Case o' The Week: Cop "Opens the Door". . . to Suppression - Ngumezi and Cop-Entry into Cars without P.C.

Fourth alive and well, at S.F. Shell . . .

United States v. Ngumezi, 2020 WL 6814674 (9th Cir. Nov. 21, 2020), decision available here.

Players: Decision by Judge Miller, joined by Judge Hunsaker and visiting D.J. Schlitz.

  Big win for ND Cal Appellate AFPD Steven Koeninger, with briefing help from (former) AFPD Jon Abel (now a U.C. Hastings Associate Prof).

 Facts: Ngumezi was legally parked, getting gas, at a San Francisco station )(pictured above). Id. at *1. [Ed. Note: Malik Ngumezi is a young black man].

  S.F. Police Officer Kolby Willmes saw the car had no plates, and decided to investigate. Id. In reality, Mr. Ngumezi had recently purchased the car and had a bill of sale affixed to the windshield. Id. [At that time, a lawful alternative to paper plates].

  Ngumezi declared that Officer Willmes opened the passenger side door without permission and asked Ngumezi for his license and vehicle registration. Id.

  Officer Willmes [who conspicuously did not activate his body camera] said he “did not remember” if he opened the door. Id.

  The officer learned Ngumezi did not have a driver’s license: an inventory search then produced a gun inside the car. Id.

   Ngumezi was charged with being a felon in possession of a firearm. The district court denied the suppression motion, and refused to conduct the requested evidentiary hearing.

  (Because this was the Northern District of California), the defense went through a stip facts trial to preserve the issue for appeal. Id. at *2.

 Issue(s): “On appeal, Ngumezi challenges only the denial of the motion to suppress . . . . His principal argument is that whether or not Officer Willmes had reasonable suspicion at the time he opened the door, opening the door and leaning inside constituted a search that violated the Fourth Amendment because it was not authorized by any exception to the warrant requirement.” Id.

  “The key facts are not disputed: Ngumezi says that Willmes opened the car door and leaned into the car, and Willmes does not specifically deny that that is what he did. We therefore must consider whether police officers who have reasonable suspicion sufficient to justify a traffic stop – but who lack probable cause or any other particularized justification, such as a reasonable belief that the driver poses a danger – may open the door to a vehicle and lean inside.” Id.

 Held: “We conclude they may not.” Id.

   “[We do not] see how courts could administer a test that would require them to distinguish between Willmes leaning into the passenger-side area of Ngumezi’s car and, say, an officer crawling into the back of a car to look under the seats. Instead, we apply a bright-line rule that opening a door and entering the interior space of a vehicle constitutes a Fourth Amendment search.” Id. at *3.

  “Nothing about this case calls for a remedy other than the typical remedy for a Fourth Amendment violation, which is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant.” Id. at *5 (internal citations and quotations omitted). 

Of Note: To the Ninth’s frustration, the government put all of its Fourth Amendment eggs in one appellate basket. The government complained that the Court should not “apply the exclusionary rule because the benefits of deterrence do not outweigh the social costs of suppression.” Id. at *5. 

The Hon. Judge Miller

Judge Miller makes short work of this pitch, explaining that the “flagrancy of the government’s conduct” is only relevant to the attenuation doctrine, but is not a free-standing basis for avoiding suppression. See also United States v. Garcia, 974 F.3d 1071, 1076-82 (9th Cir. 2020).

   Use Ngumezi to knock down the government’s boilerplate “flagrancy” argument when next it arises.

 

How to Use: [Ed. Note: the author of this memo litigated the suppression motion in district court]. While the Ngumezi Appellate AFPDs did a remarkable job, the government also helped to deliver this win. 

  Turn to this opinion for Judge Miller’s intellectually-honest (albeit exasperated) refusals to do the government’s work for it (on “forfeiture” of defense arguments, and on (non-asserted) theories of attenuation).                                            

For Further Reading: Mr. Malik Ngumezi filed a complaint against SF Police Officer Kolby Willmes, Star 1216, alleging that this was a race-based stop, charging failure to comply with the San Francisco Police Department body camera policies, and Fourth Amendment violations.

  The San Francisco Public Defender recently made public an important service that helps track these cop complaints. See “Copwatch” web page here. 

 

 

 

Image of SF Shell Station from https://gregology.net/2019/05/san-francisco-day-trip/

 Image of the Honorable Judge Miller from https://www.washingtonpost.com/politics/2019/02/27/dangerous-first-conservative-judge-installed-after-vetting-by-only-two-senators/ 

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

 

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Case o' The Week: Battle of the Bulge -- Bontemps, Terry and Reasonable Suspicion from "Gun Bulges"

 “Gun” bulge spotted?

