Case o' The Week: Anon, anon - Vandergroen, Anonymous Tips, and Reasonable Suspicion

 An anonymous tip does not establish reasonable suspicion. 

(But three anonymous tips might).

  United States v. Vandergroen, 2020 WL 3737376 (9th Cir. July 7, 2020), decision available here.

Players: Decision by visiting D.J. Rakoff, joined by Judges Friedland and Bennett.

  Hard fought appeal by N.D. Cal AFPDs Jerome Mathews and Robin Packel.

Facts: A bar employee (“Witness 2”) called 911 and reported that three anonymous bar patrons had seen a man with a pistol on him. Id. at *1. The bar employee identified himself. The caller described the man and the man’s movements, and then described the man running to a car. Id. at *2. The caller said that no one had seen the man fighting. Id. Cops then stopped a car driven by the man, Vandergroen, and found a gun. Id.

  Vandergroen was charged with being a felon-in-possession. When his motion to suppress was denied, he went through a stip-facts bench trial and appealed. Id.

Issue(s): “[ ] Vandergroen argues that evidence discovered in the course of his arrest should be suppressed because the police did not have reasonable suspicion to stop him in the first instance. Under the Fourth Amendment, an officer may conduct a brief investigative stop only where she has a particularized and objective basis for suspecting the particular person stopped of criminal activity, commonly referred to as ‘reasonable suspicion.’ . . . While a tip such as the 911 call may generate reasonable suspicion, it can only do so when, under the ‘totality-of-the-circumstances,’ it possesses two features. . . . . First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop.” (internal quotations and citations omitted).

Held: “In short, the 911 call in this case was both reliable and provided information on potentially criminal behavior. Witness 2 was reliable as an identified caller using an emergency line, and the [ ] patrons’ reports he conveyed contained sufficient indicia of reliability to support reasonable suspicion. Furthermore, the reported activity—possessing a concealed weapon—was presumptively unlawful in California and was ongoing at the time of the stop. Thus, the 911 call generated reasonable suspicion justifying the stop and the district court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop.” Id. at *5.

Of Note: Visiting D.J. Rakoff struggles in Vandergroen to distinguish Judge Wardlaw’s great decision in United States v. Brown, 925 F.3d 1150 (9th Cir. 2019). See id. at *4. Like Vandergroen, in Brown the Ninth considered an investigatory stop when an anonymous tip against a defendant did not involve allegations of serious criminal activity. See generally blog entry here. 

  In Brown, however, the stop was deemed illegal – and the reality of race-based stops was expressly tackled in the opinion. See id. at 1156-57. By contrast, Vandergroen tolerates an “investigatory” stop of a person of color (here, of Asian / Indonesian descent), based on anonymous tipsters, for the California wobbler offense of carrying a concealed weapon.

  The Brown and Vandergroen decisions bookend the death of George Floyd and the explosion of the Black Lives Matter movement -- worth reading this pair of decisions together in the context of those events.

How to Use: Wait – aren’t anonymous tips junk? Here, the only tipsters who actually saw Vandergroen with a pistol were anonymous bar patrons. The Ninth tries to reassure us that the tips were reliable enough to “overcome this shortcoming.” Id. at *3. The tips were “fresh,” based on “first hand knowledge,” and the tipsters were still at the bar (although anonymous). Id. There were also multiple (anonymous) tipsters. Id. 

   Remember these limiting facts when the government inevitably overstates Vandergroen as a green light for all anonymous tips.

                                               

For Further Reading: California will release up to 8,000 prisoners, to help stem to flood of COVID-19. See article here. 

  California U.S. Attorneys, by contrast, are filing increasing numbers of federal cases, and seeking pretrial detention of even more federal inmates -- despite stalled-out re-openings and rising COVID infection rates in our State.

   Inmates and COVID: yet another example of how Cali and the Feds take radically different approaches to the pandemic.

Image of Anonymous with cell phone from https://www.newsweek.com/cyberattack-ddos-anonymous-hacking-group-t-mobile-outage-websites-offline-explained-1511082

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Gets Flight Right - Brown, Flight, and Reasonable Suspicion

 “Innocent” flight, a Fourth delight.

