United States v. Brown, No. 17-30191 (9th Cir. 2019)
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The Ninth Circuit reversed the district court's order denying defendant's motion to suppress evidence. In this case, a police officer spotted defendant, a black man, who was on foot, and then activated their lights and pursued him by car. The officers did not order or otherwise signal to defendant to stop and he reacted by running for about a block before the officers stopped him at gunpoint.
The panel held that the officers lacked reasonable suspicion that criminal activity was afoot before stopping and frisking defendant where there was no reliable tip, no reported criminal activity, no threat of harm, no suggestion that the area was known for high crime or narcotics, no command to stop, and no requirement to even speak with the police. The panel noted that it was particularly hesitant to allow flight to carry the day in authorizing a stop.
Court Description: Criminal Law The panel reversed the district court’s order denying a motion to suppress evidence obtained after police officers stopped Daniel Brown following an anonymous tip that a black man was carrying a gun, which is not a criminal offense in Washington State. The panel held that the officers lacked reasonable suspicion that criminal activity was afoot before stopping and frisking Brown. The panel wrote that the totality of the circumstances does not add up to enough: no reliable tip, no reasonable inference of criminal behavior, no police initiative to investigate a particular crime in an identified high crime area, and flight without any previous attempt to talk to the suspect. The panel was particularly hesitant to allow flight to carry the day in authorizing the stop, 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. Concurring, Judge Friedland wrote separately to elaborate on three points: (1) the presumptive legality of carrying a concealed firearm in Washington makes this case distinguishable from Foster v. City of Indio, 908 F.3d 1204 (9th Cir. 2018); (2) to help explain why the result here is different from that in Illinois v. Wardlow, 528 U.S. 119
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