Laissez les bon temps rouler (for the cops, that is . . .).

United States v. Bontemps, 2020 WL 6040044 (9th Cir. Oct. 13, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judge R. Nelson. Compelling dissent by D.J. Gwin. Hard-fought appeal by ED Cal AFPD Ann C. McClintock.

 Facts: At 3:51 pm, Vallejo cops saw four African American men walking on a road in a mixed commercial / residential area. Id. at *1. One detective claimed to have seen what appeared to be a concealed gun in the pouch pocket of the sweatshirt of a man named, “Mills.” Id. A different officer, Detective Tonn, claims to have seen a “very obvious bulge” on the left side of a man named Bontemps. Id. The bulge was just above Bontemps waist area, halfway between his waist and armpit. Id. at *2. Detective Tonn believed Bontemps was carrying a concealed gun.

  The detectives stopped the men, found a gun in Mills’ pocket, and a Glock in a shoulder holster on Bontemps’ left side. Id.

  Bontemps was charged with § 922(g) and brought a suppression motion. After an evidentiary hearing, the court denied the motion, finding reasonable suspicion for the stop. Id.

   Bontemps entered a conditional plea that reserved his right to appeal the district court’s denial of his motion to suppress. Id. at *3.

 Issue(s): “Police detained Tamaran Bontemps after observing a bulge under his sweatshirt that likely indicated a concealed firearm, which is presumptively unlawful to carry in California. After searching Bontemps, a convicted felon with an outstanding felony warrant, police determined he was carrying a loaded gun in a shoulder holster. The question in this case is whether police had reasonable suspicion of illegal conduct sufficient to justify the stop.” Id.

 Held: “We hold that the district court did not clearly err in crediting an officer's testimony that he observed on Bontemps a ‘very large and obvious bulge’ that suggested a concealed firearm. We further hold that reasonable suspicion supported the stop. The district court therefore properly denied Bontemps's motion to suppress evidence found during the search.” Id. at *1.

 Of Note: In a compelling dissent, District Judge Gwin questions the “reasonable suspicion” for this mid-afternoon stop, when there was no criminal activity and the detective only saw “a non-descript sweatshirt bulge.” Id. at *7. The DJ details the inconsistent testimony in the detectives’ accounts, and questions the use of bodycam footage that did not show Bontemps as he looked at the time of the stop. Id. at *9. He concludes, “A sweatshirt bulge alone, especially one as non-descript as here, and without any associated suspicious conduct or circumstances cannot create a reasonable suspicion of criminal activity.” Id. at *10.

  Given Black Lives Matter and the growing societal awareness of the reality of race-based stops, it is disappointing to see the Ninth expand the “bulge” bases to permit the stops of black men who are not engaged in criminal activity, who are walking on a public street in the middle of the afternoon (an unwritten but obvious concern animating DJ Gwin’s dissent). 

   Read Judge James Gwin’s dissent for remarkable stats on how infrequently “bulge” searches actually produce guns, id. at 11. Statistically speaking, “bulge searches” are just pretexts to justify deeply troubling stops.

 How to Use: Wait – isn’t there a whole line of good law rejecting reasonable suspicion as a basis to search for “drug bulges?”

  There is indeed. See, e.g., United States v. Job, 871 F.3d 852, 861 (9th Cir. 2017).

  Judge Bress is “mindful” of concerns about stops based on “gun bulges,” but goes on to try to distinguish the “drug bulge” search caselaw from the Ninth’s new tolerance of a “gun bulge” exception. Id. at *5. Putting aside whether that is a convincing distinction, beware there are new “bulge” categories that appear to now exist in the Ninth: drug bulges are not sufficient, but “gun” bulges (may) establish reasonable suspicion for a stop and Terry pat-down.

 For Further Reading: Terry and its progeny rely on cops’ “common sense.” For a great article providing “empirical data that can substantiate or call into question the predictive value of these ‘common sense’ facts,” and calling for courts to “adjust their perceptions accordingly” when reviewing Terry stops, see Terry Stops-and-Frisks: The Troubling Use of Common Sense in a World of Empirical Data, available here.

 

  

Image of “Stop and Frisk” from https://www.acludc.org/en/know-your-rights/know-your-rights-stop-and-frisk

 

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

 

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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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