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New York Court of Appeals Hears Major Hearsay Challenge

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In People v. Johnson, a Deputy Sheriff armed with a 911 call describing “a sick or intoxicated motorist” stopped the Appellant for a “wide right hand turn” well outside of his jurisdictional limit.  At a Mapp hearing (Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 [1961]) to determine whether there existed sufficient probable cause for the stop of the vehicle, the Deputy admitted that he did not know the identity of the caller or the basis upon which the allegation was made.  Since the Deputy was without jurisdiction to affect a stop for a traffic violation, the 911 call was essential.  The Town Court denied the motion to suppress and the defendant was ultimately convicted.  Following a loss in the County Court the motorist filed an application for Leave to Appeal to the Court of Appeals.  While the application was pending, the United States Supreme Court decided Navarette v. California, – US – , 134 S.Ct. 1683, 188 L.Ed.2d 680 [2014] which, in a decision by Justice Thomas, found anonymous hearsay to be sufficient for the stop of a motor vehicle.

On October 21st, New York’s highest Court, the Court of Appeals, heard arguments in People v. Johnson, People v. Argyris and People v. DiSalvo.  Common to all three cases is the standard under which anonymous hearsay may be utilized to stop a motor vehicle.

In determining whether probable cause exists, New York is one of the few remaining jurisdictions that continues to apply the Aguilar-Spinelli rule (see, Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 [1964]; Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 [1969]).  In short, this rule mandates that the proponent of the hearsay establish the reliability of the declarant as well as the declarant’s basis.  This, of course, runs contrary to the so-called “Totality of the Circumstances” rule that the High Court implemented in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 [1983].  Gates permits the proponent of the hearsay to overcome a void or shortfall in either reliability or basis by an abundance of information in one category or the other.

In attempting to turn back the State’s contention that New York should abandon the Aguilar-Spinelli rule and engage in an across the board implementation of Illinois v. Gates, the Appellant turned to Justice Scalia’s scathing dissent in Navarette noting, for instance, that “everyone in the world who saw the car would have that knowledge, and anyone who wanted the car stopped would have to provide that information” (Navarette, at S.Ct. 1693).

On behalf of Appellant Johnson, I argued that the Aguilar-Spinelli provides a powerful “bright line”rule.   The precepts embodied in Aguilar-Spinelli are firmly rooted in the practical assessment that must be conducted in any situation.  Is the third party worthy of belief?  Was the third party in a position to know what he or she claimed to know? In sum and substance, Aguilar-Spinelli informs police officers of what allegations they must include and provides an identical yardstick for magistrates in interpreting the same.

In what is perhaps our strongest argument, we argued that a dramatic shift in the standard is unwarranted under the facts of the case inasmuch as the Johnson stop fails under either standard.  In sum and substance, proper application of the “Totality of the Circumstances” test requires that the anonymous tip contain a predictive element tending toward criminality (see, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 [2000]).

Ironically, the strangest twist in Johnson is that the tip was never anonymous!  Five days after the Appellant’s arrest the Deputy secured a supporting deposition from the 911 caller whom the State did not call or identify at the Mapp hearing which was held some five months later!

A decision is expected in early December.

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