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Fourth Amendment Searches: Reasonable Suspicion and Anonymous 911 Calls

Published By Stephen Preziosi

Anonymous Tip Sufficient Indicium of Reliability for Reasonable Suspicion

United States of America v. Ibrahim McCants

No. 17-3103

United States Court of Appeals for the Third Circuit

Decided April 5th, 2019

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ISSUE:

Whether an anonymous 911 tip describing a man wearing a red hat with braids beating up a woman and maybe had a gun, provides a sufficient indica of reliability for reasonable suspicion of ongoing criminal activity allowing the police to conduct a search of a man wearing a red hat and braids in the neighborhood.  

HOLDING:

The Court held that the police may conduct brief investigatory stops under Terry v. Ohio,  392 U.S. 1 (1968) if they have reasonable articulable suspicion that criminal activity is afoot.  Such reasonable suspicion requires at least a minimal level of objective justification for making the stop and more than an inchoate and unparticularized suspicion or hunch or criminal activity.

A caller’s anonymous tip bore sufficient indicia of reliability for the Fourth Amendment’s reasonable suspicion because it provided information helpful to investigations.  The Court has identified five factors that indicate reliability for anonymous tips and they are not all required to deem an anonymous tip reliable.  

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FACTS OF THE CASE:

In June of 2015, a woman called 911 to report an ongoing domestic dispute she had been witnessing first hand.  During her call, she described a physical fight between the defendant, Ibrahim McCants, and his girlfriend, stating that he was beating her up really bad, he was wearing a red hat and had braids, and it looked like he had a gun.  She described his appearance, which perfectly matched when the police arrived and engaged with McCants.  They initiated a Terry stop and frisked him because of the nature of the call for service.  During the pat down, they found a loaded handgun and distributable amounts of heroine.  McCants was charged with unlawful possession of a firearm and possession with intent to distribute heroin, and sentenced to 120 months’ imprisonment followed by three years of supervised release. 

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COURT’S ANAYLSIS:

The Court held that a caller’s anonymous tip bore sufficient indicia of reliability for the Fourth Amendment’s reasonable suspicion.  The Fourth Amendment prohibits unreasonable searches and seizures.  Searches require warrants supported by probable cause however, an officer may conduct a brief investigatory stop under Terry v. Ohio, 392 U.S. 1 (1968) if they have reasonable articulable suspicion that criminal activity is afoot.  Reasonable articulable suspicion requires at least a minimum level of objective justification for making the stop and more than an undeveloped and unparticularized suspicion or hunch of criminal activity.  Anonymous tips can provide information helpful to investigations and can create reasonable suspicion of ongoing criminal activity.  The Court has identified five factors that indicate reliability for anonymous tips:

(1) The tip information was relayed from the informant to the officer in a face-to-face interaction such that the officer had an opportunity to appraise the witness’s credibility through observation.

(2) The person providing the tip can be held responsible if her allegations turn out to be fabricated.

(3) The content of the tip is not information that would be available to any observer. 

(4) The person providing the information has recently witnessed the alleged criminal activity.

(5) The tip predicts what will follow, as this provides police the means to test the informant’s knowledge or credibility.

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While the 911 call here did not present all of the reliability factors, this deficiency does not preclude a finding of reasonable suspicion because a tip does not need to bare all of the indicia, nor any particular indicium, to supply reasonable suspicion.  The tip was sufficiently reliable because it met two of the factors: the informant witnessed the alleged criminal and can be held

responsible if the allegations turn out to be fabricated. 

In this case, the caller’s anonymous 911 tip bore sufficient indicia of reliability because the called used the 911 system to report firsthand knowledge of ongoing domestic violence, and the informant gave an accurate description that was quickly confirmed by the police.  This case differs from Florida v J.L., 529 U.S. 266 (2000), which determined that a bare report of an unknown, unaccountable informant who did not explain the bases for their tip lacked sufficient indicia of reliability. 

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Here, the 911 caller gave a firsthand account of ongoing criminal activity, as well as a highly specific and accurate description of the suspect’s location, clothing and hair.  In Navarette, 572 U.S. 399 – 401,the Court determined that an eyewitness’s firsthand knowledge of ongoing criminality lends significant support to the tip’s reliability and a 911 call bolsters the tip’s credibility because the system is able to identify callers therefore safeguarding against false reports. 

