Opinion
CRIMINAL ACTION No. 16-12
10-24-2016
UNITED STATES OF AMERICA v. ERIC KALB
MCHUGH, J. MEMORANDUM
This is a criminal prosecution for the destruction of property located on federal land. By the Government's theory of the case, Defendant Eric Kalb aided and abetted the destruction of an electrical transfer box in the Valley Forge National Historical Park, by agreeing to drop off and pick up a friend a friend there who intended to vandalize the box for recyclable metal in a practice known as "scrapping." Tragically, that friend, Mark Tuoni, was electrocuted. Although there is scant if any evidence that Defendant himself was engaged in scrapping that night, the Government's motivation for prosecution undoubtedly stems from the fact that Mr. Kalb is himself a known scrapper whose conduct has in the past put him on the wrong side of the law.
On the night that this tragedy occurred, Mr. Kalb made a 911 call from a payphone reporting the incident, but without identifying himself. Police responded both to the site of the electrocution and to the payphone from which the call originated, as they were understandably interested in identifying the caller. Mr. Kalb had the left the phone from which he placed the call, but was stopped by police nearby, and voluntarily gave a statement that forms the foundation for this prosecution. The defense contends that the stop was unlawful, and that the resultant statement must therefore be suppressed. For the reasons that follow, I agree, and have entered an order granting the motion to suppress.
As an initial matter, I found the testimony of all of the law enforcement officers credible. First, I am persuaded that Officer Raymond Emrich, who was dispatched to the payphone from where the call had been placed, had a proper basis for identifying a white male driving a white Ford Ranger with tinted windows as the likely caller. I also credit the testimony of Officer Byron Ferguson who stopped Mr. Kalb on the basis of that" flash" information. Finally, I credit the testimony of both Officer Theodore McGinley and Detective Les Glauner that at no time was Mr. Kalb in custody, and at all times his cooperation with the police was totally voluntary. But my acceptance of all of the testimony of the various law enforcement personnel involved does not alter my conclusion that police lacked the authority to stop Mr. Kalb in the first instance.
For that reason, Defendant's contention that there was a Miranda violation is rejected.
The Government concedes that in the absence of a warrant, it has the burden to establish that the stop was lawful. United States v. Herrold, 962 F.2d 1131, 1137 (3d Cir. 1992). It attempts to justify the officers' actions here under Terry v. Ohio, 392 U.S. 1 (1968), which permits "a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123 (2000). Although the Government's burden under Terry is far less onerous than a showing of probable cause, the Government cannot justify stopping Mr. Kalb on the record here.
The content of the 911 call, set forth in an "Event Register" submitted at the suppression hearing, in no way suggests that the caller is anything more than a witness. He stated that a male had been electrocuted; identified the site; described his efforts to find a phone; and reported that the victim "may have been scrapping." The caller was obviously upset, and unwilling to identify himself, but said nothing that implicated himself in any criminal conduct. Based on the information supplied, before Officer Emrich even reached the location from which the call had been made, authorities were able to identify and respond to the site of the electrocution. Although the situation was obviously a serious one because it involved a fatality, the gravity of the matter does not change the controlling legal standard.
The Event Register is attached to this Memorandum. --------
In elaborating on Terry, the Supreme Court has held that "[an] investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." United States v. Cortez, 449 U.S. 411, 417 (1981). Or, as the Third Circuit has characterized Terry, an officer "must have a particularized and objective basis for believing that the particular person [being stopped] is suspected of criminal activity." United States v. Brown, 159 F.3d 147, 149 (3d Cir. 1998). At most, the police had reason to believe that Mr. Kalb had information about likely criminal activity.
In that regard, the fact that Mr. Kalb was in a position to observe the offense he reported does not suffice, because mere proximity to criminal conduct is not a justification for an investigatory stop. United States v. Navedo, 694 F.3d 463, 468-69 (3d Cir. 2012) (extending the principles of Ybarra v. Illinois, 444 U.S. 85, 91 (1979), to investigatory stops).
In reaching this result, I attach particular significance to the fact that Terry focuses on situations where there is some immediacy, and where prompt police action is necessary in order to deal with an ongoing or future threat, as emphasized by the Supreme Court in Cortez. An accidental electrocution during an act of vandalism is not like an act of violence where a fleeing suspect who is armed poses an ongoing threat to public safety. At the point where Mr. Kalb was stopped, nothing was then "afoot," as neither his unwillingness to identify himself to the 911 operator nor his attempt to elude identification was unlawful. Significantly, the investigatory needs of the police were already met when Officer Ferguson pulled up behind Mr. Kalb's vehicle and was able to identify the license plate. That information alone would have sufficed, without pulling him over. The relevance of such alternative methods was recognized by the Court of Appeals in United States v. Roberson, 90 F.3d 75, 81 (3d Cir. 1996), where an anonymous tip to a 911 operator that a suspect was dealing drugs on a street corner was deemed insufficient to support a Terry stop. In suppressing evidence obtained pursuant to the stop, the Court observed that police are hardly powerless in such a situation, as the initial information they have can form the basis for further investigation such as surveillance. Here, the officer who stopped Mr. Kalb could have continued to follow him to his destination and engaged him in conversation, or other officers later could have gone to his home to engage in what is colloquially referred to as a "knock and talk" encounter. Indeed, Mr. Kalb's willing cooperation after he was pulled over suggests that such tactics would have sufficed to meet the needs of the investigation.
Roberson sheds further light on this case in another respect. There, an anonymous tip reporting supposedly ongoing criminal activity was deemed insufficient to support a stop in the absence of direct police observation. Here, the anonymous tip reported that only a man had been electrocuted, and the subsequent stop was unsupported by any law enforcement information whatsoever and based entirely on an inference that the tipster himself might have been criminally involved. If the tip in Roberson was deemed unreliable absent some confirmation, I cannot see how the simple act of making a call to 911 reporting an incident can provide the justification for a stop.
Kalb's statement was the product of the unlawful stop, and the Government does not try to argue that there is any "meaningful intervening event" that would attenuate its taint. Taylor v. Alabama, 457 U.S. 687, 691 (1982). Accordingly, it cannot be used as evidence.
/s/ Gerald Austin McHugh
United States District Judge
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