### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 09-40896

UNITED STATES OF AMERICA, Plaintiff-Appellee
v. KENNEDY PAUL POLIDORE, Defendant-Appellant

Appeals from the United States District Court for the Eastern District of Texas

Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges. GARZA, Circuit Judge: A jury found the defendant, Kennedy Polidore, guilty of possessing crack cocaine with the intent to distribute it. On appeal, Polidore c o n t e n d s that reversible error occ u r r e d w h en portions of two 911 calls were admitted into evidence. For the following reasons, WE AFFIRM. I On the night of Polidore’s arrest, two anonymous 911 calls made by the

same individual alerted the police to possible criminal activity. On the portion of the first 911 call that was played to the jury after other portions of the call had been redacted, the following colloquy took place, which started at 12:15 A.M. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

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Operator: 911, where is your emergency ? S i r , y o u ’re phone is cutting

out. You called about what? Caller: All of this drug activity over off Sweetgum? Operator: What address on Sweetgum? Caller: I ’ m n o t g o n

—Wh y w o u l d I t e l l y o u ? I ’ m t r y i n g t o b e

anonymous and get y’all to get these drug dealers from over here. Operator: Sir, I’m not giving your name out so give me the information

so that I can send the officers to the right place, where you’re at. Caller: It’s a red PT Cruiser. This guy is selling— Operator: Sir, give me the address. Caller: 2505 Sweetgum. All this traffic. Operator: Did you see his license plate number? Caller: I t ’ s

—u h

—I know it’s a red PT Cruiser. I—I can go back out

there and get it, but I don’t want him to know that— Operator: Okay, do you know his name? Caller: Kennedy Polidore. Operator: Do you know what kind of drugs he’s selling? Caller: He’s selling crack. Operator: Which apartment is he in right now? Caller: He don’t e v e n l iv e o ut here. He’s just sitting on the steps.

He’s running in and out, in and out. People coming— Operator: What’s he wearing tonight? Caller: Ma’am? Operator: What’s he wearing tonight? Caller: He’s got some green shorts on and a white t-shirt. The car is

s i t t i n g o f f o f

— u h

— 1 1 t h , y e a h t h a t ’ s 1 1 t h , and—uh—Sweetgum.
On the portion of the second 911 that was played to the jury, the following colloquy took place, which began at 12:24 A.M. Operator: Phone line 911, where is your emergency? Caller: Hey, I was the one just called about the drug deal that’s going

down over here on Sweetgum. Operator: Yes, sir. Caller: Ok. He’s got the dope in the side door panel. Operator: The dope’s in the side door panel? Caller: Yeah. He—the— Operator: The right or the left side?

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Caller: Uh—of the driver's side—And—but I want them to do it when

they leave here ‘cause he’s for sure got it in the car ‘cause he didn’t know I was the one called ‘cause I the only one seen it. Operator: Okay, how did you see it sir? Caller: I seen him put it in there. I can see it right now. Operator: Okay, I’m adding the information to the call. Thank you, sir. Caller: Okay. But would you tell them not to do it here? Cause I

do n ’t want him to think that I was the one told (inaudible) pulls off going down the street. Operator: Ok. Caller: Thank you. Operator: You’re welcome.
The two responding po l i c e o fficers later testified that on the night in question they received a call via radio dispatcher requesting that they respond to the Monterre y Apartments at 2505 Sweetgum in order to look for “a red PT Cruiser in the parking lot with a black male occupying the PT Cruiser who was in the apartment selling narcotics.” When they arrived at the address given by the 911 caller, they observed a red PT Cruiser, which was parked, unoccupied, and had its driver’s side window down. Because the dispatcher had informed the officers that the suspect was keeping some of the narcotics inside a compartment

on the d r iv er’s side of the vehicle, they looked from outside the vehicle and observed what appeared to be three rocks of crack cocaine in plain view. The officers further testified that a man then approached them, identified himself as the 911 c aller, and provided t h em with some information about the

s u s p e c t a nd the PT Cruiser. Believing that the suspect would return to the unoccupied car, the officers devised a plan w h ereby one would hide behind a nearby fence and the other would drive the patrol unit around the corner. About five minutes later, a black male, dressed in dark-col o r e d s h orts and a white t-shirt, exited the apartment complex and entered the PT Cruiser on the driver’s side; a female entered the vehicle on the passenger’s side. The officer behind the fence alerted the officer in the patrol unit via a call on his cell phone. The officer

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in the patrol unit returned to the apartment par k i ng lot, activated his
emergency lights, and followed the PT C r u i ser. Once the officer activated his emergency equipment, the driver of the PT Cruiser accelerated to speeds of 60 to 65 miles per hour before failing to negotiate a turn and ending up in a vacant l o t

. As he was running up to the vehicle, the officer saw the driver’s sid e d o o r open and the driver stick his arm out and throw something und e r n eath the vehicle. The driver identified himself as Kennedy Polidore and the officer took him into custody. After the officer handcuffed Polidore, he discovered what turned out to be a clear bag o f powder cocaine on the driver’s side floorboard. The officer also retrieved three rocks of crack cocaine from the same place earlier observed, and once the car was moved by a wrecker, he discovered a clear bag of crack cocaine on the ground where the car previous l y s t o o d

. The officers 1 testified that, based on their training and expe r i e n c e , t he bag of crack cocaine recovered from underneath the vehicle was a “large amount” and was consistent with distribution purposes. Polidore was charged by indictment with one count of possession with intent to distribute five grams or more but less than 5 0 gr a m s of a mixture or substance containing a detectable amount of cocaine base. The Government subsequently filed a notice and information of prior convictions for purposes of increased punishment provided by 21 U.S.C. §§ 841(b)(1)(B) and 851. The jury found Polidore gu i l t y a s charged. The district court sentenced him to 137

m o n ths of imprisonment, to be followed by eight years of supervised r e l e a s e
. Polidore filed a timely notice of appeal. II On appeal, Polidore claims that the district court erred by admitting the 911 recordings into evidence be c a u se the recordings contained testimonial

At tri al, a for ens ic sc ient ist tes tif ied that the sub st ance s fou nd in and unde rnea th the 1
car we re coc aine bas e (0. 63 gram s and 19.5 7 gram s) and coc aine hydro chlo rid e (27. 66 gram s)

