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United States v. Brown

United States Court of Appeals, Ninth Circuit

June 5, 2019

United States of America, Plaintiff-Appellee,
v.
Daniel Derek Brown, Defendant-Appellant.

          Argued and Submitted November 6, 2018

          Appeal from the United States District Court for the Western District of Washington No. 2:16-cr-00056-JCC-1 Carolyn R. Dimmick, District Judge, Presiding

          Jason B. Saunders (argued), Law Offices of Gordon & Saunders PLLC, Seattle, Washington, for Defendant-Appellant.

          Charlene Koski (argued), Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney's Office, Seattle, Washington; for Plaintiff-Appellee.

          Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr., [*] District Judge.

         SUMMARY [**]

         Criminal Law

         The panel reversed the district court's order denying a motion to suppress evidence obtained after police officers stopped Daniel Brown following an anonymous tip that a black man was carrying a gun, which is not a criminal offense in Washington State.

         The panel held that the officers lacked reasonable suspicion that criminal activity was afoot before stopping and frisking Brown. The panel wrote that the totality of the circumstances does not add up to enough: no reliable tip, no reasonable inference of criminal behavior, no police initiative to investigate a particular crime in an identified high crime area, and flight without any previous attempt to talk to the suspect. The panel was particularly hesitant to allow flight to carry the day in authorizing the stop, given that racial dynamics in our society-along with a simple desire not to interact with police-offer an "innocent" explanation of flight, when every other fact posited by the government weighs so weakly in support of reasonable suspicion.

         Concurring, Judge Friedland wrote separately to elaborate on three points: (1) the presumptive legality of carrying a concealed firearm in Washington makes this case distinguishable from Foster v. City of Indio, 908 F.3d 1204 (9th Cir. 2018); (2) to help explain why the result here is different from that in Illinois v. Wardlow, 528 U.S. 119 (2000), it is helpful to think of justification for a Terry stop as a calculus in which the factors raising suspicion must, after aggregating their relative weights, add up to reasonable suspicion; and (3) nothing in the record supports the conclusion that the officers were stopping Brown simply because he was black.

          OPINION

          MCKEOWN, CIRCUIT JUDGE

         Daniel Derek Brown, who is a black man, had the misfortune of deciding to avoid contact with the police. Following an anonymous tip that a black man was carrying a gun-which is not a criminal offense in Washington State-police spotted Brown, who was on foot, activated their lights, and pursued him by car, going the wrong direction down a one-way street. Before flashing their lights, the officers did not order or otherwise signal Brown to stop. Brown reacted by running for about a block before the officers stopped him at gunpoint.

         With no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police, we are left with little more than Brown's flight from the officers, which is not enough under the circumstances. In today's world, Justice Stevens' observations some twenty years ago are particularly prescient:

Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence.

Illinois v. Wardlow, 528 U.S. 119, 132 (2000) (Stevens, J., concurring in part and dissenting in part). Without more specific, articulable facts supporting their actions, we conclude that the officers lacked the requisite reasonable suspicion that criminal activity was afoot before stopping Brown. Accordingly, we reverse the district court's order denying Brown's motion to suppress.

         BACKGROUND

         This case began with a 911 call reporting that an unidentified resident at the YWCA claimed "they saw someone with a gun." On January 11, 2016, around 7:20 p.m., Sandra Katowitz-an employee at the YWCA in the Belltown neighborhood of Seattle-called 911, which dispatched the information to the Seattle Police Department ("Seattle Police"). Katowitz stated that "[o]ne of [her] residents just came in and said they saw someone with a gun." Katowitz never saw the gun herself. Through Katowitz, the resident described the man as a young, black man of medium build with dreadlocks, a camouflage jacket, and red shoes. The 911 dispatcher asked ...


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