New York Court of Appeals Reffirms Allegiance to Aguilar-Spinelli

Posted on July 22, 2018 in Uncategorized


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 effect 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 hearsay creates sufficient probable cause, 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).

The Appellant then argued that 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 his strongest argument, the Appellant 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!

On November 25th People v. Johnson, People v. Argyris and People v. DiSalvo were jointly decided. Although the Argyris and DiSalvo were affirmed, the conviction in Johnson was unanimously reversed.

Paramount in the Johnson decision was an extensive concurring decision by associate Judge Abdus-Salaam. In her lengthy concurrence, Judge Abdus-Salaam made two essential points. First, that the Aguilar/Spinelli test and imposed under Article I § 8 of the New York State Constitution provides greater protection against unwarranted and unjustified state seizures. Essential in her discussion is the issue of the malevolent tipster. Breaking strongly with the rationale of Justice Clarence Thomas in Navarette v. California, she finds that the use of an anonymous tip without verification as to the truthfulness of the tipster or the basis of his or her information lays a citizen wide open to this type of interference.

Nor was Judge Abdus-Salaam to be swayed by the fact that in application of the rule New York has strongly placed itself among the minority of states:

"However, while the considered opinions of other jurisdictions often carry significant weight in our evaluation of legal doctrine, I do not find the out-of-state authority cited by the People to be a sufficiently compelling basis on which to cast aside the Aguilar-Spinelli rule. Those out-of-state decisions do not compensate for the absence of proof that the Aguilar-Spinelli rule has intolerably taxed the New York law enforcement community over the decades in which we have applied the rule. And, although it is generally desirable to maintain uniformity with the law of other jurisdictions when doing so does not compromise a significant public policy or legal principle unique to New York . . ."

Accordingly, she strongly endorsed continuation of the abandoned Federal rule in New York.

Key differences among the various judges arose not in application of the rule, but the manner in which it is to be applied. In this regard, Judge Rivera dissenting in Argyris and DiSalvo, found fault in the fact that in her concurrence, Judge Abdus-Salaam denigrated the deed "predictive information" in the tip. Judge Abdus-Salaam found that such entered New York case law solely through dicta. Referring to Judge Abdus-Salaam's decision as "Aguilar-Spinelli lite", she found it excised of the core protective benefits that underlie the original test, and diluting its most salient requirements."

Ironic in Johnson, and perhaps most important to what we do, is that the inability to meet the Aguilar/Spinelli standard drove them to call for adoption of the Federal "totality of the circumstances" test. Not only did this effort fail, but, as noted by Judge Smith in his concurrence, it resulted in expansion to "reasonable suspicion" which, as we all know, is the standard governing the circumstances under which an automobile may be stopped.

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