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Double Jeopardy Clause and Issue Preclusion: Basic Conspiracy versus RICO Conspiracy

Published By Stephen Preziosi

Double Jeopardy Clause and Issue Preclusion: Basic Conspiracy versus RICO Conspiracy

United States v. Zemlyansky, 908 F.3d 1 (2d Cir. 2018)

United States Court of Appeals for the Second Circuit

Decided: November 5th, 2018

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ISSUE

Whether the issue-preclusion component of the Double Jeopardy Clause prohibits the Government from predicating a Racketeer Influenced and Corrupt Organization Act (RICO) conspiracy charge based on acts from a previous charge on which the defendant was acquitted.    

HOLDING

The Courts held that the issue preclusion component of the Double Jeopardy Clause does not prohibit the Government from using previously acquitted convictions to prove a RICO conspiracy in a second trial when the evidence acquitted was used to prove different, non-precluded conduct.  The Fifth Amendment’s issue-preclusion component of the Double Jeopardy Clause “precludes prosecution of an offense when an issue of ultimate fact or an element essential to conviction has necessarily been determined in favor of the defendant by a valid and final judgment in a prior proceeding. United States v. Cala, 521 F.2d 605, 607–08.  Thus, in order to restrict the use of the earlier acquittals, an essential element of the RICO conspiracy had to have been decided in the defendant’s favor.

The burden is on the defendant in the second case to establish that the issue he seeks to foreclose from litigation was necessarily deiced in his favor by the prior verdict.        

FACTS OF THE CASE

Mikhail Zemlyansky started an investment firm called “Lyons, Ward & Associates” in 2007 which claimed to invest in insurance-settlements he received nearly seven million dollars from investors by guaranteeing an 18% yearly return.  Rather than invest, Zemlyansky embezzled and laundered the money the money.  Zemlyansky paid out small interest payments and issued false account statements in order to carry out the scheme.  Using a model similar to

“Lyons Ward,”  Zemlyansky started “Rockford Funding Group LLP” in 2009

where he garnered about ten million dollars in investments. 

Proceeds were wired to and from shell companies in the United States and overseas. 

Zemlyansky also operated an illegal, high-stakes poker ring. 

Zemlyansky and his co-defender Danilovich – who were not medical professionals – owned and controlled over ten medical profession corporations (P.C.s) that fraudulently billed for millions of dollars under New York’s No-Fault comprehensive Motor  Vehicle Reparations Act, N.Y. Ins. Law § 5101 between the years 2009 and 2012.  Both defendants profited from insurance payments, fee-sharing arrangements and kickbacks for referrals.  Much like the aforementioned schemes, profits were, in part, wired to and from shell companies overseas.

In the first indictment, Zemlyansky, Danilovich and others were charged with nine counts relating to the No-Fault Insurance Organization by a federal grand jury.  The first indictment did not include allegations relating to Lyons Ward or Rockford Group securities fraud scheme, or the Illegal Gambling Ring.  One count of the first indictment charged Zemlyansky with conspiring to participate in the affairs of a RICO enterprise.  The racketeering enterprise was the No-Fault Insurance Organization, and the pattern of racketeering consisted of mail fraud and money laundering.  The first indictment also charged Zemlyansky with eight counts that mirrored the RICO conspiracy’s predicate offenses: On November 13, 2013, the jury acquitted Zemlyansky of the non-RICO conspiracy and substantive counts.  Since the jury was unable to reach a verdict in regard to the RICO conspiracy count, Count One, the District Court declared a mistrial on that count.

After the mistrial, Zemlyansky was indicted again.  The second indictment charged Zemlyansky with conspiring to violate RICO. Like the racketeering charges in the first indictment, the charges encompassed conduct relating to the No‐Fault Insurance Organization, to Lyons Ward, the Rockford Group and the Illegal Gambling Ring.  The second indictment also charged Zemlyansky with five substantive counts relating to Lyons Ward.  

Zemlyansky moved to dismiss Count One and to prevent the Government from offering evidence of his involvement in the No‐Fault Insurance Organization to prove that count. He argued under the issue‐preclusion component of the Double Jeopardy Clause that the Government could not offer such evidence because he had been acquitted of that in the previous trial.  The District Court ultimately granted the motion in part, prohibiting the Government from arguing Zemlyansky was guilty of insurance fraud, while allowing evidence of Mr. Zemlyansky’s involvement in the alleged no‐fault scheme insofar as such conduct went to his alleged guilt on the RICO conspiracy charge.

