourth Department's ruling in Jeffery. We respectfully submit that it is the holding in Braun, based on Florida v. J.L. 's "predictive information" rule, that should prevail herein. As for People v. Moss, suffice it to say that this short Fourth Department -14- reasonable suspicion decision, involving an anonymous 911 caller, quotes from People v. Jeffery verbatim, and makes no mention at all of Florida v. J.L. It appears to exist as an anomaly in the law. In light of the weight of authority being stacked against it, we do not believe that Moss should be accorded any significant precedential value in this case. In the Absence of Any Predictive Information, the Police Officers Who Responded to the 911 Call had Nothing to Corroborate The People erroneously rely upon the Appellate Division's analysis under People v. Moss and People v. Jeffrey that the contemporaneous observation of conduct that was not concealed had been "sufficiently corroborated to provide reasonable suspicion for the stop." A. 621. In any police/citizen encounter, it is well-settled that the reasonableness of official suspicion must be measured by what the police officers knew before they conducted the search and seizure at issue. See Florida v. J.L., 529 U.S. at 271; People v. William II, 98 N.Y.2d at 98; People v. DeBour, 40 N.Y.2d 210, 215-216 (1976). P.O. Valles, alone in his marked police vehicle, was the police officer who cut off defendants vehicle and seized it and its passengers at gunpoint. At the time that he did so, he was unaware of any predictive information that had to be evaluated, since the 911 call from the anonymous tipster did not contain any. Furthermore, P. 0. -15- Valles did not see defendants act in any suspicious manner that might have been indicative of criminality. This Court, in People v. Moore, provided some insight as to what it might deem to be suitable corroboration of an anonymous tip before a forcible seizure may occur. First, the Court observed that an anonymous tip supplying the requisite predictive information must be corrobrated by police observation of the suspect's already predicted "criminal behavior, so that the police can test the reliability of the tip." 6 N.Y.3d at496, 499. Second, the Court reasoned that if police, upon responding to an anonymous tip, observe the suspect or suspects acting, in their experience, suspiciously, then the police would have a reasonable level of suspicion to justify a seizure. As the Court said, "[ u ]nder our settled DeB our jurisprudence, to elevate the right of inquiry to the right to forcibly stop and detain, the police must obtain observations of suspicious conduct sufficient to provided reasonable suspicion of criminal behavior. Had defendant, for example, reached for his waistband prior to the gunpoint stop or actively fled from the police, such conduct, when added to the anonymous tip would have raised the level of suspicion." 6 N.Y.3d at 500-501 (emphasis added.) In the present case, what was lacking from the necessary components of reasonable suspicion is the critical showing of some predictive information for the -16- police to have evaluated before the gunpoint seizure herein. Fatal to the People's reasonable suspicion argument is that there were no such predictive facts for the police to consider, and that the responding officers had observed nothing which the Court, in Moore, would deem to be suspicious behavior. What P.O. Valles Alone Observed It must be recognized that the only pertinent events are those that confronted P.O. Valles at the time that he took action in the limited one to two minute time period between the moment he first saw the black Mustang in which defendants were riding and the moment he cut in front it. See People v. Brnja, 50 N.Y.2d 366, 373 n. 4 (1980). In his order on June 18, 2010, in which he granted the People's motion for reargument and denied the motion to suppress, Justice Holder stated that "as an initial matter, the Court hereby vacates the conclusions of law articulated in its February 22, 2010 decision, [in which he granted suppression], but adheres to the findings of fact stated therein." A. 186. Justice Holder originally found that: "It appears that P.O. Valles had heard a radio transmission concerning white males with guns along with a description and a license plate. After hearing the radio transmission, he proceeded eastbound on 30th A venue and observed the Mustang coming toward him and then making a tum onto 31st Street. He did not see any other police vehicles or officers at that time. He made a tum to follow the vehicle -17- and stopped his police vehicle in front of it to stop it. Thereafter, he made a radio transmission that he had the car stopped and waited for backup to arrive. He then exited his vehicle with his gun drawn and pointed toward the car." A. 97. Significantly, Justice Holder correctly noted that prior to the stop, "Officer Valles had not heard any radio transmissions that any other officers had found the vehicles." See A. 97, n. 1. Officer Valles, himself, consistently testified that the only radio transmission he