Wednesday, December 19, 2018

Challenges to anonymous tip and ‘career offender’ designation fall short

In United States v.McCants, No. 17-3103 (Dec. 18, 2018), the Court rejects a Fourth Amendment challenge to a stop and frisk predicated on an anonymous tip and upholds application of the Sentencing Guidelines’ ‘career offender’ enhancement based on prior New Jersey robbery convictions.

As summarized by Judge Hardiman in an opinion joined by Judges Krause and Bibas, an unknown “caller used the 911 system to report an eyewitness account of domestic violence and provided the officers with a detailed description of the suspect and location, both of which were quickly confirmed by the police.”  The tipster reported that a man with braids and a red hat was “out here beating up his girlfriend … really bad right now” near the intersection of Grove and Williams in East Orange.  The caller also said “I think he has a gun,” then hung up without identifying herself.  Within a minute, an officer had responded to the reported location and spotted a man with dreadlocks and a red hat walking on Grove Street with a woman.  The woman showed no sign of injury.  Police searched the man and found a handgun, then placed him under arrest and recovered heroin, leading to gun and drug trafficking charges under 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 841(a), (b)(1)(C).
In the course of its Fourth Amendment analysis, the Court reaffirms five factors it has previously articulated for assessing the reliability of anonymous tips, such as whether the information is relayed face-to-face, whether the tipster can be held responsible if allegations turn out to be fabricated, and whether the tip predicts what will follow.  Though several of the factors were lacking here, the Court reiterates that “a tip need not bear all the indicia – or even any particular indicium – to supply reasonable suspicion.”  In the Court’s view, the tip was less “limited and vague” than the one held to lack sufficient reliability in Florida v. J.L., 529 U.S. 266 (2000), where the caller reported that a young black man in a plaid shirt at a bus stop was carrying a gun.  In J.L., the Court states here, “the informant reported significantly fewer details and described potentially innocuous behavior without explaining why the informant thought the subject was committing (or was about to commit) a crime."

The Court also states that the East Orange caller’s use of 911 added to the tip’s reliability under the circumstances, and that proper deference to “law enforcement officers’ experiences and training regarding domestic violence” foreclosed the argument that the woman’s evident lack of injury dispelled reasonable suspicion.  For these points the Court draws heavily on Navarette v. California, 572 U.S. 393 (2014), which held an anonymous 911 caller’s report sufficient under the circumstances to establish reasonable suspicion of drunk driving even though police did not observe any erratic driving.

On the sentencing challenge, the Court holds N.J. Stat. Ann. § 2C:15-1 “divisible” without citing state decisional law, reading United States v. Peppers, 899 F.3d 211 (3d Cir. 2018), and United States v. Ramos, 892 F.3d 599 (3d Cir. 2018), to make it sufficient that on the face of the statute, each of three disjunctively worded subsections “requires different proof to sustain a second-degree robbery conviction.”  Construing transcripts of colloquies from the defendant’s prior cases, the Court determines that he pled guilty to the offense defined by subsection (a)(2) of the statute, which is violated when a person, in the course of committing a theft, “[t]hreatens another with or purposely puts him in fear of immediate bodily injury.”

This definition is a categorical match for a “crime of violence” under the career offender guideline at U.S.S.G. § 4B1.2(a) on each of two analyses, the Court concludes.  On the rationale of United States v. Chapman, 866 F.3d 129 (3d Cir. 2017), the requirement that the defendant intentionally place another in fear of physical pain or injury means the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”  Alternatively, the requirement that the defendant threaten bodily injury means the offense involves more than “de minimis force,” rendering it within the scope of “robbery” as that term is generically used in the guideline to enumerate one type of qualifying predicate.

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