United States v. Polidore

United States Court of Appeals for the Fifth Circuit · 2012 · Evidence

690 F.3d 705 (5th Cir. 2012)

Updated August 22, 2026

EvidenceConfrontation ClauseHearsay911 callsSixth Amendmenttestimonial hearsaynontestimonial statementsprimary purpose

Facts

An anonymous caller made two 911 calls reporting that Kennedy Polidore was selling crack cocaine at 2505 Sweetgum, describing his car, clothing, and location. In the second call, the caller said Polidore had put drugs in the driver's-side door panel and asked police not to arrest him until he drove away so the caller would remain anonymous. Officers went to the location, saw a red PT Cruiser, observed what appeared to be crack cocaine in plain view from outside the car, and later stopped Polidore after he entered and drove the car away. They recovered crack cocaine from the car and from beneath it, and the jury heard redacted portions of the 911 calls.

Issue

Did admission of the redacted 911 calls violate the Confrontation Clause because the caller's statements were testimonial? If not, were the statements nevertheless inadmissible hearsay, or did they fall within a hearsay exception?

Rule

Statements made during a 911 interrogation are testimonial only if, viewed objectively under the totality of the circumstances, the primary purpose of the interrogation is to create an out-of-court substitute for trial testimony. Even absent an ongoing emergency, contemporaneous 911 statements reporting ongoing criminal activity and seeking prompt police intervention are nontestimonial when a reasonable person in the caller's position would not think the statements were being prepared for use at trial. Separately, statements describing or explaining an event or condition while or immediately after the declarant perceived it are admissible as present sense impressions under Federal Rule of Evidence 803(1).

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At 11:40 p.m. in Shreveport, an anonymous caller told 911 that Nolan Price was currently selling methamphetamine from a blue sedan outside a duplex on Pine Street. The caller described Price's clothing, said customers were walking up to the car "right now," and asked officers to come before Price drove away. At trial for possession with intent to distribute, the prosecution offers the redacted recording after the caller cannot be found.

Under the majority's approach, are the caller's statements most likely testimonial?

Explanation. The governing inquiry is objective and asks whether the primary purpose of the interrogation was to create an out-of-court substitute for trial testimony. Under the majority's reasoning, even absent a classic emergency, contemporaneous 911 statements reporting ongoing criminal activity and seeking prompt police action are nontestimonial when a reasonable caller would not think the statements were being prepared for trial use. Choices B and C are too categorical, and D is wrong because the analysis assumed 911 operators can function as law-enforcement agents.