received was the initial radio run. A. 551,569. Additionally, he testified that he had not seen or known anything about the gray van prior to the van's seizure. A. 561. P.O. Valles also testified that he had not seen any other police vehicles prior to his seizure. A. 533. The record shows that the actions by the other officers, to the effect that they had found the vehicles, or had followed them, had not been communicated to P.O. Valles. Nor was P.O. Valles directed by any other officers who had found the vehicles. The knowledge and observations of the other officers may not be imputed to P.O. Valles absent communication to P.O. Valles informing him of those observations or directing him on the basis of those observations. See People v. Brnja, 50 N.Y.2d at 373, n. 4. Where the arresting officer does not receive and rely upon any communications or radio transmissions from fellow officers, there can be no imputing of knowledge sufficient to establish probable cause or reasonable suspicion. -18- See People v. Ketcham, 93 N.Y.2d 416,419 (1999); see, also, People v. Wilkinson, 5 A.D.3d 512 (2d Dept. 2004). Here, the only communication to P.O. Valles was the initial radio run of the 911 operator based on the anonymous tip. A. 551, 569. Thus, the information relayed from the anonymous tip was the only information relied upon P.O. Valles in seizing defendants. A. 497. The record is abolutely clear -P.O. Valles had observed nothing illegal or suspicious occurring with the black Mustang. He testified with certainty that he had not observed any guns or contraband in the Mustang prior to his cutting it off, drawing his pistol, pointing it at the vehicle's occupants, and directing defendant DiSalvo to emerge from the vehicle. A. 548-549; 560-561). The only information P.O. Valles observed was the non-criminal detail of the new Mustang in the general area and the license plate number transmitted in the initial radio run. A. 97. Nowhere in P.O. Valles's record testimony does he provide any "specific" and "articulable" facts which might have prompted him to believe that the defendants might have committed a felony or misdemeanor in his presence. See Terry v. Ohio, 392 U.S. 1 (1968). There is no testimony from P.O. Valles that the Mustang and its occupants had attempted to flee. Indeed, P.O. Valles testified that he observed the Mustang turning onto 31st Street and then immediately cut in front -19- of it to seize it without any attempt to follow it for the purpose of investigation, and without any attempt at an inquiry (A. 497-501, 530-533). Moreover, as noted above, none of the officers who responded to the scene saw a stitch of suspicious behavior. The record supports that Officer Bauso testified that he had not seen any gun or illegal activity as he encountered the Mustang (A. 317 -318), and that the Mustang had not made any attempt to flee. A. 326. In Moore, this Court paid respect to its long- standing rule to the effect that "' . . . [ w ]e have frequently rejected the notion that behavior which is susceptible of innocent as well as culpable interpretation, will constitute probable cause. It is equally true that innocuous behavior alone will not generate a founded or reasonable suspicion that a crime is at hand' (DeBour, 40 N.Y.2d at 216)." 6 N.Y.3d at 501. The People's Argument that Aguilar-Spinelli Analysis Should Govern the Reasonable Suspicion Determination In This Case In People v. Moore and People v. William II, this Court established a very workable, understandable, bright-line rule to govern the reasonable suspicion analysis when an anonymous tipster makes a 911 call reporting criminal activity. According to this Court's unambiguous declaration, "[a]n anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive -20- information - such as information suggestive of criminal behavior - so that the police can test the reliability of the tip." In the present case, the anonymous tip unquestionably lacked any "predictive information" that might have allowed the police an opportunity to verify the accuracy of the anonymous 911 call. We respectfully submit that the alternative argument that they now posit is not only confusing, but wrong, and that it should be summarily rejected. The People contend that the Moore/William II requirement of predictive information can be ignored or somehow waived in this case because the information provided by the anonymous tipster to the 911 operator supposedly satisfied the two- prong reliability test established by Aguilar-Spinelli. In reality, as we pointed out in our original brief (see pp. 23-25), neither prong of the Aguilar-Spinelli test was satisfied here. More importantly, the two-prong test of Aguilar-Spinelli really has nothing at all to do with the reasonable suspicion issue presented by this case. That is because the two-prong Aguilar-Spinelli standard is normally used to determine whether a known confidential informant can provide the necessary probable cause - not reasonable suspicion - to support the issuance of a search warrant, or to uphold a warrantless arrest. As a general rule, we believe that