BY: David Restrepo
The Second Circuit recently decided United States v. Freeman, which was on appeal from a conviction for gun possession. On appeal, the defendant argued that the police lacked reasonable suspicion to conduct the Terry stop that produced a gun in the defendant’s possession. The Second Circuit reversed the defendant’s conviction, mainly on the ground that the police lacked reasonable suspicion to stop and frisk so that the evidence should have been suppressed.
The interesting part about the case is the court’s in-depth discussion on what constitutes reasonable suspicion. Initially, police responded to a pair of anonymous 911 calls from the same caller. The caller offered a description and location of the defendant, claiming that the defendant had a gun on his person. What makes the court’s decision newsworthy is its analysis of the phone calls and their sufficiency as a basis for reasonable suspicion given that, although they were anonymous, the 911 center recorded the phone number and the caller called twice.
The Second Circuit held that the phone calls were an insufficient basis for reasonable suspicion because the information in the calls could not be corroborated. However, the majority and dissent both discussed an issue raised by Justice Kennedy in his concurrence in Florida v. J.L., 529 U.S. 266 (2000) – whether 911 calls are really anonymous given current police technology. In J.L., the majority held that a mere description in 911 call is not sufficient to establish reasonable suspicion. In his dissent in Freeman, however, Judge Wesley disagreed, suggesting that the Supreme Court should offer “further guidance in this troubling and exceptionally important area of Fourth Amendment jurisprudence.” Whether or not the holding in Freeman is correct, Judge Wesley poses an interesting issue. Given the speed of advancement in technology available to law enforcement, it is an issue that deserves further clarification by the Supreme Court.
David Restrepo, United States v. Freeman – Second Circuit, ABA Media Alerts (Nov. 7, 2013).
United States v. Freeman, No. 12-2233-cr (2d Cir. Nov. 7, 2013).