United States v. Brown, 060519 FED9, 17-30191

Docket Nº:17-30191
Opinion Judge:MCKEOWN, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Daniel Derek Brown, Defendant-Appellant.
Attorney: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.
Judge Panel:Before: M. Margaret McKeown and Michelle T. Friedland, Circuit Judges, and Fernando J. Gaitan, Jr., District Judge. FRIEDLAND, Circuit Judge, concurring:
Case Date:June 05, 2019
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Daniel Derek Brown, Defendant-Appellant.

No. 17-30191

United States Court of Appeals, Ninth Circuit

June 5, 2019

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 Katowitz specific questions about what Brown was doing with the gun. Katowitz answered that all her resident said was that "he has a gun."

Katowitz did not indicate that the resident yelled or shouted, was visibly upset by seeing the gun, or was otherwise alarmed by the gun's presence. Also, there was no indication that the man was loitering at the residence, was known at the YWCA, was harassing or threatening any residents there, or had done anything other than be seen by the resident. The resident remained in the lobby while Katowitz called 911, but on the call the resident can only be heard stating that she did not want to provide a firsthand report because she "[does not] like the police." The resident did not speak to the 911 dispatcher or the officers who responded to the call, nor did she provide her name.

While Seattle Police officers were speaking to Katowitz, two King County Sheriff's Office Metro Transit Unit ("Metro") officers heard and responded to the 911 call.1From his patrol car, Metro officer Ryan Mikulcik spotted Brown, who was on foot and matched the 911 description. Mikulcik called his partner, Curt Litsjo. Then Mikulcik began the pursuit, driving behind Brown slowly for several blocks before turning on his patrol lights and driving the wrong direction down a one-way street to follow Brown. Seeing the lights and patrol car coming from behind him, Brown ran. Mikulcik and Litsjo pursued Brown for one block before stopping him and ordering him to the ground at gunpoint. The officers placed Brown in handcuffs and found a firearm in his waistband. A further search revealed drugs, cash, and other items.

Brown moved to suppress the evidence from the searches, arguing that the officers lacked reasonable suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968). The district court disagreed and denied the motion. We reverse.

ANALYSIS

Recognizing that an officer may only "conduct a brief, investigatory stop when the...

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