an unknown, anonymous 911 tipster, who is inherently suspect, can never satisfy the Aguilar-Spinelli component -21- requiring the People to demonstrate that the informant is himself personally reliable. The second prong of the equation, focusing on the basis of the informant's know ledge, cannot be satisfied either. The caller supplied nothing which would lead the police to believe that he knew the suspects or that he had inside knowledge of their criminal activity. It is just that simple. In any event, the Appellate Division in the present case correctly recognized that the Aguilar-Spinelli calculus had nothing at all to do with the reasonable suspicion determination that had to be made herein, and had correctly rejected Aguilar-Spinelli analysis as the governing rule. A. 621. Yet, even if we were to consider the use of Aguilar-Spinelli analysis, plain common sense tells us that, contrary to the People's argument, the result would not be any different here. The so-called "first prong" of Aguilar-Spinelli consideration focuses exclusively on the credibility and reliability of the informant. In the present case, the anonymous 911 tipster's veracity could not be established, standing alone, because he had no track record, and because he was not a "citizen-informant" who had identified himself to the police. See, e.g., See People v. Parris, 83 N.Y.2d 342, 350 (1994) ("an identified citizen informant is presumed to be personally reliable" [emphasis added]); People v. Hetrick, 80 N.Y.2d 344,349 (1992) (" ... because Katy was an identified citizen informant, and not an unnamed informant, there was a 'built -22- in' basis for crediting her reliability" [emphasis added]); People v. Hicks, 38 N.Y.2d 90, 93-94 (1975). Because the informant here was anonymous, his veracity remained fundamentally suspect throughout. That means that the first prong of the Aguilar- Spinelli test, requiring a finding that the informant was himself reliable, could never be satisfied here. The Supreme Court's Ruling in Alabama v. White In Florida v. J.L., the Supreme Court placed heavy reliance on its earlier decision in Alabama v. White, 496 U.S. 325 (1990). We believe that Alabama v. White provides a useful counterpoint to the case at bar, and is quite instructive. By the time that Alabama v. White was decided in 1990, the Supreme Court had already declared in Illinois v. Gates, 462 U.S. 213 (1983) that, as a matter offederallaw, the previously extant Aguilar-Spinelli test for determining probable cause had been abandoned for the so-called "totality of the circumstances" approach. However, "Gates made clear ... that those factors that had been considered critical under Aguilar and Spinelli- an informant's 'veracity,' 'reliability,' and 'basis ofknowledge" -remain 'highly relevant in determining the value of his report. 462 U.S., at 230." "These factors are also relevant in the reasonable suspicion context, although allowance must be made in applying them for the lesser showing required to meet that standard." 496 U.S. at 328- 329. -23- In Alabama v. White, the police received a telephone call from an anonymous person identifying a specific suspect, stating that one Vanessa White would be leaving 235-C Lynwood Terrace Apartments at a particular time in a brown Plymouth station wagon with the right taillight lens broken, and that she would be going to Dobey's Motel, and that she would be in possession of an ounce of cocaine that she would be carrying in a brown attache case. Police responded to the Lynwood Terrace Apartments, where they saw a brown Plymouth with a broken rear taillight. Shortly thereafter, they observed Vanessa White leave the building and enter the vehicle. She drove away, and took the most direct route, which included a number of turns, towards Dobey's Motel. The police followed, and just short ofDobey's Motel, she was pulled over by them. Subsequently, the woman gave the police permission to search a brown attache case that was in the vehicle, revealing the presence of marijuana and, upon further search at the police station, a quantity of cocaine. The Supreme Court upheld the search in Alabama v. White, but declared that the case had presented a "close" question. 496 U.S. at 332; see, also, Florida v. J.L., 529 U.S. at 271. Critical to the Court's decision to deny suppression was the "caller's ability to predict ... [the defendant's]jitture behavior": " ... the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third -24- parties ordinarily not easily predicted. [Citation omitted]. The fact that the officers found a car precisely matching the caller's description in front of the 235 building in an example of the former. Anyone could have 'predicted' that fact because it was a condition presumably existing at the time of the call. What was important was the caller's ability to predict ... [the defendant's] future behavior, because it demonstrated inside information - a special familiarity with ... [the defendant's] affairs. The general public would have had no way of knowing that ... [the defendant] would shortly leave the building, get in