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Law School Case Brief

United States v. Simmons - 560 F.3d 98 (2d Cir. 2009)


An anonymous 911 call reporting an ongoing emergency is entitled to a higher degree of reliability and requires a lesser showing of corroboration than a tip that alleges general criminality. The higher degree of reliability is rooted in the special reliability inherent in reports of ongoing emergencies. Given the greater reliability of an emergency 911 call, the requisite level of corroboration is lower. This approach recognizes the need for police to act on reports of an emergency situation without delay, but still requires police officers to corroborate allegations of criminal activity in some meaningful way. The basic requirement remains that an investigative stop must be predicated on reasonable suspicion that criminal activity is afoot. 



On November 12, 2005, at approximately 4:25 a.m., New York Police Department ("NYPD") Officer Hugh McHugh and NYPD Detective Robert DiPaola, while on patrol in a squad car, received a radio dispatch informing them that an assault, possibly with a weapon, was in progress at a nearby apartment building. The dispatch was based on a 911 call from an anonymous caller. Simmons, matching the description given by the anonymous caller, was arrested after officers searched him and recovered two loaded firearms.  The District Court denied defendant Hasan Simmons' motion to suppress evidence of his possession of two firearms and excused a juror during the jury's deliberations, after which the remaining 11 jurors returned a verdict of guilty. The District Court ruled that the Armed Career Criminal Act, 18 U.S.C. § 924(e), did not apply to Simmons, and it therefore should have applied the ten-year statutory maximum; however, it still imposed a sentence of 175 months. he defendant appealed.


Did the officers who arrested defendant Simmons have reasonable suspicion to stop and to search him?




The United States Court of Appeals for the Second Circuit affirmed the judgment of conviction. The police officers, in responding to a radio dispatch based on an emergency 911 call that reported an assault in progress possibly involving a firearm, had reasonable suspicion to stop and to search defendant Simmons.  In the context of the emergency 911 call here, the totality of circumstances supported the conclusion that the officers had reasonable suspicion to stop Simmons. Looking to the Terry decision, the Court found that the officer conducting the patdown search was warranted in the belief that his safety or that of others was in danger." Accordingnly, the District Court's denial of Simmons’ motion to suppress the firearms was affirmed. The District Court's decision to excuse a juror pursuant to Fed. R. Crim. P.23(b)(3) was also affirmed. While the case was close, because the District Court determined both that the juror would be absent at least one day and that delaying deliberations might result in another juror's hardship, the decision to excuse the juror was based on sufficient information. However, the Court remanded for resentencing. As later recognized by the District Court after the seven-day period for reducing a sentence had elapsed, the sentence of 175-months' imprisonment was improperly in excess of the 10-year statutory maximum.

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