After a month-long trial, Zemlyansky was convicted of all six counts.  The jury’s decision that Zemlyansky was liable for all five of the RICO conspiracy count’s predicate acts was reflected in the special verdict form.   

COURT’S ANALYSIS

The Courts held that the issue-preclusion component of the Double Jeopardy Clause does not prohibit the Government from using acts on which defendant was previously acquitted to prove a RICO conspiracy in a second trial when the evidence acquitted was used to prove different, non-precluded conduct.  The Double Jeopardy Clause was created to protect individuals from being “twice put in jeopardy of life or limb” “for the same offense.”  U.S. Const. Amend. V. In layman terms, after a defendant is tried and found not guilty of a crime, the defendant cannot be tried or punished for the same offense a second time.

The issue-preclusion component of the Double Jeopardy Clause “precludes prosecution of an offense when an issue of ultimate fact or an element essential to conviction has necessarily been determined in favor of the defendant.   When arguing issue-preclusion in a second case, the burden falls on the defendant to establish that the issue he seeks to foreclose from litigation… was necessarily deemed in his favor by the prior verdict.. 

The Court disagreed with Zemlyansky’s argument because none of the counts on which he was acquitted in the first trial were necessary components of the RICO conspiracy in the second trial.  The evidence used in the second trial proved different, non-precluded conduct and the Government could reuse this evidence to prove Zemlyansky’s guilt in the second trial.

The distinction between basic conspiracies and RICO conspiracy charges makes it clear that the acquittal of basic conspiracies do not compel the conclusion that a jury decided an essential element of a RICO conspiracy in Zemlyansky’s favor.  Contrary to the former, a RICO conspiracy does not require that a defendant knowingly agreed to commit a specific crime.  Rather, it is enough that the defendant knowingly agreed to facilitate “the general criminal objective of a jointly undertaken racketeering scheme,” Yannotti, 541 F.3d at 122 and is the extent of the burden on the government in this respect.  The Court, therefore, faced the question of whether a “rational jury” could have acquitted Zemlyansky in the first trial for similar, non-preclusive reasons.

Upon analyzing the record from the first trial, the Courts determined that a rational jury could have based its acquittal of basic conspiracy on reasons non-essential to proving the later RICO conspiracy.  For one, the first jury could have found a conspiracy by parties other than Zemlyansky to commit insurance-related fraud and agreed to acquit him on that count because he did not “knowingly and intentionally agree to facilitate the particular conspiracy.”  They could have even found that Zemlyansky made a great effort not to agree to facilitate any specific “basic” conspiracies.  Therefore, the second jury was not prohibited from using this element along with others to prove a RICO conspiracy.                      

Cell Site Location Information: Private Parties, Agency, and the Rule in Carpenter

Published By Stephen Preziosi

TitleUnited States of America v. Lawrence D. Adkinson

No. 17-3381

United States Court of Appeals: Seventh Circuit

Decided on February 14th, 2019

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ISSUE:

Whether a company, as a private party, acted as an agent of the police in violation of the Fourth Amendment by providing data to the government that was collected from tower dumps without a search warrant. 

HOLDING:

The Court held that a company, as the private party, was not transformed into an agent of state by furnishing data to government that had been collected from tower dumps without search warrant.  Where the company acted in its own interest to prevent future robberies of its stores and recovery of its property, there is no evidence that it expected benefits from the government.

“A search or seizure by a private party does not implicate the Fourth Amendment

unless the private party is acting as an instrument or agent of the government.”

FACTS OF THE CASE:

Defendant Lawrence Adkinson robbed T-Mobile phone stores in Indiana and Kentucky.  As part of its investigation, T-Mobile conducted tower dumps: it pulled data from cell sites near the stores to identify which phones had connected to them—and thus were close to the crimes.  T-Mobile’s privacy policy allowed T-Mobile to disclose information about its phones’ users to satisfy any applicable legal process or enforceable governmental request or to protect its rights or interests, property or safety or that of others. Law enforcement used the information from T-Mobile to obtain a court order under the Stored Communications Act, 18 U.S.C. § 2703, granting the FBI access to additional cell-site data.

