People v. Costandino Argyris


AD2 order dated October 10, 2012, affirming judgment of conviction. Decision below: 99 AD3d 808, 952 NYS2d 254. Read, J., granted leave July 9, 2013.

ISSUE PRESENTED: Whether the report of an anonymous telephone caller, based on "contemporaneous observation," that the occupants of a certain car had guns, provided reasonable suspicion to stop the car. (Leave was also granted to co-defendant John A. Disalvo.)

Factual Background

In Argyris and DiSalvo, the police stopped defendants’ car based upon a 911 call from an anonymous informant who told the operator that, at a specific location, he had seen a man come out of a building with a gun, get into a black Mustang with four other men, identifying the Mustang by license number, and saw one of the men put a “big gun” in the back of the car. He described the men. The informant then gave specific directions as to where the car was headed. He refused to give his name or telephone number. A few minutes later, several officers in patrol cars received a radio run with the 911 information. About 15 minutes after the 911 call was placed, the Mustang was spotted. After verifying that the license plate matched, officers directed the Mustang to pull over, but the driver refused. Officers cut off the car and directed the men to get out. As the men got out, the officers frisked them, recovering a gun from DiSalvo, and a bulletproof vest and a switchblade from Argyris, and another handgun from under the driver’s seat. In response to defendants’ motion to suppress, the trial court found that, since an anonymous tip can provide probable cause under Aguilar-Spinelli, it may also be reliable enough to create reasonable suspicion. The court determined that, because the 911 caller had provided an accurate description of the Mustang, and the location of the men and the car, his report established his credibility and thereby met the veracity prong of the Aguilar-Spinelli test. The caller’s statements also demonstrated the basis of the caller’s knowledge, in satisfaction of the basis-of-knowledge prong of the Aguilar-Spinelli test, because the caller declared that he had personally seen the occupants of the Mustang place a large gun therein. Defendants pleaded guilty and appealed.


In Johnson, too, the police received an anonymous 911 call. The caller stated that she believed that the driver of a blue BMW with a particular license plate was sick or intoxicated at a given location near the border between Yates and Ontario Counties. A deputy in a marked patrol car saw the BMW, followed it, and, after a short distance, observed the car make a “hasty” turn, activating the turn signal at the last moment and turning widely, briefly entering the wrong lane before correcting. The deputy activated his lights and pulled out behind the BMW. The deputy pulled over the driver on suspicion that he was driving while intoxicated. The deputy directed the driver out of the car; he had glassy eyes and smelled strongly of alcohol. After failing field sobriety tests, he was given a breathylizer test which revealed nearly twice the legal limit of alcohol. In response to a motion to suppress, the trial court found that the officer had lawfully followed and “close[d] in” on defendant’s car, and the wide turn was justification to stop and investigate a possible DWI. The defendant pleaded guilty and appealed to County Court, which affirmed, finding that  County Court determined that the 911 caller’s tip had given the deputy reasonable suspicion that defendant had been driving while intoxicated, thereby authorizing him to stop defendant’s car. Specifically, the court decided that, because the tip had accurately identified defendant’s car and approximate location, it was reliable enough to establish reasonable suspicion, especially when coupled with the deputy’s personal observation of defendant committing a traffic violation.



What rule applies for determining whether reasonable suspicion applies in cases of an anonymous tip?



A four-judge majority of the Court of Appeals affirmed the convictions of Argyris and DiSalvo, and reversed in Johnson, but differed on the test to be applied in reaching that result. Judges Smith and Pigott would have applied the Illinois v. Gates totality of the circumstances test when assessing whether anything less than probable cause exists. Judges Abdus-Salaam and Graffeo would have applied the Aguilar-Spinelli test. All four agreed that, in Argyris and DeSalvo the anonymous informant’s information as verified by the officers, was sufficient to establish reliability and basis of knowledge. In Johnson, the reliability was not established, because the “caller’s cursory allegation that the driver of the car was either sick or intoxicated, without more, did not supply the sheriff’s deputy who stopped the car with reasonable suspicion that defendant was driving while intoxicated. Both the Smith and Abdus-Salaam opinions found reasonable suspicion despite the fact that the anonymous tip contained no “predictive information,” a seemingly necessary predicate required by both People v. Moore, 6 N.Y.3d 496 (2006), and Florida v. J.L., 529 U.S. 266 (2000).


Judge Read, citing Moore, would have held that the anonymous tip in Argyris and DiSalvo was insufficient to supply reasonable suspicion, because it did not contain “predictive information” that would confirm its reliability. Since the tip in Argyris and DiSalvo did not contain any predictive information, she would have reversed. See, Moore, 6 N.Y.3d at 499 (“An anonymous tip cannot provide reasonable suspicion to justify a seizure, except where that tip contains predictive information—such as information suggestive of criminal behavior—so that the police can test the reliability of the tip”).


Judges Rivera and Lippman would also have reversed in Argyris and DiSalvo, faulting Judge Abdus-Salaam for “embracing a modified version” of Aguilar-Spinelli, calling it “Aguilar-Spinelli lite.” Judge Rivera writes that, had Judge Abdus-Salaam properly applied Aguilar-Spinelli, she might have joined her opinion, but she did not. 


CAL Observes:

It is unclear what rule applies when reasonable suspicion is based upon an anonymous tip. The Court’s split is most unusual, and likely to change, since Graffeo (part of the Abdus-Salaam concurrence) is no longer on the Court, and Smith will be departing in January. Since the majority did not expressly reject Moore, and a majority of the new Court may embrace Aguilar-Spinelli when it comes to a finding of reasonable suspicion, we should consider advocating for a rule that includes both standards.