Judges Agree on Stop Outcomes but Differ on Rationales

ALBANY - The state Court of Appeals upheld the use of evidence discovered in the police stop of one vehicle but denied it in a second Wednesday in a decision that reflected differences on the court over when police can pull over vehicles based on tips from anonymous 911 callers.

But while a bare 4-3 majority agreed on the outcome in three cases that emerged from the two stops, the judges in the majority were split evenly over the reasoning for their determinations.

And the dissenters also split into two camps, with Chief Judge Jonathan Lippman ( See Profile) and Judge Jenny Rivera ( See Profile) warning that the majority was undermining basic constitutional protections traditionally accorded citizens against police intrusions.

The disagreements were expressed in People v. Argyris, 198; People v. DiSalvo, 199; and People v. Johnson, 210.

The majority upheld the convictions of Costandino Argyris and John DiSalvo for weapons possession in Queens in 2007, but said evidence of Eric Johnson's intoxication discovered after a traffic stop in 2011 in Ontario County could not be used against him.

In the Argyris-DiSalvo arrest, the caller told police four "big bully white guys" had just gotten into a black Mustang in the Astoria section of Queens and one of them had a "big gun." The caller also reported the vehicle's license plate.

Police said they found several weapons in the car after pulling it over and that Argyris was wearing a bulletproof vest and DiSalvo had a revolver in his waist band.

In Johnson, the anonymous caller said Johnson was either "sick or intoxicated." His vehicle was pulled over after a sheriff's deputy said it briefly strayed into the oncoming lane of traffic as Johnson was making a right-hand turn, according to the decision.

In an unsigned memorandum, the majority said the stop of the Argyris-DiSalvo vehicle was justified using either the Aguilar-Spinellistandard or the so-called totality-of-the-circumstances test.

The Aguilar-Spinelli standard is based on U.S. Supreme Court rulings in Spinelli v. United States, 393 U.S. 410 (1969) and Aguilar v. Texas, 378 U.S. 108 (1964). The two-pronged test requires courts to evaluate both the basis of the informant's knowledge and the reliability or veracity of the informant himself.

Aquilar-Spinelli was abandoned by the U.S. Supreme Court after its ruling in Illinois v. Gates, 462 U.S. 213, as too rigid in favor of an analysis where the totality of the circumstances is considered.

New York has retained the Aguilar-Spinellirule, which the majority affirmed Tuesday.

"Because sufficient information in the record supports the lower courts' determination that the tip was reliable under the totality of the circumstances, satisfied the two-pronged Aguilar-Spinelli test for the reliability of hearsay tips in this particular context and contained sufficient information about defendants' unlawful possession of a weapon to create reasonable suspicion, the lawfulness of the stop of defendants' vehicle is beyond further review," the majority said in affirming the convictions of Argyris and DiSalvo.

'Cursory Allegation'

In the Johnson stop, whether evaluated under the Aguilar-Spinelli test or the totality-of-the-circumstances test, the "reliability of the tip was not established" and the evidence of drunken driving had to be suppressed, the court said.

"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," the court concluded.

Judges Victoria Graffeo ( See Profile), Robert Smith ( See Profile), Eugene Pigott Jr. ( See Profile) and Sheila Abdus-Salaam ( See Profile) joined in the majority's memorandum decision.

In a lengthy concurrence in which she was joined by Graffeo, Abdus-Salaam wrote that the Aguilar-Spinelli test is the proper standard to determine the legality of stops based on anonymous tips.

Smith, in a concurrence in which Pigott joined, said he would adopt the totality-of-the-circumstances test because he said the Aguilar-Spinelli rule unnecessarily complicated the analysis of whether police properly executed stops based on anonymous tips.

Rivera's dissent said the majority of the court was rejecting the standard enunciated in People v. Moore, 6 NY3d 496 (2006), that an anonymous tip must contain "predictive information," such as information about criminal behavior that the subject of the tip is involved in, to allow police to test its reliability.

Rivera said of the majority's decision that it was insufficient to "accept as a legal precept the sufficiency of an informant's untested and unsubstantiated allegation of personal knowledge of criminal activity as a basis for a tip's reliability."

"In my opinion, we must remain ever mindful of this court's statement in Elwell [People v. Elwell, 50 NY2d 231 (1980)], regarding the power of the state to arrest, and which applies with equal force to lesser police intrusions, that reliance 'on mere suspicion collides violently with the basic human right of liberty,'" Rivera wrote in a dissent in which Lippman joined. "'It can be tolerated only in a society which is willing to concede to its government power which history and experience teach are the inevitable accoutrements of tyranny.'"

In the other dissent, Judge Susan Phillips Read ( See Profile) said she would adhere closely to the Moore standard and require that valid anonymous tips provide predictive information.

Steven Kartagener of Manhattan defended Argyris and DiSalvo.

Edward Fiandach of Fiandach & Fiandach in Rochester argued for Johnson.

Donna Aldea, a partner with Barket, Marion, Epstein & Kearon of Garden City, argued for the prosecution in the Argyris and DiSalvo cases. Aldea is a former Queens assistant district attorney.

Assistant Ontario County District Attorney Jeffrey Taylor represented the prosecution in Johnson.

DiSalvo was sentenced to 6 years in prison and Argyris to 3 1/2 years. Tuesday's ruling affirmed one upholding the legality of the police stop and search which led to their convictions by the Appellate Division, Second Department.

The Court of Appeals overruled a decision by Ontario County Court in determining that the evidence against Johnson collected after the stop should be suppressed.