United States v. Freeman, 110713 FED2, 12-2233-cr

Docket Nº:12-2233-cr
Opinion Judge:POOLER, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Appellee, v. JOSEPH FREEMAN, Defendant-Appellant.
Attorney:YUANCHUNG LEE, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant. RACHEL MAIMIN, Assistant United States Attorney, (Preet Bharara, United States Attorney for the Southern District of New York, Justin S. Weddle, Assistant United States Attorney, on the brief) New York, NY,...
Judge Panel:Before: POOLER, WESLEY, and DRONEY, Circuit Judges. WESLEY, Circuit Judge, dissenting:
Case Date:November 07, 2013
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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UNITED STATES OF AMERICA, Appellee,

v.

JOSEPH FREEMAN, Defendant-Appellant.

No. 12-2233-cr

United States Court of Appeals, Second Circuit

November 7, 2013

Argued: April 16, 2013

Joseph Freeman appeals from a judgment of the United States District Court for the Southern District of New York (Paul A. Crotty, J.) convicting him of one count of possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), after a bench trial on stipulated facts. Freeman moved to suppress the firearm discovered by the police on the grounds that he was stopped without reasonable suspicion, as the stop was primarily based upon a pair of anonymous 911 calls. The district court denied the motion to suppress and proceeded to trial on stipulated facts. We hold that there was not reasonable suspicion to support the stop of Freeman and vacate Freeman's conviction. Judge Wesley concurs in part and dissents in part in a separate opinion.

YUANCHUNG LEE, Federal Defenders of New York, Inc., New York, NY, for Defendant-Appellant.

RACHEL MAIMIN, Assistant United States Attorney, (Preet Bharara, United States Attorney for the Southern District of New York, Justin S. Weddle, Assistant United States Attorney, on the brief) New York, NY, for Appellee.

Before: POOLER, WESLEY, and DRONEY, Circuit Judges.

POOLER, Circuit Judge:

Joseph Freeman appeals from a judgment of the United States District Court for the Southern District of New York (Paul A. Crotty, J.) convicting him of one count of possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1), following a bench trial on stipulated facts. Freeman moved to suppress the firearm discovered by the police on the grounds that he was stopped without reasonable suspicion, as the stop was primarily based upon a pair of anonymous 911 calls from the same caller. The district court denied the motion to suppress and proceeded to trial on stipulated facts. We hold that there was not reasonable suspicion to support the stop of Freeman and vacate his conviction. The suppression decision is reversed, and the case is remanded to the district court.

BACKGROUND

I.

On April 27, 2011, at approximately 1:40 a.m., the New York City Police Department ("NYPD") responded to two 911 calls from the same caller reporting that a man matching a certain description had a gun. The caller refused to identify herself, and the 911 operator could not re-contact her on multiple attempts. The 911 calls were recorded, and the number was identified as coming from a cell phone, but the caller was never identified. Her identity remains unknown. The caller told the 911 operator that a Hispanic male, wearing a black hat and a white t-shirt had a gun, near the Chase Bank on East Gun Hill Road in the Bronx, New York. The radio dispatch received by the police officers indicated that "a person is possibly armed with a firearm" and was "arguing with a female" near a particular intersection in the vicinity of the Chase Bank. NYPD Officers Joseph Walsh and Ryan Conroy responded to the call from "seven to eight" blocks away. While en route to the location, over the police radio, which was audible to Walsh and Conroy, another officer repeatedly asked the dispatcher to verify whether the 911 caller "actually saw a firearm." Each time, the dispatcher was unable to confirm if that was the case. Walsh and Conroy arrived at the scene within minutes of the first call: the first call came into the 911 system at 1:36 a.m., the updated description from the second call was received at 1:38 a.m., and Freeman was stopped at 1:40 a.m. 911 Incident Record, Exhibit E, Declaration of Sarah Baumgartel, United States v. Freeman, No. 11-cr-567, 2011 WL5419739 (S.D.N.Y. Nov. 8, 2011), ECF No. 15. As they approached the location, Walsh heard another radio dispatch indicating that the suspect was actually a "male black" wearing a white du-rag, black hat, and a long white t-shirt. The dispatcher indicated that the original caller had called back and stated that the male was "walking towards" and then "standing on the corner of Burke [Avenue]."