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hearsay that v i olated his Sixth Amendment right to be confronted with the witnesses against h i m
. He asserts that the recordings were prejudicial and extremely harmful to his defense. Polidore alternatively contends that even if the caller’s stateme nt s w e r e n o nt e s ti m o ni al , th e di strict court erred by admitting the 911 r ecordings because they contained hearsay that did not fall under any of the exceptions to the rule against hearsay. 2 A B y proper objection, Polidore preserved his claim of error that the admission of the 911 recordings violated his right to confrontation. Accordingly, we review the alleged violation of the Confrontation Clause de novo, subject to

a harmless error analysis. United States v. Bell , 367 F.3d 452, 4 6 5 (5th Cir. 2004). The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right

. . . to be confronted with the witnesses against him.” U.S. C O N S T

. amend. VI. The Clau se “applies to ‘witnesses’ against the accused—in other words, th o s e w ho ‘bear testimony.’” Crawford v. Washington , 541 U.S. 36, 51 (2004) (citation omitted). “‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,’” id. (citation omitted), a description which

we have held “includes ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would b e available for use at a later trial.’” Brown v. Epps , — F.3d —, 2 0 1 2 W L 2401670, at *3 (5th Cir. June 27, 2012) (quoting Crawford , 541 U.S. at 52). The

Polid ore als o argues that his cas e sho uld be rem ande d to the d i s t r i c t c o u r t for 2
res ente nc i n g u nder the Fair Sent enci ng Act of 2010. Ho we ver, Polid ore wa s convic ted and
se nten ced bef

ore the eff

ect ive dat e of the FSA. In Uni ted States v. Doggins , 633 F.3d 379, 384 (5t h Cir. 2011), we held thatthe FSA does not app ly retr oact ively to cas es wher e sent enci ng o c c u r r e d pr ior to the eff ect ive dat e of the Act. He nce, Polid ore ’s argum ent is for ecl o s e d b y cir cuitp rec ede nt. 5 Case: 09-40896 Document: 00511954949 Page: 5 Date Filed: 08/13/2012No. 09-40896

Clause’s reach is limited to testimonial statements and “in order for testimonial evidence to be admissible, t h e Sixth Amendment ‘demands what the common law required: unava i l ab i lity and a prior opportunity for cross-examination.’” Michigan v. Bryant , 131 S. Ct. 1143, 1153 (20 11) (citation omitted). Although the Supreme Court has declined to “spell out a comprehensive d e f inition of ‘testimonial,’” it has noted that “‘at a minimum’ it includes ‘prio r testimony at a preliminary hearing, before a grand jury, or at a former trial; and

. . . police interrogations .’” Id. (citation omitted) (emp h asis added). However, “not all ‘interrogations by law enforcement officers[]’ are subje c t t o the Confrontation Clause.” Id. (internal citation omitted). For instance, the Court 3 has held that “interrogat i ons solely directed at establishing the facts of a past crime, in order t o i dentify (or provide evidence to convict) the perpetrator” fall squarely within the d e f i n i t i on of testimonial hearsay. Davis , 547 U.S. at 826. By contrast, the Court has singled out interrogations by 911 operators as a form of interrogation that does not necessarily elicit testimonial statements. Id. at 827 (“A 911 call, on the other hand, a nd at least the initial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to ‘establis[h] or prov[ e ] ’ some past fact, but to describe current circumstances requiring police assistance.”). To determine whether a particular interrogatio n p r oduced testimonial hearsay, the Court has instructed us to determine “the primary purpose of the interrogation.” Bryant , 1 3 1 S. Ct. at 1155. The Court has not “attempt[ed] to produce an exhaustive classification of all conceivable statements

. . . in response to police interrogation[ ] a s either testimonial or nontestimonial.” Davis , 547 U.S. at 822. But the Court has held that the “b a s i c o bjective of the

W e a s s u m e that the 911 ope rat ors in this cas e we re act ing as “agent s of la w 3 enf orc em ent wh en they cond uct [edt he] in ter rogat ions of [t he] 911 caller [] ” in t his c ase
. See Da vi s v. W

as hington , 547 U. S. 813 , 823 n.2 (200 6). 6 Case: 09-40896 Document: 00511954949 Page: 6 Date Filed: 08/13/2012No. 09-40896

Confrontation Clause

. . . is to prevent the accused from being deprived of the

o p p o r t u nity to cross-examine the declarant about statements taken for use a t trial.” Bryant , 131 S. Ct. at 1155. Accordingly, the Court has directed that if the primary purpose of an interrogation is to create a record fo r t r i a l , t hen its admission at trial is barred by the Confrontation Clause. Id. By 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 Court has identified several factors we should consider when deciding whether the primary purpose of a police interrogation was to create a n o u t -ofcourt substitute for trial testimony. Specifically, the Court has considered (1) whether the d e c l arant “was speaking about events as they were actually happening , rather than ‘describ[ing] past events,’” Davis , 547 U.S. at 827, (2) whether a reasonable person in the declarant’ s p o s ition would have believed that the declarant was facing an ongoing emergency, see id. ; see also Bryant , 131 S. Ct. at 1 1 5 7 & n.8, (3) 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,” Davis , 547 U.S. at 827, and ( 4) the level of formality of the interrogation. Id. In this case, however, we cannot resolve this issue by mechanically applying the above factors. The interrogations in this case do not fit neatly into the categories c o ntemplated by the limited holdings recently issued by the Supreme Court. Specifically, given the nature of the interrogations recently considered by the Court, it has been able to decide whether those interrogations elicited testimoni a l h e arsay largely based on the existence of an ongoing
emergency. Bryant , 1 3 1 S

. Ct. at 1162 (“The existence of an emergency or the

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parties’ perception that an emergency is ongoing is among the most important circumstances that court must take into account in determin i n g whether an interrogation is testimonial

. . . .”). For instance, in Davis the Court was able to decide the two cases before it primarily by di s ti n gui s hi n g b e tween interrogations intended “to enable police assistance to meet an ongoing emergency” and those intended to “establish or prove past events potentially relevant to later criminal prosecution” in the absence of an ongoing emergency: Statements are nontes t i m o n ial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to mee t a n o ngoing emergency. They are testimonial when the circumstances objectively indicate that th e r e is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
547 U.S. at 822. Here, however, we cannot decide whether the declarant’s statements were testimonial based primarily on the existence vel non of an ongoing emergency. 4 Unlike the declarant’s statements in Bryant or in the two cases decided in Davis , t he primary purpose of the interrogations in this case was neither to “enable police assistance to meet an ongoing emergency” nor to “establish or prove past

eve n t s p o t entially relevant to later criminal prosecution.” Id. Rather, the
pri m ary p urpose of the interrogation was to gather information necessary for the police t o respond to a report of ongoing criminal activity. Although it does
appear that the declarant contemplated t h a t h is call could lead to a later criminal p r o s e c u t i o n, he was not making his statements “to establish or prove past events potentially relevant to later criminal pros e c u t i o n .” Id. (emphasis