COURT’S ANALYSIS:

The Court held that a company, as the private party, was not transformed into an agent of state by furnishing data to government that had been collected from tower dumps without search warrant.  The Court makes a distinguishes between this case and Carpenter.  In Carpenter, the Supreme Court held that the government may not, without a warrant supported by probable cause, compel a cellular service company to search for and supply the data that its cell sites reveal about a user’s past movements in violation of the Fourth Amendment.  In this case, the record does not show that the government compelled T-Mobile to provide its data. 

The Court agrees that the Fourth Amendment was not violated for three primary reasons:

(1) T-Mobile is a private party and Adkinson has not shown that it was the government’s agent.  In order to show agency, defendant must establish that T-Mobile agreed to act on the government’s behalf and to be subject to its control or that the government ratified T-Mobile’s conduct as its own. T-Mobile acted in its own interest to prevent future robberies of its stores and recovery of its property, there is no evidence that it expected benefits from the government.

(2) Adkinson consented to T-Mobile collecting and sharing his cell-site information.  As a condition of using a phone serviced by T-Mobile, Adkinson agreed to T-Mobile’s policy that T-Mobile could disclose information when reasonably necessary to protect its rights, interests, property, or safety, or that of others. And in accordance with its policy, T-Mobile shared information with law enforcement after one of its stores was robbed at gunpoint.

(3) Carpenter did not invalidate warrantless tower dumps, which identified phones near one location, at one time because the Supreme Court declined to rule that these dumps were searches requiring warrants.

Bill of Rights: Eighth Amendment Excessive Fines Clause Applicable To All 50 States

Published By Stephen Preziosi

Eighth Amendment’s Excessive Fines Clause is Incorporated by the Fourteenth Amendment’s Due Process Clause

Timbs v. Indiana

No. 17-1091

Supreme Court of the United States

Decided February 20, 2019

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ISSUE:

Whether the Eighth Amendment’s Excessive Fines Clause is incorporated into the Fourteenth Amendment and through the Due Process Clause is applicable to the States.

HOLDING:

The Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.  The Due Process Clause incorporates and renders applicable to the States Bill of Rights protections fundamental to the nation’s scheme of ordered liberty or rooted in the nation’s history and traditions. 

FACTS OF THE CASE:

Tyson Timbs plead guilty to dealing in a controlled substance and conspiracy to commit theft in Indiana State court.  When Timb’s was arrested, police officers seized his Land Rover SUV which he purchased for $42,000 with money received from an insurance policy. 

After pleading guilty in the criminal case, the trial court held a hearing on the forfeiture demand.  Originally, the Supreme Court of Indiana denied the requested forfeiture because forfeiture of the Land Rover would be disproportionate to the gravity of Timb’s offense and, therefore, unconstitutional under the Eighth Amendment’s Excessive Fines Clause.  The Indiana Supreme Court later reversed, stating that the Executive Fines Clause constrains only federal action and is inapplicable to state impositions.  

COURT’S ANALYSIS:

The Court held that the Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.  The Due Process Clause incorporates and renders applicable to the States Bill of Rights protections fundamental to the nation’s scheme of ordered liberty or rooted in the nation’s history and traditions. 

With the exception of a handful of scenarios, the Court has determined that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States.  Incorporated Bill of Rights guarantees are enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.  Therefore, there is no distinction between the federal and state conduct the Bill of Rights prohibits or requires. 

Under the Eighth Amendment, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.  The Court focuses on the phrase “nor excessive fines imposed” which limits the government’s power to extract payments, whether monetary or in kind as punishment for some offense.  The Court determined that the Fourteenth Amendment incorporates this protection. 

In support of applying the Eighth Amendment to the States, the Court cited the Magna Carta, the Virginia Declaration of Rights and the English Bill of Rights.  By 1787, the constitutions of eight States, which accounted for 70% of the U.S. population, forbade excessive fines.  In 1868, the constitutions of 35 states, accounting for over 90% of the U.S. population, prohibited excessive fines. 

Although the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuse continued through involuntary labor in lieu of fines imposed upon newly freed slaves.  It was not until Congressional debates over the Civil Rights Act of 1866 that the joint resolution, otherwise known as the Fourteenth Amendment, mentioned the use of fines to coerce involuntary labor.  Today, all fifty States have a constitutional provision prohibiting the imposition of excessive fines either directly or by requiring proportionality. 

Through the Incorporation Doctrine of the Fourteenth Amendment, the Due Process Clause, the Eighth Amendment’s Excessive Fines Clause is now applicable to all fifty states, they cannot force people to pay excessive fines or punishment.