United States v. Daniel Derek Brown, 2019 WL 2364504 (9th Cir. June 5, 2019), decision available here.

Players: Decision by Judge McKeown, joined by District Judge Gaitan, Jr. Concurrence by Judge Friedland.  

Facts: An anonymous YWCA resident told an employee they saw a man with a gun. Id. at *2. The employee – who never saw the gun – called 911. The employee who called 911 repeated the resident’s description: “a young, black man of medium build with dreadlocks, a camouflage jacket, and red shoes.” Id. No suspicious or criminal activity was alleged by the resident, or in the 911 call.

  Police saw Brown, who matched the description. They followed him: he ran. Brown was stopped, searched, and a gun, drugs, and money were found. Id.

  Brown moved to suppress, arguing there was no reasonable suspicion under Terry for the stop. Id. The motion was denied.

Issue(s): “Recognizing that an officer may only ‘conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot,’ Wardlow, 528 U.S. at 123, 120 S.Ct. 673, we must consider whether the officers' stop of Brown met this standard.” Id. at *2.

Held: “We reverse.” Id. at *2.

   “Here, the lack of facts indicating criminal activity or a known high crime area drives our conclusion. The Metro officers who stopped Brown took an anonymous tip that a young, black man ‘had a gun’—which is presumptively lawful in Washington—and jumped to an unreasonable conclusion that Brown's later flight indicated criminal activity. At best, the officers had nothing more than an unsupported hunch of wrongdoing. The government’s effort to rest reasonable suspicion on the tip and Brown's flight fails to satisfy the standard established by Terry and Wardlow. The combination of almost no suspicion from the tip and Brown's flight does not equal reasonable suspicion.” Id. at *2.

Of Note: Critical to Brown’s win was the fact that the tip was from an unidentified tipster (through the identified employee, who called 911). Use Brown to rebuff government attempts to bolster anonymous tipsters who feed their tips through identified callers – it doesn’t work that way. Id. at *3 (“Even though [the YWCA employee] identified herself, the actual source of the tip—the resident—remained anonymous.”)

How to Use: Wait – Brown fled.

   And won?

  Judge McKeown provides a very thoughtful explanation that flight is just a factor – not an automatic end to the suppression analysis. As she writes, “No one disputes that once the Metro officer activated his patrol car lights, Brown fled. But the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion. Instead, the Court has treated flight as just one factor in the reasonable suspicion analysis, if an admittedly significant one.” Id. at *4.

  In a particularly fascinating discussion, Judge McKeown makes some welcome and common sense observations about Brown’s race, and how that fact must enter into the “flight” analysis: “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, we are particularly hesitant to allow flight to carry the day in authorizing a stop.” Id.

  (Didn’t help the government that Seattle PD is under a consent decree for race-based policing issues). Id. at *5 &n.2.

   Brown is a must-read for any case involving suppression issues and flight.

                                           

For Further Reading: When a black person flees the police, should race matter in the reasonable suspicion analysis?

  Of course.

  As the Massachusetts Supreme Court has explained, “[W]here the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department (department) report documenting a pattern of racial profiling of black males in the city of Boston.”

  For a succinct analysis of the landmark Warren decision, see article here. 

Image of the Seattle Police Department from https://www.seattletimes.com/seattle-news/shots-fired-following-car-jacking-suspect-reported-down/.

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org.

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Case o' The Week: Gov't Gobbles Second Bite of Argument Apple - Williams and Reasonable Suspicion for Searches

 Q: What’s does one call a government argument, raised for the first time on appeal?

  A: Waived. “More precise.”

   United 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.

The Honorable Judge Clifford Wallace

Hard fought appeal by D. Nev. AFPD Amy B. Cleary.

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 government appealed.

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.

Held: “Applying 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. at *3. 

  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. at *6. 

  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.

                                               

For Further 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. 349.

Image of the Honorable Judge Clifford Wallace from http://www.iclrs.org/content//events/presenters/4f0625e2d6476.jpg

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Anon, anon - Anonymous Tips & Reasonable Suspicion - Edwards and Fourth Amendment Stops

Q: How reliable can an anonymous tip really be?
A: Reliable enough.