We s im ilar ly c annotd ecid e t his c ase bas ed pr edo mi nantl y on wh ethe r a r eas onable 4 per so n in the declar ant’ s posit ion wo uld have belie ved that ther e was an ongoing emer gency dur ing t he inte rro gation s. See Brya nt , 131 S. Ct

. at 1157 n.8. 8 Case: 09-40896 Document: 00511954949 Page: 8 Date Filed: 08/13/2012No. 09-40896

a d ded). Acknowledging that we must apply the reasoning in the Sup r e m e Court’s recent precedents to this slightly different context, we conclude that the declarant’s statements were not t e s t imonial; under the totality of the circum s t a nces, the primary purpose of the interrogation was not to create an out-of-court substitute for trial testimony. Bryant , 131 S. Ct. at 1155. We begin our analysis by considering whether the primary purpose of the 911 operators’ interrogations was to “enable police assistance to meet an ongoing

em e rgency,” which would render the declarant’s resulting statements nontestimonial. Davis , 547 U.S. a t 8 2 2 ; see Bryant , 131 S. Ct. at 1156 (same). To make this primary purpose determination, “w e o bj e ctively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.” Bryant , 131 S. Ct. at 1156. First, we ex a m i n e the objective facts regarding the “circumstances in which an encounter occurs—e.g. , at or near the

scene of the crime versus at a police station, during an ongoing emergency or afterwards.” Id. Then we objectively evaluate the “statements and actions of the parties” to determine “the purpose that reasonable participants would have had,

as asce r t ained from the individuals’ statements and actions and the circumstances in which the encounter occurred.” Id. “The existence of an ongoing emergency [or the parties’ perception of an ongoing emergency] is relevant to determini n g the primary purpose of the interrogation because an emergency focuses the participant s o n s o m ething other than ‘proving past events potentially relevant to later criminal prosecution.’” Id. at 1157 (c itation omitted). Instead, the parties’ belief that there is an ongoing
emergency “focus e s them on ‘end[ing] a threatening situation.’” Id. (citation omitted). Determining whether the parties believed that an emergency existed and

was ongoing during an interrogation “is a highly cont e xt-dependent inquiry.” Id. at 1158. When making this assessment, it is important to consider the “zone of

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potential victims” presented by the relevant activity. Id. For cases “involving threats to public safety,” our “ a s s e s sment of whether an emergency that threatens the police and the public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because t h e threat to the first responders and public may continue.” Id. (cita tions omitted). Similarly, “the duration and scope of an emergency may depend in part on the type of weapon employed.” Id. ; see id. at 1164 (noting, in a case involving a gun, “the implausibility, at least as to certain weapons, of construing the emergency to last only precisely as long as the violent act itself”). An objective evaluatio n o f t he circumstances in which the 911 interrogations occurred and the statements and actions of the parties leads us to conclude that, at least by the time of the second 911 call, the primary purpose of the interrogation was not to enable police assist a n c e t o m eet an ongoing
emergency. The objective circumstance s o f the two 911 interrogations entail an anonymous 911 caller reporting on g o i n g street-level drug trafficking to the
po l i c e
. According to the caller, Polidore was sitting on the steps of a nearby apartment complex, running in and out of the complex, and se lli ng crack cocaine. The caller told the operator that Polidore “totes a gun,” but there is no evidence suggesting that the caller knew the defendant was carrying a gun on the night in question. The caller appears to have made the first call while inside a nearby

5 building because he told the operator that he “could go back out there and get” Polidore’s license plate number. Between the first and second call s , t h e c a ller
appears to have gone outside and approached Polidore’s car because he informed the second 911 operator that Polidore was stor i n g the “dope” in “a side door panel,” that he had seen Polidore put drugs in the door panel, and that he “could

Thep ort ion of the fir stc all cont aining this s tat em ent wa s not playe d to the jury. 5
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see [the dope] right now.” It is also worth noting that the City of Beaumont had imposed a curfew at the time of the calls due to a recent hurricane. The Supreme Court has not applied its “ongoing emergency” analysis to

a similar case: i.e. , where a 911 caller reports an ongoing drug trafficking crime and asks the police to come stop it. But we do not need to categorically analyze the circumstances under which a drug trafficking crime can cons t i t u t e an “ongoing emergency” in order to decide the issue in this case. Rather, although

we note that similar circumstances could in some cases give rise to a 911 interrogation that has a primary purpose of enabling police assistance to meet

an ongoing emergency, see Unit e d States v. Ibarra-Sanchez , 199 F.3d 753, 761 (5th Cir. 1999) (holding, in another context, that “[r]arely are concerns for officer safety more paramount than during the stop of a vehicle s u s p e c t e d of transporting drugs”), the statem e n t s and actions of the 911 caller during the second call dispel any notion that, by that t i m e , t he primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. The Court has held that statements made on 911 calls are ordinarily not testimonial because “[a] 911 call

. . . and at least the i n itial interrogation conducted in connection with a 911 call, is ordinarily not designed primarily to establish or prove some past fact, but to describe current c i rcumstances requiring police assistance.” Davis , 547 U.S. at 827 (internal quotation marks omitted). The Court qualified this holding, however, by concluding that where

a declarant’s “statements were neither a cry for help nor the prov i s i o n o f information enabling officers immediately t o end a threatening situation, the fact that they were given at an alleged crime scene and were ‘initial inquiries’ is immaterial.” Id. at 832. Here, even if the caller’s s t a t e ments on the first 911 c all were responses to “initial inquiries” that were necessary to inform the responding officers what they n e e d e d t o know in order to “assess the situation, the threat to their own

