On Wednesday, June 5, 2019, the United States Court of Appeals for the Ninth Circuit held that Washington State police officers lacked reasonable suspicion to arrest Daniel Brown after the police received an anonymous report of a black man possessing a gun in Washington, a concealed-carry state. After the police received the anonymous report, the police saw Brown, activated their police lights, and then pursued him going the opposite direction down a one-way street. Brown ran for about a block before being arrested at gunpoint. Police found a gun in Brown’s waistband, prompting a further search finding drugs and cash. The Ninth Circuit found that the officers lacked reasonable suspicion of criminal activity when they stopped and frisked Brown and, thus, granted Brown’s motion to suppress the evidence of drugs and cash.
Judge M. Margaret McKeown first evaluated the case under the standards established by Terry v. Ohio and Illinois v. Wardlow. Judge McKeown highlighted the fact that the tip itself suffered from two issues: the unknown, anonymous reporter and the absence of any presumptively unlawful activity. The U.S. Supreme Court has consistently found anonymous tips “insufficiently reliable to create reasonable suspicion.” Florida v. J.L., 529 U.S. 266, 270-72 (2000). Further, it is legal to carry a gun in Washington; failure to present a concealed-carry license is merely a civil infraction. As such, Judge McKeown found that the anonymous tip “created at most a very weak inference that he was unlawfully carrying the gun without a license, and certainly not enough to alone support a Terry stop.”
After finding that the anonymous tip lacked any basis for the officers’ stop of Brown, Judge McKeown turned to Brown’s flight from officers. Judge McKeown noted that “the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion.” Judge McKeown noted the Supreme Court’s long history with recognizing that innocent people may reasonably flee from police and continued to differentiate Brown’s case from precedent, most notably Wardlow. Further, Judge McKeown noted, citing Justice John Paul Steven’s partial concurrence in Wardlow, that race cannot be totally discounted in evaluating flight as a basis for reasonable suspicion: “Given that racial dynamics in our society – along with a simple desire not to interact with police – offer an ‘innocent’ explanation of flight. . . we are particularly hesitant to allow flight to carry the day in authorizing a stop.”
Thus, under the totality of the circumstances, Judge McKeown found the police officers lacked reasonable suspicion for a stop. As such, the Ninth Circuit reversed the district court’s denial of Brown’s motion to suppress evidence.
Additional Reading
Police who stopped fleeing black man after gun tip didn’t have reason to stop him, 9th Circuit says, ABA Journal (June 11, 2019)
United States v. Brown, No. 17-30191 (9th Cir. 2019)
