and Submitted November 6, 2018
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
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
Before: M. Margaret McKeown and Michelle T. Friedland,
Circuit Judges, and Fernando J. Gaitan, Jr., [*] District Judge.
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
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
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.
MCKEOWN, CIRCUIT JUDGE
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.
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
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.
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 ...