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Keep 911 recordings, Md. appeals court tells police

Police responding to an anonymous 911 call regarding potentially illegal activity are best advised to keep a recording of that call, lest a subsequent stop, arrest and conviction be overturned on appeal.

And if a recording does not exist, the officers had better have an explanation, Maryland’s second-highest court said last week in overturning an illegal gun possession conviction in Baltimore.

In its reported 3-0 decision, the Court of Special Appeals said a 911 dispatcher’s report — that two black men wearing blue and gray jackets were selling drugs from a Honda Accord in the 5500 block of Ready Avenue — did not give police officers reasonable articulable suspicion to stop the vehicle and men meeting the tipster’s anonymous, unrecorded description. A gun was found on one of the men during what the appellate court called an unconstitutional seizure before giving its advice to law enforcement.

“(I)t would behoove the state, when relying on an anonymous 911 tip, to produce the recording (or explain its absence) and give the suppression court [which decides a seizure’s validity] the ability to listen to the conversation – all the information supplied by the caller and not just what the police dispatcher relayed to the patrol officers – in order to make a more informed judgment regarding its reliability,” Judge Alan M. Wilner wrote for the Court of Special Appeals.

“The suppression judge had nothing but a double-level hearsay statement of what the officers heard from the police dispatcher, which may have been merely an incomplete summary of what the anonymous caller actually told 911,” added Wilner, a retired judge sitting by special assignment. “(T)he subjects of the call were found where the caller said they were, but what was lacking was any way of concluding that the caller knew they were or would be selling drugs at that location, and there was not corroboration of that prior to immobilizing the car.”

Police officers Charles Faulkner and Horace McGriff, having received the dispatch, arrived at the 5500 block, where they saw the Honda and the two men, according to the court’s opinion.

Faulkner parked his car in front of the Honda, while McGriff parked behind it.

Believing the men’s furtive actions indicated they may be armed, the officers ordered them out of the car and frisked them for weapons, finding a sandwich bag of narcotics on one of the men, according to the opinion. A subsequent search of the Honda revealed a handgun, resulting in the arrest of one of the men, Maurice Mack.

Mack was subsequently convicted after a trial on an agreed statement of facts with the prosecution. He was sentenced to five years in prison without the possibility of parole.

On appeal, Mack argued through counsel that the seizure was invalid because the anonymous tip did not give the police reasonable articulable suspicion of his involvement in illegal activity.

The Court of Special Appeals agreed, citing the U.S. Supreme Court’s 2000 holding in Florida v. J.L. that a tip “solely from a call from an unknown location by an unknown caller” does not provide the “reasonable articulable suspicion” that a tip from a known informant might.

“The problem in this case, for the state, is, in part, the problem that led to the result in J.L. – the absence of a record that can support an enhanced reliability of the 911 call, which is less excusable here than it may have been 18 years ago in J.L.” Wilner wrote. “When the state is forced to rely solely or predominately on an anonymous tip, it must provide persuasive evidence that the tip was reliable. No such evidence was forthcoming in this case.”

Raquel Coombs, a spokeswoman for the Maryland attorney general’s office, declined to comment on the decision or any plans to seek review by the Court of Appeals.

Mack’s appellate attorney, assistant Maryland public defender Claudia Cortese, did not return a telephone message seeking comment Wednesday.

Judges Deborah S. Eyler and Matthew J. Fader joined Wilner’s opinion in Maurice Mack v. State of Maryland, No. 1627 September Term 2017.

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