From their unmarked police vehicle, Walsh and Conroy canvassed the area on East Gun Hill Road between Burke Avenue and Young Avenue. The officers observed Joseph Freeman walking eastbound on East Gun Hill Road and observed that he fit the most recent reported description. The officers drove past Freeman, stopped their unmarked car along the side of the road, and waited for Freeman to approach their car. As Freeman walked past the vehicle, Conroy got out of the passenger side and approached him. Conroy attempted to speak to Freeman, but Freeman did not stop walking, so Conroy placed his hand on Freeman's elbow. Freeman "shrugged [Conroy] off" and kept walking. Walsh, who had since exited the car, also placed his hand on Freeman's elbow, and Freeman again "shrugged [Walsh] off and kept walking." By the officers' own admission, Freeman "never ran from [the officers] that night." After Freeman continued walking upon being touched by Walsh, Walsh grabbed him around the waist in what the government now describes as a "bear hug." After Walsh grabbed Freeman around the waist, Freeman never broke away. He attempted to continue walking, but Walsh tripped him to the ground. After a short struggle, and with the assistance of NYPD Officer Humberto Morales, who arrived on scene with his partner after Walsh tripped Freeman, the police handcuffed Freeman and removed a gun from his waistband.

II.

On August 17, 2011, Freeman moved in district court to suppress the gun discovered on the ground that the police lacked reasonable suspicion to stop him. The district court concluded that the police stop was supported by reasonable suspicion and denied the motion to suppress. To preserve his suppression argument for appeal, Freeman waived his right to trial by jury and agreed to a bench trial on stipulated facts. On December 13, 2011, after Freeman stipulated to the elements of the offense charged in the indictment, the district court found him guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Freeman now appeals.

DISCUSSION

In an appeal from a district court's ruling on a motion to suppress, we review legal conclusions de novo and findings of fact for clear error. United States v. Ferguson, 702 F.3d 89, 93 (2d Cir. 2012). Mixed questions of law and fact—including the determination as to reasonable suspicion—are reviewed de novo. United States v. Lucky, 569 F.3d 101, 105-06 (2d Cir. 2009). This Court reviews the underlying "findings of historical fact only for clear error and . . . give[s] due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Ornelas v. United States, 517 U.S. 690, 699 (1996).

I.

Under the long-established rule of Terry v. Ohio, 392 U.S. 1 (1968), police may only stop someone when they have "reasonable suspicion supported by articulable facts that criminal activity may be afoot." United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks omitted). Reasonable suspicion must be "based on specific and articulable facts" and not on "inchoate suspicion or mere hunch." United States v. Bayless, 201 F.3d 116, 132-33 (2d Cir. 2000) (internal quotation marks omitted). This Court will "look at the totality of the circumstances of each case to see whether the detaining officer has a particularized and objective basis for suspecting legal wrongdoing." United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasis added) (internal quotation marks and citation omitted). While we evaluate this totality of the circumstances "through the eyes of a reasonable and cautious police officer on the scene, guided by his experience and training, " we do "not merely defer to the police officer's judgment." Bayless, 201 F.3d at 133 (internal quotation marks omitted). Moreover, such a stop must be "justified at its inception." Terry, 392 U.S. at 20. Any events that occur after a stop is effectuated cannot contribute to the analysis of whether there was reasonable suspicion to warrant the stop in the first instance.

II.

A.

As an initial matter, we must first determine when exactly the police seized Freeman, in order to assess whether there was reasonable suspicion for the stop "at its inception." Terry, 392 U.S. at 20. The government urges this Court to conclude that Freeman was not seized until the police had placed handcuffs on him. This argument cannot stand. A seizure triggering the protection of the Fourth Amendment occurs once an officer has "by means of physical force or show of authority, . . . in some way restrained the liberty of a citizen." Id. at 19 n.16. The government, perhaps attempting to minimize the restraint placed upon Freeman, now refers to Walsh grabbing Freeman around the waist as placing him in a "bear hug." This ursine description does nothing to lessen the restraint placed upon Freeman. The contention that Walsh grabbing Freeman around the waist in a "bear hug" was not "in some way restrain[ing]" his liberty is simply wrong. Though there was a brief struggle in bringing Freeman to the ground, Freeman never broke away once Walsh had placed his arms around Freeman's waist. Freeman was physically restrained as soon as Walsh grabbed him in a "bear hug, " and thus the justification for the stop must have preceded Walsh's grabbing of Freeman. See id. at 20.

The government likely seeks to push the moment of the seizure forward in time in order to reap the benefits of the decisions in California v. Hodari D., 499 U.S. 621 (1991), United States v. Muhammad, 463 F.3d 115 (2d Cir. 2006), and United States v. Swindle, 407 F.3d 562 (2d Cir. 2005). In each of these...

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