Friday, June 07, 2019

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

Steven Kalar, Federal Public Defender. Website at


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