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safety, and possible danger to the [public],” the caller’s statements on the second call were “neither a cry for help nor the provision of information enabling officers immediately to end a threatening situation.” Id. (emphasis added); see id. at 828 (holding that the primary purpose of an interrogation can evolve once the initial purpose has been achieved). For instance, during the second call, the caller asked the operator on two

o c c a s i o n s to tell the police not to arrest Polidore until he left his location ne a r the apartment complex. Although the caller’s request to allow Polidore to leave 6 the a r e a b efore his arrest reflects an understandable desire to remain
anonymous, it also shows that the c a l l e r was not requesting immediate assistance to end a threa t e n i ng s ituation

. When a 911 inter rogation “elicit[s] statements

. . . necessary to be able to resolve [a] present emergency,” Davis , 547 U.S. at 827, the 911 caller does not ask the operator to tell the police to wait to arrest a suspect until he voluntarily leaves the scene of the reported activity. Cf. United States v. Thomas , 453 F.3d 838, 844 (7th Cir. 2006) (holding that a 911 caller’s statements were nontestimonial when the caller stated that “[t]here is somebody shot outside, somebo d y n e eds to be sent over here, and there’s somebody runnin’ around with a gun, somewhere”); United States v. Arnold , 486 F.3d 177, 189 (6th Cir. 2007) (en banc) (“The fear that the district court noted in Gordon’s voice communicated that she was scarcely concerned with testifying to anything but simply wa s s e eking protection from a man with a gun who had killed before and who had threatened to kill again.”). Moreover, the fact that the 911 caller placed a second call to the operator only to i n f o r m t h e police that Polidore was storing drugs in a door panel of his vehicle further establishes that,

The call er st ated : (1) “ But I w ant [t he pol ice] t o d o i t wh en they leave here be caus e 6 he’s f or sur e go t it in the carbecaus e he does n’tknowthat I was the one thatc alledbe caus e I wa s the only one se en it[ ;] ” and (2) “[b]ut wo uld you tel l [t he pol ice] not to do it here ? Cause I do n’tw ant him t o t hinkt hat I w as the one tol d wh en he pull s off goi ng d ow n t he st ree t. ” 12 Case: 09-40896 Document: 00511954949 Page: 12 Date Filed: 08/13/2012No. 09-40896

by the time of the second call, th e p r imary purpose of the interrogation had evolved beyond the information “needed to address the exigency of the moment.” Davis , 547 U.S. at 828 (citation omitted). In s u m , an objective examination of the 911 caller’s “statements and

a ctions” does not indicate that “the primary purpose of the interrogation” w a s to “enable police assistance to meet an ongoing emergency.” Bryant , 131 S. Ct. at 1156 (internal quotation marks and citation omitted). I n p articular, the caller’s statements and actions during the second 911 call r e v eal 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, ” a s t h e Supreme Court has presently defined the term

. I d

. a t 1157 n.8. Between the first and the second call, the caller appeared to have (1) m o v e d to a location where he could see Poli d o r e p l a c e drugs in a side door panel of his car and then (2) approached Polidore’s vehicle to a p o s i t i o n where he could see the drugs in the side door panel. As stated previously, the c aller asked the operator on two occasions

7 during the second call to wait to arrest Polidore until he left the apartme n t 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 though t t h a t the situation const i t u ted an emergent threat to himself, the public, or responding officers. See id. at 1158 (“An assessment of whether an emergency that threatens the police and public is ongoing cannot narrowly focus on whether the threat solely to the first victim has been neutralized because the th r eat to the first responders and public may continue.”); id. (“[W]hether an emergency exists

The call er st ated , “[h]e ’s got the dop e in the sid e doo r pane l.” He then ask ed the pol ice 7 to wa it to a r r e s t P o l i d o re until he lef t the sc ene, expla ining “he’ s for sur e got it in the car ‘ca use he d idn’ t kn owI wa s the one call ed ‘ca use I the only one se en it. ” When the ope rat or ask ed the callerhow he was able to see the dr ugs, the calle r res pond ed, “I seen him put it in ther e. I cans ee it rightno w. ” 13 Case: 09-40896 Document: 00511954949 Page: 13 Date Filed: 08/13/2012No. 09-40896

and is ongoing is a highly context-dependent inquiry . ”) (citation omitted). Accordingly, we conclude tha t the primary purpose of the 911 operator’s interrogation, at l e a s t during the second 911 call, was not “to enable police assistance to meet an ongoing emergency.” Davis , 547 U.S. at 822. However, this conclusion is not “dispositive of the testi m o n i al inquiry.” Bryant , 131 S. Ct. at 1160; see id

. ( “ [W] h ether an ongoing emergency exists is

s i m p ly o n e f

ac to r

—alb e it an important factor—that informs the ultimate i n quiry regarding the ‘primary purpose’ of an interrogation.”). In Bryant , the Court specifically noted that “there m a y b e other circumstances, aside from ongoing emergencies, when a s tatement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” Id. at 1155. We conclude that the 911 caller’s statements in this case were primarily procured for such a purpose. Here, the declarant ca l l e d 911 to report ongoing street-level drug trafficking and to request that the police be dispatched to arrest Polidore while he had crack cocaine in his possessio n
. T hus, unlike the interrogations in Crawford and Hammon , which produced testimonial statements, the declarant 8 in this case was not “describing past events.” Davis , 547 U.S. at 827 (citation 9 omitted) (emphasis added); see Hammon , 547 U.S. at 829 (holding that “[i]t is entirely clear from the circumstances that the interrogation was part of an investigation into possibly criminal past conduct”); id. at 830 (distinguishing the interrogation i n H

ammon from that in Davis because the interrogator in Hammon “was not seeking to determine (as in Davis) ‘ w h a t is happening,’ but rather ‘what happened’”). The primary purpose of the 911 interrogations in this