the described car, and drive the most direct route to Dobey's Motel. Because only a small number of people are generally privy to an individual's itinerary, it is reasonable for police to believe that a person with access to such information is also likely to have access to reliable information about that individual's illegal activities. See ibid. When significant aspects of the caller's predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop." 496 U.S. at 332 (emphasis in original and added). In Florida v. J.L., the Court, in discussing its holding in Alabama v. White, observed that " ... the tip in the instant case lacked the moderate indicia of reliability present in White and essential to the Court's decision in that case. The anonymous call concerning J .L. provided no predictive information and therefore left the police without means to test athe informant's knowledge or credibility. We respectfully submit that same is to be said about the 911 tip in the instant -25- case. The tip here, unlike the tip in White, did not state that the defendants would be doing anything at all in relation to a criminal scheme. For that reason, in the face of a deficit of any predictive information, the 911 caller's tip failed to establish a reasonable suspicion that defendants were armed. The gunpoint seizure of defendants vehicle was, therefore, unconstitutional, since reasonable suspicion for the seizure and defendants and their vehicle was totally lacking. The People's Flawed Legal Analysis In focusing on a snippet of the language contained in Florida v. J.L., 529 U.S. at 271, supra, [the informant] "neither explained how we knew about the gun nor supplied any basis for believing he had inside information aboutJ.L.," the People have ignored the larger holding of the Supreme Court in that case. The Florida v. J.L. Court found that predictive information supplied by the tipster is essential to provide the police with the means to test the informant's knowledge or credibility. Ibid. at 271. The People, by consistently pinpointing the phrase "how he knew about the gun," then commit error by basing their entire argument on the notion that the caller's purported personal observation is congruent with that phrase. By that proposition, the People assert that a showing of the caller's reliability can miraculously be satisfied. -26- The people's argument here is completely a matter of semantics and does not survive careful scrutiny. Simply put, the flaw in the People's analysis is that they are attempting to conflate the anonymous caller's personal observation with an automatic satisfaction of a showing of his reliability- "how he knew about the gun." As demonstrated above, this analysis was rejected in United States v. Freeman, supra, and People v. Braun, supra, absent the anonymous tip providing the police with information predictive of the suspect's future criminal behavior. Further, the People here are attempting to achieve a complete legal hat trick in claiming that an anonymous caller can, by simply stating he saw a gun, not only establish his credibility, but that he could also thereby establish his basis of knowledge and somehow corroborate his own tip independent of police observation of the suspect's predicted movements supplied by the tipster. The People's Failure to Address Point II of Appellant's Brief Recently, in People v. Garcia, 20 N.Y.2d 317 (2012), this Court made it clear that whether a police-initiated stop of a citizen happens on a city street, or in a vehicle and traffic stip, the graduated framework set forth in People v. DeBour, supra, and People v. Hollman, 79 N.Y.2d 181 (1992), necessarily must be evaluated in assessing -27- the constitutionality of the encounter. That the People have not answered the defendants' argument set forth in Point II of their brief, which speaks of the governing rules of DeBour and Hollman, is a clear indication that P.O. Valles's seizure was indeed violative of defendants' state and federal constitutional rights. U.S. Const. Amend. 4; N.Y. Const. Article I. Sec. 12. First, in footnote 15 of the People's brief, at p. 27, the People inappropriately attempt to justify the Level3 gun-point seizure that occurred in this case on events that occurred after the seizure took place. However, a reasonable suspicion is required before the defendants were stopped and ordered out of the black Mustang. See Terry v. Ohio, 392 U.S. at 20, supra. Still, in the People's brief at footnote 15, they state, "when defendant exited the vehicle, a gun was clearly visible in his waistband ... under these circumstances, the police were ... justified in intially drawing their guns .... " The People thus ignore the long-established rule that the fruits of an illegal search cannot be used to justify the excessiveness of the same search. See Wong Sun v. United States, 371 U.S. 471 (1963). The items discovered after the police were already engaged in a full-blown search and seizure cannot establish a reasonable suspicion ab initio. Not only do the People ignore defendants' argument that the level III stop in this case