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: 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: Many are the afflictions of the righteous: but the [Ninth] delivereth him out of [some] of them - Job and King Searches

 Illegal searches, denied suppression motions, an unsuccessful trial, a thirty-year custodial term, and an appeal.

 The Ninth rewards the patience of Job.

United States v. Job, 2017 WL 971803 (9th Cir. Mar. 14, 2017), decision available here.

Players: Decision by (the always-welcome) visiting District Judge Friedman, District of Columbia, joined by Judges Tashima and Paez.  

Facts: Cops, looking for some other dude, happened upon Travis Job: they patted him down. Id. at *2.

  They discovered a glass pipe in Job’s pocket, $1,450 in cash, and car keys. Id. When the cops pushed the key fob a car in the driveway beeped and unlocked. Id.

   Cops searched the car and found meth, a cig with Spice, another glass pipe, and a cell phone. Id.  At some unknown point, the officers discovered Jobs was on probation “with a 4^th amendment waiver.” Id.

  Job was charged in a meth conspiracy with Robert Rodriguez, and others. Id. at *2 (see also United States v. Rodriguez, 2017 WL 971809 (9th Cir. Mar. 14,2017)(discussing challenges to wiretap). Job’s challenges to the searches of his person and car were denied. He was convicted at trial and sentenced to 360 months [other offenses and searches were also involved in the case]. Id. at *3.   

Issue(s): “[Job] argues that the district court erred by denying his motions to suppress evidence found during searches of his person [and] car . . . .” Id. at *1.

Held: “In denying Job’s motions to suppress, the district court concluded — based on our decision in United States v. King — that Job’s Fourth Amendment search waiver provided a justification for all three searches. 736 F.3d 805, 810 (9th Cir. 2013). In King, we held that a suspicionless search, conducted pursuant to a suspicionless-search condition of a violent felon's probation agreement, does not violate the Fourth Amendment. Id. The district court erred by applying King’s holding to this case . . .”  Id. at *3.

  “The district court erred in denying Job’s motions to suppress evidence . . . solely on the basis of Job’s Fourth Amendment search waiver.” Id. at *4 (internal quotations and citation omitted).

Of Note: There were two problems with the government’s use of King in the district court. First, “it is undisputed that the officers were unaware of Job’s Fourth Amendment search waiver when they stopped him and patted him down.” Id. at *3. However, the Ninth’s policy rationale behind permitting the suspicionless searches of parolees (and probationers) requires that cops know of the search condition before searching. Id. Without that key fact, King’s “suspicionless search” rule can’t salvage a bad search.

  Second, King only applies to folks on paper for violent felonies –here, Job was on probation for a narcotic offense (Cal. H&S § 11377(a)). Id. at *4. A probation search waiver for a drug offense (offenses that have been deemed “nonviolent” by the Ninth) won’t justify a King suspicionless search of person, car, or home. Id.

How to Use: It is all well and good that the district court erred -- for Mr. Job, however, the far more-pressing question is the actual impact of the holding on convictions underlying his 30 year sentence?

  The Ninth employs harmless error review to answer that question. Judge Friedman schools the government for misstating the standard for this harmless error review: the test is not “whether a rational jury could have found Job guilty.” Id. at *8 & n.6. Instead, this error is “harmless only when it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at *8 (internal quotations and citation omitted).

  The Ninth ultimately reverses one count of conviction under the standard as correctly set forth by Judge Friedman. Take careful note of footnote six: the government’s (wrong) standard of review would have probably meant defeat for Mr. Job. Job is a useful summary of the correct S.O.R. for Fourth Amendment motions after trial (and a potent reminder not to trust the government’s asserted standards on appeal).

           

The Honorable Chief Judge Thomas, with the Honorable Judges Bea and Kozinski (left to right).

                                   

For Further Reading: Republican-appointed judges are testifying in Congress, and opposing a Ninth Circuit split. Judges Bea and Kozinski joined C.J. Thomas at the House Judiciary Subcommittee to oppose the proposed creation of a new 12th Circuit from current Ninth States. For a video of their testimony, see the C-SPAN link here. 

  On a related note, Republican-appointed jurists occasionally disagree with some of the decisions of their colleagues on the Ninth. They are not, however, big fans of the Executive’s ad hominem attacks on the Judiciary. For an interesting piece on a very interesting dissent along these lines, see Appeals Court Judges Rebuke Trump for Personal Attacks, available here.