United States v. Edwards, 2014 WL 3747130 (9th Cir. July 31, 2014), decision available here.

Players: Decision by Judge Fisher, joined by Judges Noonan and Wardlaw. Hard-fought appeal by (former) CD Cal AFPD Davina Chen.

Facts: An anonymous 911 caller reported a “young black male” shooting at cars. Id. The shooter was described as between 5’ 7” and 5’9” tall, and “maybe 19, 20” years old. Id. The suspect was described as wearing a black shirt and grey khaki pants. Id. Minutes later, officers stopped Edwards: an African American who was 5’11”, 26 years old, and wearing a black long-sleeved shirt and gray pants. Id. He was arrested near the store where the shooting took place. Id. Cops approached Edwards with guns drawn, told him to kneel, handcuffed him, stood him up, had him spread his legs, pat searched him, and found a .22 revolver. Id. Edwards was charged with Section 922(g) and entered a conditional guilty plea after losing his suppression motion. Id. at *22. 

  (Ed. Note: The CD Cal USAO allows conditional pleas, and the wheels of justice continue to turn. Interesting fact, for the ND Cal.)

 

Issue(s): “Specifically, Edwards contends that the officers’ conduct converted his detention before the gun was discovered from an investigatory stop into an arrest, and that even if Edwards’ detention was merely an investigatory stop, the officers did not have reasonable suspicion to stop him.” Id. at *1. “Edwards . . . disputes that the anonymous 911 call provided the officers with enough information to give them reasonable suspicion to support the investigatory stop in the first place.” Id. at *4.

Held: “We hold that the officers properly conducted an investigatory stop and had reasonable suspicion to do so.” Id. at *1. “Here . . . the officers’ aggressive conduct was reasonable and did not convert Edwards’ detention into an arrest.” Id. at *3 (citation omitted). “In this case, the tip was an anonymous 911 call from an eyewitness reporting an ongoing and dangerous situation and providing a detailed description of the suspect. In light of Navarette, we conclude that the anonymous call leading to Edwards’ detention exhibited sufficient indicia of reliability to provide the officers with reasonable suspicion.” Id. at *6. “Applying Navarette and Terry-Crespo, we hold that the officers in this case reasonably relied on the anonymous call in stopping Edwards, as the district court properly found.”

Hon. Judge Raymond Fisher

Of Note: The main focus of this decision is the intersection of an anonymous tip in an emergency situation – and whether that setting can provide reasonable cause for a stop. Id. at *4. The new wrinkle in this analysis is the Supreme Court’s 2014 decision in Navarette v. California. Id. at *5. Unfortunately, that wrinkle is applied by Judge Fisher to find – in this setting – that reasonable suspicion supported the stop. Id. at *6. 

  For better or worse, Edwards is now an important Ninth decision on anonymous tips and stops: the Circuit’s first application of the Supreme Court’s new rules in this area.

How to Use: Could the knowledge of the 911 dispatcher be imputed to the responding officers? Edwards argued, “no,” relying on the Second’s decision in Colon. Id. at *7 & n.3. The Ninth avoids the issue, distinguishing Colon because in Edwards the dispatcher conveyed to the officers the core data used to build reasonable suspicion: the suspect’s location, description of the suspect, etc. Id. The issue of imputed dispatcher knowledge appears to remain an open question (and an area of potential challenge) in the Ninth.

                                               

For Further Reading: 46,000 incarcerated drug offenders may get relief from resentencing. Every one of them are now writing you, to ask for help. For an interesting summary of the drug resentencing status, see article here. 

   Happily, the Administrative Office of the U.S. Courts hasn’t (yet) prohibited Federal Defenders from – well, defending – these clients. See, contra, Clemency Memo article here. 

   CJA counsel, stay tuned for updates– Defender organizations are meeting on the project, structured plans for this righteous work are underway.

Image of the “Anonymous” mask from http://upload.wikimedia.org/wikipedia/commons/e/e0/Anonymous.svg

Image of the Honorable Judge Raymond Fisher from http://www.swlaw.edu/swlawonline/winter04/images/bigchill_fischer.jpg

Steven Kalar, Federal Public Defender ND Cal FPD. Website at www.ndcalfpd.org

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