Thursday, April 05, 2007

Telephone Informant Who Gives Her Name and Phone Number to the Police Is ... er, Not "Anonymous"

United States v. Elmore, Docket No. 05-1734-cr(L) (2d Cir. Mar. 29, 2007) (Pooler, Raggi, Sand): This case makes me want to practice in the District of Connecticut. Here, the district court ruled that a Terry stop of the defendant's vehicle (resulting in the subsequent recovery of a firearm) was not supported by reasonable suspicion because the informant who supplied the tip leading to the stop of the car was (1) "anonymous" and (2) had not given sufficient "predictive information" to justify the stop under cases such as Florida v. J.L., 529 U.S. 266 (2000). The district court categorized the informant as anonymous even though she called a police detective and gave him (1) her full name ("Dorothy Mazza") (2) cell phone number, and (3) home phone. Op. 3. But while the detective was able to call the informant back on the cell phone number she provided (thus verifying that bit of information), he did not do much else to confirm her identity. He did not, for instance, meet with her personally, call the home number, check phone company records to verify her identity, or "quiz[] her on her address or date of birth." Op. 16. Moreover, Mazza refused to meet in person with the detective because "she was afraid of what would happen to her if she was seen working with the police." Op. 4.

On these facts, the district court concluded that "because the police did not do enough to confirm Mazza's identity and 'therefore [the detective] did not really know with whom he was speaking,' she should be treated as an anonymous informant." Op. 7. And because the informant did not provide the sort of predictive information required by JL to justify a Terry stop based on a tip from an anonymous informant, the court suppressed the gun found in the defendant's car.

Predictably, the Circuit reversed, finding that Mazza should not have been categorized as an anonymous informant of the JL-variety (i.e., a totally anonymous caller who supplies a tip but refuses to disclose any information about his or her identity). The Circuit explained that "informants do not all fall into neat categories of known or anonymous. Instead, it is useful to think of known reliability and corroboration as a sliding scale." Op. 13 (emphasis in original). And because the informant here was closer to the known-informant end of the spectrum than the anonymous-informant end, less corroboration was required to justify a Terry stop based on her tip. As the Circuit explains, "Mazza gave the police enough information about herself to allow them to identify her and track her down later to hold her accountable if her tip proved false. She gave them her name, her relationship with the defendant, and two telephone numbers at which she could be contacted." Op. 15.


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