Division On 911 Non-Emergency Statements As Testimonial Hearsay

In possession of cocaine with intent to distribute trial, affirming admission of 911 statements by an anonymous caller describing "ongoing street-level drug trafficking"; a divided Fifth Circuit panel employs a four factor test drawn from Davis v. Washington, 547 U.S. 813 (2006) and Michigan v. Bryant, 562 U.S. _, 131 S.Ct. 1143 (2011) to conclude that portions of the 911 statements admitted were not testimonial hearsay so that their admission was to be assessed under the FRE, rather than under the Confrontation Clause, dissent notes possible circuit split reflected on the issue, in United States v. Polidore, _ F.3d _ (5th Cir. Aug. 13, 2012) (No. 09-40896)

In a recent case, a divided Fifth Circuit panel demonstrated an approach to assessing the admissibility of 911 evidence based on principles articulated in the 2006 case of Davis v. Washington and the 2012 case of Michigan v. Bryant. In Davis, the Supreme Court explained when statements uttered in an emergency 911 situation were not "testimonial," they were not subject to Confrontation Clause's restrictions. When a 911 statement was made under circumstances that objectively indicated an "ongoing emergency" and its "primary purpose" was to help police meet that emergency, the statement was not testimonial. In contrast, a victim's written affidavit given to the police is testimonial and excludable under the Confrontation Clause because no emergency existed at the time of the statement and the primary purpose of the interrogation was to investigate a past crime. June 2012's decision in Michigan v. Bryant possibly extended this by examining when "the circumstances of the interaction between [the victim] ... and the police objectively indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Therefore, [the victim's] ... identification and description of the ... [perpetrator] was "not testimonial," and their admission at defendant’s trial would not violate the Confrontation Clause.

For the Fifth Circuit, defendant Polidore's appeal challenged the testimonial nature of anonymous statements called to a 911 dispatcher. At issue was the propriety of trial judge's decision to admit a redacted recording of two calls made by this same anonymous 911 caller. In the first recording played for the jury, the anonymous caller focused not on describing an "emergency" but rather complains of drug activity in his neighborhood. When asked for move information, the anonymous caller initially refuses to tell the dispatcher the location because "I’m not gon —Why would I tell you? I’m trying to be anonymous and get y’all to get these drug dealers from over here." Ultimately the caller provided the requested information of where police should respond to and what to look for when they arrived. The dispatcher asks the caller for the license plate number of the car in which drug transactions are seen. The caller did not know, but volunteered to "go back out there [where defendant's car was] and get it [license plate number], but I don’t want him [defendant] to know that." The caller identified the perpetrator as the defendant by name and described the defendant's method of operation, his clothing and his activities. Polidore, __ F.3d at __.

The court also admitted a second 911 conversation between the the anonymous caller, who identifies himself as the prior anonymous caller. In this conversation, the caller told the dispatcher where the drugs were held in the defendant's car. Apparently, the caller was nervous and wanted to ensure that his anonymous status would remain. According to the caller, when officers arrive they should "do it [arrest defendants] when they leave here ‘cause he’s [defendant] for sure got it [the drug] in the car ‘cause he didn’t know I was the one called ‘cause I the only one seen it." The caller described in response to the dispatcher's questions that he had seen the alleged drugs and asked the dispatcher that when officers were dispatched to the location "would you tell them [the responding officers] not to do it [apprehend defendants] here? Cause I don’t want him [defendant] to think that I was the one told (inaudible) pulls off going down the street." Polidore __ F.3d __.

In assessing whether these statements were testimonial, the circuit noted that a key factor concerned whether the statement about a matter currently happening or a statement giving the history of something in the past. The Supreme Court "has directed that if the primary purpose of an interrogation is to create a record for trial, then its [the record's] admission at trial is barred by the Confrontation Clause." Polidore __ F.3d __. In contrast, “when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony[,]” it does not fall within the scope of the Clause, and “the admissibility of [the] statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” Id. The Fifth Circuit assessed four factors for deciding "whether the primary purpose of a police interrogation was to create an out-of-court substitute for trial testimony." According to the circuit, these factors should could not be applied to the defendant's case "mechanically." Indeed, in Polidore, "interrogations in this case do not fit neatly into the categories contemplated by the limited holdings recently issued by the Supreme Court." The four factors included:

  1. Contemporaneity: whether the declarant “was speaking about events as they were actually happening, rather than ‘describ[ing] past events,’”
  2. Reasonable Belief: whether a reasonable person in the declarant’s position would have believed that the declarant was facing an ongoing emergency
  3. Exclusivity: whether “the nature of what was asked and answered,” viewed objectively, “was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past”
  4. Formality: "the level of formality of the interrogation"
Polidore __ F.3d __ (citing Davis, 547 U.S. at 827; Bryant, 131 S. Ct. at 1157 & n.8) (itemization and titling of elements added),

In assessing what the trial record revealed about each of the four factors, the circuit found some were met, others were not. For example, the circuit concluded that whether the contemporaneity factor had been met was not clear: "Although it does appear that the declarant contemplated that his call could lead to a later criminal prosecution, he was not making his statements “to establish or prove past events potentially relevant to later criminal prosecution.” Looking at the results of assessing the four factors, the court's role was to determine if "under the totality of the circumstances, the primary purpose of the interrogation was not to create an out-of-court substitute for trial testimony.

Ultimately, its approach seemed highly fact-specific:

In sum, an objective examination of the 911 caller’s “statements and actions” does not indicate that “the primary purpose of the interrogation” was to “enable police assistance to meet an ongoing emergency.” In particular, the caller’s statements and actions during the second 911 call reveal that “the information [he] knew at the time of the [call] would [not have led] a reasonable person to believe that there was an emergency,” as the Supreme Court has presently defined the term. Between the first and the second call, the caller appeared to have (1) moved to a location where he could see Polidore place drugs in a side door panel of his car and then (2) approached Polidore’s vehicle to a position where he could see the drugs in the side door panel. As stated previously, the caller asked the operator on two occasions during the second call to wait to arrest Polidore until he left the apartment complex. The caller’s willingness to approach the reported activity and to allow it to continue until Polidore voluntarily drove away from the complex indicates that a reasonable person in his position would not have thought that the situation constituted an emergent threat to himself, the public, or responding officers.
Polidore __ F.3d __ (footnote omitted).

Dissenting Circuit Judge Leslie H. Souhwirk cited the Sixth Circuit's view that "statements made to the authorities with a full understanding that the authorities will use them to investigate and prosecute a crime are testimonial, regardless of whether those statements concern an ongoing or past crime. Polidore __ F.3d __ (citing United States v. Cromer, 689 F.3d 662, 674 (6th Cir. 2004) (holding that "statements 'made to authorities who will use them in investigating and prosecuting a crime, ... made with the full understanding that they be so used,' are precisely the sort of accusatory statements the Confrontation Clause was designed to address." Polidore __ F.3d at __. The dissent suggests a split in the circuits on addressing the admissibility of 911 calls under the Confrontation Clause.

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Federal Rules of Evidence
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