In Da vi s , the Court als o dec i ded Ha mm on v. India na , 547 U. S. 813, 829–32 (200 6). 8
This is tru e at leas t for the por tion s of the call s that we re playe d to the jury. In 9 por tio ns of the call s r e d a cte d fr om the rec ord ings that we re playe d to the jury the call er ref err ed to pr ior cri me s of the def enda nt. 14 Case: 09-40896 Document: 00511954949 Page: 14 Date Filed: 08/13/2012No. 09-40896

case was not “to e s t ab l i s h or prove past events potentially relevant to later criminal prosecution.” Id. at 822. Accordingly, the fact that the 911 calls were “neither a c r y for help nor the provision of information enabling officers immediat e l y t o end a threatening situation,” does not necessarily render the declarant’s statements testimonial. Cf. Bryant , 131 S. Ct. at 1154–55 (internal quotation marks and citation omitted). Thus, to decide this issue, we must consid e r the circumstances under which a 911 interrogation involving reported ongoing criminal activity, absent

an ongoing emergency, has a “primary purpose of creating an out

- o f

- c o u rt 1 0 substitute for trial testimony.” Id. at 1155. However, we need not categorically address the standards that should apply in such cases in order to determine that the primary purpose of the 9 1 1 i n t e r rogations in this case was not to create a substitute for trial testimony. Specifically, given the nature o f t h e ongoing criminal activity and the caller’s request for assistance from the police, a reasonable person in the caller’s position w o uld not have thought that his statements were creating an out-of-court substitute for trial testimony. See Brown , — F.3d —, 2012 WL 2401670, at *3 (holding that testimonial statements include statements made under circu m stances “which would lead an objective witness reasonably to believe that the statement would be av a ilable f or use at a later trial”). As an initial matter, we determine that the nature of the reported ongoing

c r i m i n a l activity is relevant to determining the primary purpose of the i n t e rrogation. Here, the nature of the reported ongoing criminal

We note that our conc lus ion that thes e cir cum st an c e s d i d not pr es ent an “ongo ing 1 0
em ergenc y” is based on the Court’s cur rent pr ece dent s, wh ich may be subject to change. See Wil li a m s v
. Il li noi s , 132 S. Ct. 2221, 2242 n.13 (201 2) (no ting, wh en dis cus sin g the Court ’s pos t- Crawfor d pr ece dent s that , “[ e]xp erie nce mi ght yet sho w that the hold ings in thos e cas es sho uld be rec ons ide red for the reas ons , amo ng othe rs , expr es se d in the dis se nts the dec isi ons pr oduc ed[ ;] [t]ho se dec i s i o n s a r e not chall enged in this cas e and are to be dee me d bind ing pr ece dent s, butt hey c an a nd sho uld be dis tinguis hed on the fac ts he re” ). 15 Case: 09-40896 Document: 00511954949 Page: 15 Date Filed: 08/13/2012No. 09-40896

activity—possession with intent to d i s tribute—was such that the police could

o btain sufficient evidence to establish Polidore’s guilt simply by responding t o the call and pulling him over while he was in possession of a “large amount” of crack c ocaine. United States v. Kaufman , 858 F.2d 994, 1000 (5th Cir. 1988) (h o l d i ng that possession with intent to distribute can be proved based on a defendant’s possession of “a larger quantity than an ordinary user would possess for personal consumption”); see United States v. Hernandez - B e ltran , 867 F.2d 224, 226–27 (5th Cir. 1989) (same). Under these circumstances, a reasonable
person in the 911 caller’s position would have concluded that his statements

were not being prepared for use at t r i a l: either the police would promptly respond and arrest Polidore with a significant amount of crack cocaine in his possession, thereby giving the authorities sufficient evidence to conv i c t t h e defendant of a crime without the caller’s statements, or the police would not arrive in time to arrest Polidore and the caller’s statements would have been of little use. We do not mean to suggest that the caller knew the elements of the charged offense, bu t t he caller in this case clearly understood that the police’s arrest of Polidore in possession of a “large amount” of c r a c k c o c aine would be sufficient to prove a criminal offense. In sum, due to the nature of the reported

cr i m i n a l activity—an ongoing possession offense—a reasonable person in the caller’s position would not have thought that h i s s t atements (a) reporting ongoing street-level drug trafficking to 911 and (b ) a s k i n g that the police be promptly dispatched to ensure Polidore’s arrest while in possession of crack cocaine, were being taken as an “out-of-court sub s t i t u t e for trial testimony.” Bryant , 131 S. Ct. at 1155. 1 1

Contr a r y t o t h e dis se nt’ s ass ert ion, we have not “all but dec lare d an end to 1 1 Confr onta tio n Claus e app licabilit y to dec larat ions that rep ort ongoing cri me s. ” Di ss ent at 2. Inst ead , our hold ing is lim ite d to st atem ents wh ere a dec laran t requ es ts i m m e d i a t e pol ice
ass ist ance to st op an ongoing cri me wh os e natur e is suc h that a reas onable per so n wo uld not have thou ght that his st atem ents we re being t ak en as an “out -of-c ourt sub st itut e for tri al 16 Case: 09-40896 Document: 00511954949 Page: 16 Date Filed: 08/13/2012No. 09-40896

Moreover, although the Court implied in Davis that a 911 call “provid[ing]

a n a r rative report of a crime absent any imminent danger” would yield testimonial statements, 547 U.S. at 827, the calls in this case do not meet that description. The 911 caller did not merely provide a narrat iv e r e port of the crime “for the purpose of establishing or proving some fact.” Bryant , 131 S. Ct. at 1153 (citation omitted). Rather, the caller reported an ongo i n g d r ug trafficking crime to the police, gave the police the requisite information to stop that offense, and asked for the police to be promptly dispatched to stop the crime as it continued. See United States v. Davis , 666 F.2d 195, 199 (5th Cir. Unit B 1982) (holding that possession with intent to distribute is a continuing offense). Although the situation did not present an “ongoing emergency ,” the caller was nevertheless “seekin g a id, not telling a story about the [present] or the past.” Davis , 547 U.S. at 828, 831 (emphasis added). 1 2 An objective analysis of the statements o f t h e 911 operators and the statements and actions o f th e c aller confirm that the purpose of the interrogation

w a s n ot to elicit statements for use at trial. Bryant , 131 S. Ct. at 1155. T h e questions posed by the 911 operators reflect an intent to gather the information responding officers wo u l d need to investigate and, if necessary, stop reported ongoing street-level drug trafficking; the operators’ questions were not intended “simply to learn (as in Crawford) what had happened in the past,” nor posed in

a manner that the caller would “necessarily ha[ve] prosecution in mind when []he answer[ed].” Id. at 1160–61 (citation omitted).

tes tim ony.” Id.