required a reasonable suspicion under DeBour, but the People also ignore that -28- P.O. Valles failed to exercise his right to make a common law inquiry at some appropriate point in time, perhaps when the Mustang was stopped at a red light. In this regard, the People seek to create a false dichotomy between taking no action or engaging in a level III gunpoint seizure. See Respondent's Brief, pp. 47-48. In truth, defendants have not suggested that the police do nothing, as the People would have this Court believe. Defendants simply put forth that instead of engaging immediately in such an intrusive and provocative seizure, on the basis of the very minimal information known to P.O. Valles, he could have and should have attempted a level I or level II inquiry. See People v. Ocasio, 984-985, supra. Or, he could have discreetly followed the Mustang in order to obtain some evidence that corroborated the anonymous tip. What P.O. Valles could not do, consistent with the requirements of the federal and state constitutions, was to engage in a gun-point seizure of the black Mustang and its occupants on the basis of an anonymous tip without any predictive information, and with virtually no corroborative information of any sort. In the end, what this Court should find is that what occurred here is precisely what the law should protect against. DeBour, 40 N.Y.2d at 223 ("The security and constitutionally guaranteed rights of our citizenry would be severely eroded if we were to tolerate this type of police action predicated on no more than an anonymous tip.") -29- Defendants' Reply Concerning CPL § 470.15 (1) In response to the defendants' Point III, the People claim that there is no violation ofCPL § 470.15 (1), where the Appellate Division affirmed the defendants' convictions based on the legal standard of reasonable suspicion. We disagree. We submit that the People, here, are putting the cart before the horse. Obviously, the application of the probable cause or reasonable suspicion standards must be measured by some governing lawful precedent. For example, in this case was argued that the standards here was reached under the analysis of the Aguilar-Spinelli test or under the analysis of the predictive information requirement of Florida v. J.L. and People v. Moore. A court does not issue a decision without citing the supporting case law that it relied upon. Here, the People fail to acknowledge that the standard cannot be reached without the governing lawful precedent. 3 Appellants' note that the nisi prius court's sole purpose for upholding the judgment of conviction herein was that a reasonable suspicion could be reached by the application of the Aguilar-Spinelli test, rather than by the application of the predictive information requirement of Florida v. J.L. See A. 194. 3 The People's sole basis for reargument of the suppression decision was that the trial court had misapplied the governing law. A. 127. -30- Florida v. J.L. was the precedent on which the suppression court relied in its original order granting suppression. In the February 22, 2010 order the suppression court held that there was no predictive information in the anonymous tip to supply the police with the means to test the caller's reliability. See 118-119. Upon reargument, this was the same theory the lower court reversed and rejected in overruling suppression. See Justice Holder's June 18, 2010 order. Instead, the nisi prius court had found that the Aguilar-Spinelli test was the governing precedent. On appeal, the Appellate Division then rejected the nisi prius court's reliance upon the Aguilar- Spinelli test and affirmed the appellants' conviction on a new alternative ground under the analysis found in People v. Moss, supra, and People v. Jeffrey, supra- that the caller's "contemporaneous observation" of "conduct that was not concealed" had bolstered his reliability and therefore the police officer had acted with reasonable suspicion. This new analysis under Moss and Jeffrey had not been raised by the People at the nisi prius court or on appeal to the Appellate Division. Under the rule of CPL § 470.15 (1) and (2), when the Appellate Division rejected the Aguilar-Spinelli test, the suppression court's sole basis for affirming appellants' judgments of conviction, it should have then, at that point, either reversed appellant's convictions or examined the rule under the analysis of Florida v. J.L., which the suppression court had adversely overruled. We respectfully submit that the -31- Appellate Division went beyond its jurisdiction when it ruled on an alternative ground that the suppression court had not considered without examining the predictive information analysis of Florida v. J.L. CONCLUSION FORALLOFTHEABOVE-STATEDREASONS, THIS COURT SHOULD REVERSE THE ORDER OF THE APPELLATE DIVISION, GRANT SUPPRESSION, AND DISMISS THE INDICTMENT HEREIN. Dated: New York, NY May 5, 2014 -32- Respectfully submitted, j L f. !;. ,-IL,v--~ STEVEN R. KART:-G~, ESQ. Attorney for Defendants~ Appellants Costandino Argyris and John A. DiSalvo 233 Broadway ~ Suite 2340 New York, NY 10279 (212)732~9600