Sunday, July 12, 2020

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.

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


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