To be sur e, cer tain st atem ents mad e by the 91 1 c a l l e r did conc ern pas t cri mi nal 1 2 act ivity com mi tte d by Polid ore
. Ho we ver, the dis tri ct cour t pr ope rly red act ed thos e por tio ns of the call s and did not play them at tri al. See Da vi s , 547 U. S

. a t 8 2 9 ( n oti ng that cour ts “s houldr eda ct or exclud e t he por tio ns of any s tat em ent thathavebe com e t es tim onial” ). 17 Case: 09-40896 Document: 00511954949 Page: 17 Date Filed: 08/13/2012No. 09-40896

Similarly, although the 911 caller appeared to h av e understood that his comments would start an investigation that could lead to a criminal prosecution, the primary purpose of his stateme n t s was to request police assistance in stopping an ongo i n g crime and to provide the police with the requisite information to achieve that objective. Like a s t a t e m ent made to “resolve an ongoing emergency,” t h e caller’s “purpose [was] not to provide a solemn declaration for use at trial, but to bring to an end an ongoing [drug trafficking crime],” Williams v. Illinois , 132 S. Ct. 2221, 2243 (2012) (citing Bryant , 131 S. Ct. at 1155), even though the crime did not constitute an “ongoing emergency.” See i d. The 911 caller “simply was not acting as a witness; []he was not testifying. What []he sa i d w a s n o t ‘a weaker substitute for live testimony’ at trial.” Davis , 547 U.S. at 828 (citation omitted). In o t h er words, the caller’s sta t e m e n ts were not “ ex parte communication[s]” that created “evidentiary products” that “aligned pe r f e ctly with their courtroom analogues.” Id. As in Da v i s , “[n]o ‘witness’ goes into court” to report that a man is currently s e l l i n g drugs out of his car and t o a s k t h e police to come and arrest the man while he still has the drugs in his possession. See id. (“No ‘witness’ goes into court to proclaim an emergency and seek help.”); see also United States v. Brun , 416 F.3d 703, 707 (8th Cir. 2005) (“A 911 call is usually made because t h e c a l l er wants protection from an immediate danger, not because the 911 caller e x p ects the report to be used later at trial with the caller bearing witness—rather, there is

a c l o a k of anonymity surrounding 911 calls that encourages citizens to make emergency calls and not fear repercussion.”) (citation omitted). 1 3

We als o conc lude that the rela tive info rm alit y of the tw o inte rro gation s sup por ts our 1 3 hold ing that the call er lack ed tes tim onial inte nt. Brya nt , 131 S. Ct. at 1160. The ques tio ning
occ urr ed bef

ore the pol ice arr ived and pr oce ede d in a rela tivel y “d iso rganize d fas hion, ” as the call er inte rru pt ed the ope rat ors ’ ques tio ns to (a) p r o v i d e add itio nal info rm atio n and (b) att em ptto ensu re thatthe poli ce w ouldnot arre stPolido re untilaf terhe le ftt he apar tm ent com ple x. Thes e fac ts “m ak e t h i s cas e dis tinguis hable fr om the for mal st atio n-ho use inte rro gationin Crawfor d .” Id. ( cit atio n o mit ted). 18 Case: 09-40896 Document: 00511954949 Page: 18 Date Filed: 08/13/2012No. 09-40896

The dissent, citing one of o u r s i ster circuits and an influential commentator, contends that statements made to the authoriti e s w i th a full understanding that t h e a uthorities will use them to investigate and prosecute

a crime are testimonial, regardless of whether those sta t e m e n t s concern an ongoing or past crime. Dissent at 2; see United States v. Cromer , 389 F.3d 662, 674 (6th Cir. 2004) (holding that “[s]tatements ‘made to the authorities who will

use them in i nv e s t i g a t i n g and prosecuting a crime,

. . . made with the full understanding that they will b e s o u s ed,’ are precisely the sort of accusatory

s t at e m e nt s th e C o nf

rontation Clause was designed to address”) (quoti n g Rich ar d D. Friedman, Confrontation: The Search for Basic Principles , 86 G E O

. L.J. 1011, 1025 (1998)). That may w e l l b e a useful general standard to employ when considering whether a given statement to authorities was testimonial. Bryant , 131 S

. C t

. a t 1166 (noting that certain circumstances can render a statement testimonial if the declarant was “focused

. . . on the possible future prosecutorial use of his statements”). Under the limited circumstances of this case, however, we conclude that the caller’s statements were nontestimonial even if the caller clearly understood that his call would “initiate investigative and prosecutorial machinery.” United States v. Hadley , 431 F.3d 484, 506 n.17 (6th Cir. 2005) (citation omitted). As

we have previously discussed, the declarant (1) called 911 to report that Polidore

was selling drugs while sitting on the steps of an apartment building and storing the dru g s in his car, (2) asked the operator to dispatch the police to arrest Polidore while he was still in possession of c rack cocaine, and (3) asked the operator to tell the police not to arrest Polidore until he voluntarily drove down the street. A reasonable person in the caller’s position would not have thought his statements were being prepared for use at trial; thus, we conclude that the

19 Case: 09-40896 Document: 00511954949 Page: 19 Date Filed: 08/13/2012No. 09-40896

primary purpose of the 911 calls was not to create an out-of-court substitute for trial testimony. Bryant , 131 S. Ct. at 1155. 1 4 Accordingl y , t h e 911 caller’s statements did not constitute testimonial hearsay, and the admissibility of the statements was “the concern of

. . . federal rules of evidence, not the Confrontation Clause.” Id. B Polidore also objected to the 911 recordings at trial on the grounds that they contained hearsay; accordingly, we review the court’s decision to admit the recordings over his objectio n f o r a n abuse of discretion. United States v. Watkins , 591 F.3d 780, 786 (5th Cir. 200 9). Hearsay is “a statement, other than one made by the d e clarant while testifying at the trial or hearing, offered in evidence to p r o v e t h e truth of the matter asserted.” Id. (citation omitted); see F E D

. R. E V I D

. 801 (defining hearsay). “Testimon y n o t u s e d t o establish the truth of the assertion

. . . ‘does not fall under the proscriptions against the use of hearsay.’” Watkins , 59 1 F

. 3 d a t 786 (quoting United States v. Vizcarra–Porras , 889 F.2d 1435 , 1 4 3 9 ( 5 th C ir
. 1 9 89)). 1 5

