Q: What’s does one call a
government argument, raised for the first time on appeal?
States v. Williams, 2016 WL 5030343 (9th Cir. Sept. 20, 2016),
decision available here.
Players: Decision by Judge Wallace, joined by Judge Kozinski
and DJ Whaley.
Hard fought appeal by D. Nev. AFPD Amy B. Cleary.
|The Honorable Judge Clifford Wallace|
Facts: A named tipster called a police hotline and reported
a suspected drug dealer, sleeping in a specific type of Ford in a particular
area. Id. at *1. At around 4:40 a.m.,
the cops blocked the parked Ford and shined a light inside. Williams sat up,
looked around, started the car, then put the car in reverse and then parked. Id. at *2. At the officers’ command,
Williams got out of the car – and then ran. Id.
He was caught and arrested: a pat search revealed crack and cash. Id. A search of the car revealed a gun. Id.
Williams was charged with federal gun and
drug offenses. Id. He filed – and won – a suppression motion, and the
Issue(s): “The government . . . argues that the district court
erred in concluding that the officers lacked reasonable suspicion to conduct an
investigatory stop.” Id. at *3.
the principles articulated in White
and Navarette, we hold that [the]
officers . . . had reasonable suspicion to stop Williams based on the
information they possessed and the tip’s reliability.” Id. at *3. “[T]he officers acted reasonably when they blocked in
the driver with their police car, turned on their police lights, and one of the
officers drew his gun.” Id. at *4.
Of Note: The heart of this case is tipsters, and their role
in creating reasonable suspicion. Id.
at *3. Judge Wallace employs two Supreme Court decisions to find reasonable
suspicion here: Navarette v. California,134 S.Ct. 1683 (2014) (reliability of tips and reasonable suspicion), and Alabama v. White, 496 U.S. 325 (1990) (tips
creating reasonable suspicion.) Id.
As with most things Fourth, Williams
is a fact-bound inquiry. In this case, the call was from an identified tipster, the caller described
the car’s make and location, the tipster made specific criminal allegations,
Williams reacted suspiciously when the cops arrived, and it was a high-crime
area. Id. at *4.
The Ninth decision upholding
this stop rests on layers of supporting facts for the government. Don’t let an AUSA
cite Williams as a blank check for
tipster stops – the facts of the case are ripe for distinction.
How to Use:
Reasonable suspicion for the initial stop
was the first issue in the case: PC for the arrest, the second. Williams also
argued that the cops lacked probable cause to arrest (and thus, search) him. Id. at *4.
For the first time, on appeal, the government argued that a Nevada “obstruction”
statute created probable cause when Williams ran. Id. at *5.
There is, of course, “a ‘general rule” against
entertaining arguments on appeal that were not presented or developed before
the district court.” Id. at *5. Judge Wallace, however, notes that the government
resisted the probable cause argument in the district court. The government’s new
“Nevada statute” theory before the Ninth was, the Court assures us, just “a
more precise argument on appeal.” Id.
This is an
aggravating second bite of the apple for the government in this case, but store
the decision away. It is a useful “sauce for the goose” citation for our own “more
precise [defense] arguments” before the Ninth.
Reading: At least the Williams tipster identified himself. In the 5-4 Navarette case, Justice Thomas tolerated
reasonable suspicion developed from an anonymous
call. 134 S.Ct. at 1688-89 (“Even assuming for present purposes that the 911
call was anonymous . . . we conclude that the call bore adequate indicia of
reliability for the officer to credit the caller's account.”) For a vigorous
critique of Navarette, see Whither Reasonable Suspicion: The Supreme
Court’s Function Abandonment of the Reasonableness Requirement for Fourth
Amendment Seizures (2016), available here, or on Westlaw at 53 Am. Crim. L. Rev.
Labels: Anonymous Tips, Appellate Waiver, Fourth Amendment, Fourth Amendment Seizure, Probable Cause - Arrest, Reasonable Suspicion, Waivers, Wallace