250 F.3d 130 (2nd Cir. 2001), 00-1628, United States v Colon

Docket Nº:Docket No. 00-1628
Citation:250 F.3d 130
Party Name:UNITED STATES OF AMERICA, APPELLEE, v. WILLIAM COLON, DEFENDANT-APPELLANT.
Case Date:May 14, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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250 F.3d 130 (2nd Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE,

v.

WILLIAM COLON, DEFENDANT-APPELLANT.

Docket No. 00-1628

United States Court of Appeals, Second Circuit

May 14, 2001

        Argued March 9, 2001

        Defendant William Colon appeals from a judgment of conviction after bench trial in the United States District Court for the Southern District of New York (Kaplan, J.). He challenges the denial of his motion to suppress physical evidence and statements recovered during a stop and frisk. The sole question on appeal is whether caller information given to a civilian 911 operator working for the New York Police Department but not conveyed to the dispatching or arresting officer can be imputed to the arresting officer under the collective knowledge doctrine as a basis for reasonable suspicion to justify the search. For the reasons discussed below, Colon's conviction is vacated and the case is remanded for further proceedings.

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        Leslie C. Brown, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Gary Stein, Assistant United States Attorney, on the brief), for Appellee.

        Mark B. Gombiner, The Legal Aid Society, Federal Defender Division Appeals Bureau, New York, New York, for Defendant-Appellant.

        Before: Jacobs and Calabresi, Circuit Judges, and Arterton, District Judge1

        Arterton, District Judge

        William Colon appeals from a judgment of conviction after bench trial in the United States District Court for the Southern District of New York (Kaplan, J.). He challenges the denial of his motion to suppress physical evidence and statements recovered during a stop and frisk. The sole question on appeal is whether caller information given to a civilian 911 operator working for the New York Police Department but not conveyed to the dispatching or arresting officer can be imputed to the arresting officer under the collective knowledge doctrine as a basis for reasonable suspicion to justify the search. For the reasons discussed below, Colon's conviction is vacated and the case is remanded for further proceedings.

        I. Background

        At 6:12 a.m. on February 6, 2000, a New

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York City 911 operator2 received a call from a woman who stated that she was outside an after- hours club at 1735 Rosedale Avenue in the Bronx and that "there's a guy inside that has a gun, and he hit me over the head with it, okay. It didn't, I'm not bleeding or anything, but he has a gun and he's dangerous, okay?" The caller also stated that "[h]e's male, okay, he's Hispanic but he looks white. He's got a red hat, a red baseball cap and a red leather jacket, okay? . . . I guess he's Hispanic but he looks white. They call him White Boy. That's, he looks white. He's white." When asked if she wanted to leave her name and number, the caller stated "I don't care because he already hit me one time and Officer Alejandro has my report on him. . . . And, but I just don't want him to know that I was the one that called."

        After some confusion about the address, the caller clarified that she was calling from 1735 East 172nd Street, between Noble Avenue and Rosedale Avenue. The caller also stated that she would not be there when the officers arrived because "I don't want him to see me. He's a drug dealer. I don't want to get killed. You understand? . . . And this is the same guy that hit me over the face and I got 15 stitches like three weeks ago." The caller continued: "So they know. The cops know about the incident, so I don't have to give you my name. They know who I would be. You understand? . . . 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." The 911 operator informed her that an officer would be sent. The call lasted six minutes.

        The 911 operator then made an entry into the computer system used to transmit call information to the NYPD dispatcher. The 911 operator's computer entry described the incident as a code "10-10" (a crime in progress) and included the location, a description of the suspect as a male Hispanic wearing a red hat and red leather jacket with the nickname "White Boy," and the facts that the suspect had a firearm and that the tip had come from an anonymous caller on a Sprint Spectrum cell phone, also listing the number.

        The dispatcher then made a radio call for officers to respond to a "man with a gun case" at 1735 East 172nd Street. The dispatcher told the officers in the field that

        It states ah male, Hispanic, in a after-hours spot. His name, it states, um, male Hispanic, name is `White Boy.' He's wearing a red hat with a red leather jacket. It's anonymous. There's no call back at this time. Still waiting for, from the operator. Unit come back.

        The dispatcher then told the field officers that "this call back is a cellphone. No further information."

        Acting on the information provided by the dispatcher, two NYPD officers, Claude Rhone and Sean Smith, proceeded to the club. Inside the club, they observed Colon wearing a red leather jacket and a red baseball hat. Colon was not seen to engage in suspicious activity and there was no evidence that any criminal activity had occurred. Officer Rhone approached Colon, stopped and frisked him, and found a Bryco 9mm semi-automatic pistol in Colon's waistband. Colon was then arrested. He subsequently made a video-taped statement

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in which he acknowledged that he had possessed the gun.

        II. Proceedings below

        Colon moved to suppress the gun and his statement on the ground that the tip from the anonymous caller did not provide the officers with reasonable suspicion to stop and frisk him, under Florida v. J.L., 120 S.Ct. 1375 (2000). In opposition, the government argued that J.L. was distinguishable because here, the 911 operator had additional information that made the anonymous caller sufficiently reliable to establish reasonable suspicion.

        Acknowledging that this was a "close call," the district court denied the motion to suppress because the tip leading to defendant's arrest had sufficient indicia of reliability to establish reasonable suspicion, and unlike the call in J.L., was not "truly anonymous," as the caller "gave information to the police that she believed would have enabled the police to determine her identity and location. . . . 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." United States v. Colon, 111 F.Supp.2d 439, 442 (S.D.N.Y. 2000). The district court also noted that 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," by reference to her recent assault report. Id. In addition, the district court distinguished J.L. in that this call was recorded, thus avoiding the problem of reconstructing the nuances of hurried communications after the fact. Id. at 442-43. Finally, the court observed, "here it is crystal clear that the caller had first hand...

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