Contr ary to the dis se nt’ s ass ert ion, we do not hold that a st atem ent i s 1 4 “non tes tim onial so lely on the bas is thatitp rom pt s pol ice act ion. ” D iss ent at2. Rather, t he natur e o f the rep ort ed ongoing cr im inal act ivity and the fac t thatt he call er ask ed the pol ice to im me diat ely res pondt o e nd the ongoing off ens e a re cri tic al com pone nts of ou r analys is.
We als o do not inte nd to “ac cele rat [e] the dis man tlin g of Crawfor d .” Id. at 1. Inst ead , we have me rely app lied the r e a s oning fr om the Sup rem e Court ’s rec ent pr ece dent s inte rp ret ing t he Confr onta tio n Cla use t o ad iff ere nt cont ext.
Sim ilar ly, we note that “th e Confr onta tio n Claus e ‘do es not bar the use of tes tim onial 1 5 st atem ents for pur pos es othe r than es tabl ish ing the tru th of the mat ter ass ert ed. ’” Wil li am s , 132 S. Ct. at 2235 (quo ting Crawfor d , 541 U. S. at 59–60 n.9) ; see Uni ted States v. Ho lm es , 406 F.3d 337, 349 (5t h Cir. 2005) (s ame ). “Ins tead , to cons tit ute a Confr onta tio n Claus e violat ion, ‘th e st atem ent mus t be use d as hear say—in othe r wo rd s, it mus t be off ere d for the tru th of the mat ter ass ert ed. ’” Uni ted States v. Da vi s , 577 F.3d 660, 670 (6t h Cir. 2009) (c itat ions om itt ed) ; see Wil li am s , 132 S. C t

. a t 2 2 2 8 (h old ing that an expe rt’ s “te st im ony d[id] not violat e the Confr onta tio n Clau se b ec au se th at provisi on has no app lica tio n to out- of- cour t st atem ents that
are not off

ere d to pr ove the tru th of the mat teras se rte d” ). 20 Case: 09-40896 Document: 00511954949 Page: 20 Date Filed: 08/13/2012No. 09-40896

Federal Rule of Evidence 802 bars hearsay testimony unless a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court provide otherwise. Se e United States v. Moore , 748 F.2d 246, 248 (5th Cir. 1 6 1984) (“Hearsay is generally inadmissible unless it fits w i t h i n one of the exceptions listed in Fed. R. Evid. 803 and 804.”) (citation omitted). At trial, the district court overruled Polidore’s hearsay objection, finding that the statements in the 911 calls were being offered for what prompted the officers to go to the location and investigate in the first place, not for the truth

o f t he matter asserted. The district court alternatively found tha t t h e statements, if hearsay, were admissible as an excited utterance or as a statement of the caller’s then existing mental, emotional, or physical condition. SeeF E D

. R. E V I D

. 803(2),(3). On appeal, the Government maintains that the 911 calls were not offered for t h e t r u th of the matter asserted but instead to “explain the dispatch of the officers to Polidore’s location, their focus on the PT Cruis e r , the subsequent discovery of crack cocaine, their willingness to talk to a person on the scene that identified himself as the caller, and their belief that the suspect would return to the PT Cruiser.” Alternatively, the Government asserts that the present-sense impression exception to the hearsay rule applies because the statements in the 911 calls “were made contemporaneous[ly] with the caller’s observations of the events that he reported to the dispatcher” and beca u s e “the scene of the crime was consistent with that information.” We need not address whether the Government o f f e r e d the caller’s statements for the truth of the matter asserted because we conclude that even

We note that“ [a] ne w vers ion of the Fede ral Rules of Evidenc e we nt into eff ect on 1 6 De cem ber 1, 2011 as par t of the Fede ral Rules Sty l e P r oj e c t. ” See Uni ted States v. Jea nGu err ie r , 666 F.3d 1087, 1091 n.2 (8t h Cir. 2012)

. Bec aus e c hanges m adeund er the pr oject “ar e inte nded to be st ylis tic only, ” see F E D

. R. E VID

. 801–803 advis ory com mi tte e’s note , we wi ll quot e t he newver sio n o f the Rules

. 21 Case: 09-40896 Document: 00511954949 Page: 21 Date Filed: 08/13/2012No. 09-40896

if they were hear s a y , t h e statements fell within the present sense impression exception to the rule against hearsay. Rule 803(1) provides that hearsay 1 7
statements “describing or explaini n g an event or condition, made while or immedi a t e l y a fter the declarant perceived it,” “are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness.” F E D

. R

. E V I D

. 803(1). The basis for this hearsay exception “relies on th e contemporaneousness of the event under consideration and the statement describing that event. Because the two occur almost simultane o u s ly, there is almost no ‘likelihood of [a] deliberate or conscious misrepresentation.’” Rock v. Huffco Gas & Oil Co. , 922 F.2d 272, 280 (5th Cir. 199 1) (citations omitted). Here, the caller made his statements to 911 as he was observing Polidore’s actions or shortly thereafter. For instance, less than ten minutes after placing the first call, the caller observed Polidore place drugs in a side door panel of his vehicle and placed a s e c o n d c all while he was still observing the drugs “right now.” Because (1) the caller’s statements described and explained events that he personally w i t n e s sed and (2) the caller made the statements contemporaneously with h i s observation of the events— i.e. , while he was observing the events or very soon thereafter—we hold that the statements were admissible as present sense impression under Rule 803(1). Id. (citat i ons omitted); see United States v

. Jackson , 204 F.3d 1118, 1999 WL 1330689, at *8 (5th Cir. Dec. 17 1999) (unpublishe d) (h o l ding that a district court did not commit reversib l e e r r o r by admitting a tape and transcript of 911 c alls, which

Ho we ver, we note that as a pr act ical mat ter , the 911 rec ord ings we re adm itt ed for 1 7 all pur pos es in fr ont of the jury: that is, the jury wa s never info rm ed of the lim ite d pur pos e for wh ich the Go vernm ent inte nded to off er the rec ord ings. De fen se couns el never requ es ted that the jury be so info rm ed or requ es ted that the dis tri ct cour t give the jury a lim itin g ins tru cti on unde r Fede ral Rule of Evidenc e 105. See Sav oie v. Otto C andi es, Inc. , 692 F.2d 363, 370 (5t h Cir. 1982) (ho ldi ng that wh en a par ty fai ls to requ es t a Rule 105 lim itin g ins tru cti on, “s im ply having tak en the posi tio n that the evidence wa s adm iss ible for no pur pos e wh ateve r and the jury sho uld be ins tru cte d to tot ally dis reg a r d i t f o r a ny pur pos e[, ] [a] ny err or in this regar d
wa s acc ord ingly w aived”) (inte rnal cit atio n o mi tte d)

. 22 Case: 09-40896 Document: 00511954949 Page: 22 Date Filed: 08/13/2012No. 09-40896

were made seconds after the caller s e s c a p e d f rom the trunk of a car, and the Government had argued, in part, that the calls co n t a i n ed present sense impressions). 1 8 Accordingly, we conclude that the district court did not ab u s e its discretion by admitting the 911 calls into evidence. 1 9 III For the foregoing reasons, bot h t h e conviction and sentence are AFFIRMED.

