CA2: Anonymous 911 call of man waving a gun satisfied Navarette

This anonymous 911 call of a menacing man with a weapon was reliable enough for a stop. The caller stayed on the phone after asking it not be recorded but told all 911 calls are, there was detail about the threat, and the caller apparently feared retaliation. And there was a second call from another. United States v. Twiss, 2018 U.S. App. LEXIS 35514 (2d Cir. Dec. 19, 2018):

The anonymous 911 call was sufficiently reliable to provide reasonable suspicion to make the investigatory stop. In Navarette v. California, the Supreme Court held that police are justified in relying on an anonymous 911 call where the call is (i) made by an eyewitness, (ii) nearly contemporaneous with the event, and (iii) recorded and traced by the 911 system. 572 U.S. 393, 398-401, 134 S. Ct. 1683, 188 L. Ed. 2d 680 (2014). The 911 call in this case had all these features. The particularities of the call that Twiss identifies are not suspicious enough to undermine the call’s reliability. For example, although the tipsters requested that the call not be recorded, they continued their report after the 911 operator informed them that 911 calls are always recorded. Further, the tip gave rise to reasonable suspicion of ongoing criminal activity: menacing in the second degree. See Navarette, 572 U.S. at 401-02 (internal citations omitted); N.Y. Penal Law § 120.14(1). While one caller clarified that none of the individuals had directly threatened them, he also said that he and the other caller “took off” because the other caller was “afraid.” App. 264-66. The police thus had reason to believe that the suspects had “intentionally place[d] or attempt[ed] to place” the callers “in reasonable fear of physical injury … by displaying a deadly weapon.” N.Y. Penal Law § 120.14(1).