 
 

Image of (the biblical) Job from http://www.college.columbia.edu/core/sites/core/files/Job.jpg

Image of the Honorable Chief Judge Thomas, the Honorable Judge Bea, and the Honorable Judge Kozinski, from https://www.c-span.org/video/?425486-1/ninth-circuit-court-appeals-judges-testify-court-restructuring

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

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Case o' The Week: The Cat's Meow - I.E.V. and Terry Searches

“An unknown object could be contraband and could be a weapon, just as a cat locked in a steel chamber for an hour could be alive and could be dead.” 

    United States v. I.E.V., a Juvenile Male, 2012 WL 5937702, *10 (9th Cir. Nov. 28, 2012) (Kozinski, Chief Judge, dissenting), decision available here.

 This pointed dissent from a great Terry decision thankfully doesn’t carry the day – but the Chief merits a nod for working Schrödinger’s Cat into a Fourth Amendment analysis.

Players: Decision by Judge N.R. Smith, joined by Judge Christen. Dissent by Chief Judge Kozinski.

Facts: I.E.V., a juvenile male was a passenger in a car driven by his teenage brother. Id. at *1. Id. A drug dog alerted on the car, but not the boys. Id. No drugs were found in the car. Id. The officers didn’t find either boy threatening, or likely to flee. Id. at *2. I.E.V. was “nervous” and “fidgety,” so both boys were patted down. An officer felt an object under I.E.V.’s shirt. Id. The officer lifted I.E.V.’s shirt without permission and discovered a brick of marijuana. Id. The district court denied the motion to suppress, holding the search was warranted based on the totality of circumstances. Id.

 

Issue(s): “In this appeal, we only answer the following questions: (1) whether the decision to perform a frisk of the Defendant was justified at its inception by a reasonable suspicion that the Defendant was armed and dangerous, and (2) whether the pat-down stayed within the appropriate scope of Terry.” Id. at *3.

Held: “The officers did not set forth the requisite specific and articulable facts such that a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.  No narcotics had been discovered prior to the pat-down of Defendant. There was no evidence that the Defendant was dangerous. At the suppression hearing, both officers testified that the Defendant and Mendez, two teenage boys surrounded by officers, acted in a compliant and nonthreatening manner. The frisk of the Defendant, essentially based on nothing more than the suspicion that drugs could be found, amounted to the type of general exploratory search for whatever evidence of criminal activity the officer might find, which was specifically prohibited under Terry. . . . Accordingly, this patdown was unconstitutional from its inception.” Id. at *4 (internal quotations and citations omitted). 

“[B]ecause the officer who searched the Defendant did not testify to the specific and articulable facts giving rise to the search, and because it is not obvious from the record that the officer immediately identified the bundle on the Defendant as contraband or a weapon, the search of the Defendant exceeded the scope of a constitutional Terry search.” Id. at *9.

Of Note: We love I.E.V..

    The Chief does not.

   In the first sentence of his dissent, C.J. Kozinski describes the majority decision as “wrong” and “dangerous,” and maintains that tone throughout. Id. Judge N.R. Smith, however, offers a subtle rejoinder. To support his (correct) Terry holding, Judge Smith quotes heavily from great Fourth language in several previous Ninth dissents – dissents penned, naturally, by the Chief himself. Id. at *5, *7; see also id. at 5 * & n.2 (“Given the totality of the circumstances, it seems our Chief Judge would have been diving alone into the nearest ditch.”)

How to Use: In I.E.V., Judge N.R. Smith announces a good new Ninth rule: “[W]e join with our sister circuits that have refused to allow police officers to justify a Terry search based on mere nervous or fidgety conduct and touching of clothing.” Id. at *6. Actually, there’s nothing new about this rule -- as explained in the opinion, this squarely comports with the intent of Terry. Nice, however, for the Ninth to formally reject the government’s attempt to expand Terry. As the Court cautions, Terry doesn’t justify a “perfunctory attitude towards frisking a subject once a justified stop has occurred.” Id. at *6. Turn to I.E.V. for Terry litigation: Judge N.R. Smith gives us a solid history of the rationales and limits of the search exception, in a well-written and valuable opinion.                                             

For Further Reading: Before the cops actually looked under the minor’s shirt, was the object taped to his belly drugs, or a gun? Chief Judge Kozinski uses Schrödinger’s Cat to illustrate the ambiguity. Id. at *10. If your quantum mechanics are a little rusty, there’s a short video explaining the thought experiment here.

Image of Schrodinger’s Cat from http://blog.imaginaryfoundation.com/2012/10/02/schrodingers-cat/

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