We note thatPolido re cou ld have clai me d on app eal that the dist ric t cour t err ed by 1 8 adm itt ing the 911 rec ord ings beca use thei r pr obat ive value wa s sub st antia lly outw eighed by
a danger of unfa ir pr ejudi ce pur sua nt to Fede ral Rule of Evidenc e 403. Becaus e the 911
rec ord ings d i r ect ly im pli cat ed him in the allege d cri me s, Polid ore coul d have pot enti ally argued that the dis tri ct cour t’s dec isi on to adm it the evide nce cons tit uted rever sib le err or. See Uni ted States v. Carr il lo , 20 F.3d 617, 620 (5t h Cir. 1994) (“ The mo re dir ect ly an out- of- cour t dec larat ion im pli cat es the defen dant , the greater the danger of prejud ice. Convers ely, wh en the st atem ent doe s not dir ect ly im pli cat e the def enda nt, the pr obat ive value outw eighs the pr ejudi cial eff

ect .” ) (c itat ions om itt ed)

. But altho ugh Polid ore rais ed an objec tio n unde r Rule 403 at tri al, he has fai led to brie f suc h a cla i m o n app eal, ther eby wa iving it. See Mc Go wa n v. T hal er , 675 F.3d482 , 498 (5t h Cir

. 2012) (hold ing t hat unbri efe d iss ues ar e w aived).
Polid ore has als o fil ed, pro se , a mo tio n fo r t h e c o u r t t o cons ide r wh ethe r he wa s 1 9 deni ed the right to couns el of his choi ce in the dis tri ct cour t. Ho we ver, we deny Polid ore ’s pro se mo tio n as unauth orize d. See 5 T H C IR

. R. 28.6 (“ Unle ss sp ecif ical ly dir ect ed by cour t ord er, pro se m o t i o n s , b riefs or cor res pond ence wi ll not be fil ed if the par ty is rep res ente d by
couns el. ”)

. 23 Case: 09-40896 Document: 00511954949 Page: 23 Date Filed: 08/13/2012No. 09-40896

Leslie H. Southwick, Circuit Judge, dissenting: I a gree with the majority that Confrontation Clause guidance from the Supreme Cou r t i s u n dergoing change. Where I disagree is that I believe we should not reach a conclusion that reduces the protections o f t h e Sixth Amendment further than the Court has thus far permitted. T h e majority is accelerating the dismantling of Crawford v. W as h i ngton , 541 U.S. 36 (2004). That is neither our role nor a desirable result. The m aj o r i t y extends the ruling of the Supreme Court in Michigan v. Bryant , 131 S. Ct. 1143, 1160 (2011). “[T]he statements and actions of both the declarant and interrogators provide objective evidence of the primary purpose of the interrogation.” Bryant , 1 3 1 S. Ct. at 1160. Polidore argues that the primary purpose of the telephone caller’ s s t atements was testimonial because the caller wanted police to stop “all this drug activity.” The de f e n d a n t also
argues that “[t]he inquiry by the operator as to who is selling drugs and the type of drug is only relevant to later criminal prosecution.” See Davis v. Washington , 547 U.S. 813, 822 (2006). The declarant had witnessed frequent dru g dealing. His statements taken in context of the entire 911 c all suggested an intent to further a later criminal prosecution. For example, the declarant stated he was “trying to be anonymous

a n d get you all to get these drug dealers from over here.” The decla r a n t ’ s 1 primary purpose may have been stopping “all this drug activity over off Sweetgum” by having the defendant arrested without the declarant’s needing to identify himself. It is not enough that the 911 operator wanted to assess the situation and obt a i n a s m uch information as possible about Polidore. The operator was aiding the first responders. Bryant , 13 1 S

. C t

. at 1161. The declarant’s motives, not those of the operator, create the problem here.

This p artof

t he callw as not playe d fort he jury. 1
24 Case: 09-40896 Document: 00511954949 Page: 24 Date Filed: 08/13/2012No. 09-40896

“Statements ‘made to the authorities who will use them in investigating and prosecuting a crime,

. . . made with the full understanding that they will be

so used,’ are precisely the sort of accusatory statements the Confrontation Clause w a s d e s i g n ed to address.” United States v. Cromer , 389 F.3d 662, 674 (6 t h C i r. 2004) (quoting Richard D. Friedman, Confrontation: The Search for Basic Principles , 86 Geo. L. J. 1011, 1025 (1998)) (omiss i o n in original). “One

can imagine the temptation that someone who b e ars a grudge might have to volunteer to police, truthfully or not, information of the commission of a crime, especially when that person is assured he will not be subject to confrontation.” Id. at 675. The majority rejects the application of this rationale on the basis that the declarant knew his call would prompt police action. Yet surely that is the usual reason for 911 calls. I read Davis to require more than a call “to provide

a narra t iv e report of a crime absent any imminent danger”; what that opinion relied on was the fact the “ c a l l w a s p l a inly a call for help against bona fide physical threat.” Davis , 547 U.S. at 827. The majority reads more recent caselaw to reject this guidance. I would not. The majority has taken from Bryant a holding that the lack of an ongoing
emergency does not make a declarant’s statement per se testimonial, and all but declared an end to Confrontation Clause applicability to declarations that report

o n g o i n g c r i mes. While I agree that Bryant requires we look at more than th e absence of an ongoing emergency, I do not see a ba s i s f or finding a statement nontestimonial solely on the basis that it prompts police action. Indeed, this caller gave some indications of his animus speci f i c ally towards Polidore and towards drug dealers generally. Confrontation is the constitutional protection defendants have to explore known and unknown motives. With respect, I believe the majority errantly removes that needed protection here.

25 Case: 09-40896 Document: 00511954949 Page: 25 Date Filed: 08/13/2012