Courtesy of James R. Touchstone, Esq.
In June 2019, United States v. Brown, the Ninth Circuit Court of Appeals held that the combination of an anonymous tip suggesting no crime and a defendant’s flight from officers, who did not previously communicate with the suspect, did not provide officers with a reasonable, articulable suspicion of criminal activity when they stopped and frisked a defendant.
In January 2016, a YWCA employee called 911 and said that a resident reported someone with a gun. Carrying a gun is not a criminal offense in the state of Washington. The employee did not see the gun herself, but conveyed to the 911 dispatcher the resident’s comments describing the situation. The resident described the person who had the gun as a young, black man of medium build with dreadlocks, a camouflage jacket, and red shoes. In response to the dispatcher’s specific questions about what the man was doing with the gun, the employee answered that the only response from the resident was that “he has a gun.” The employee did not suggest that the resident was alarmed or visibly upset by the gun’s presence. There was no sign that the man was loitering at the residence, was known by anyone, or had ever been encountered by anyone else other than the reporting resident. The resident remained in the YWCA lobby but did not give her name or speak to the dispatcher or officers who responded to the call. The anonymous tipster was heard over the phone saying that she did not like the police.
While Seattle Police officers spoke to the YWCA employee, King County Sheriff’s Office Metro Transit Unit Officers Ryan Mikulcik and his partner Curt Litsjo heard and responded to the 911 call. From his patrol car, Officer Mikulcik spotted defendant David Derek Brown, who was on foot and matched the 911 description. Mikulcik called Litsjo. Mikulcik pursued Brown by driving behind him slowly for several blocks before activating his patrol lights and driving the wrong direction down a one-way street to follow Brown. When he saw the lights and patrol car coming from behind him, Brown ran away. He ran for a block before the pursuing officers stopped him and ordered him to the ground at gunpoint. The officers handcuffed Brown and discovered a firearm in his waistband. Continuing their search, the officers found drugs, cash, and other items.
Brown moved to suppress the evidence from the searches, arguing that the officers lacked reasonable suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968). The District Court denied the motion, and Brown appealed.
The Ninth Circuit Court of Appeals observed that a law enforcement officer may only “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To evaluate whether the Officers Mikulcik and Litsjo met this standard in their stop of Brown, Court analyzed “the totality of the circumstances surrounding the stop, including ‘both the content of information possessed by police and its degree of reliability.’” United States v. Williams, 846 F.3d 303, 308 (9th Cir. 2016) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).
The Court of Appeals first considered the resident’s tip conveyed secondhand through the YWCA employee. The Court explained that an anonymous tip that identifies an individual but lacks “moderate indicia of reliability” generates weak support for a finding of reasonable suspicion because “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”
The Court observed that the tip was anonymous as the resident would not speak firsthand to the authorities or offer her name through the employee to police. The secondhand information through the YWCA employee described a young, black man had a gun, but having a gun is presumptively legal in Washington. The Court said that a “virtually identical” anonymous tip was discussed in Florida v. J.L., in which the Supreme Court held an anonymous tip that a young black man in a plaid shirt was carrying a gun insufficient to create reasonable suspicion.
The Ninth Circuit also explained that a tip must be reliable not only in its likelihood to identify a determinate person, but also in its assertion of illegality. (Florida v. J.L., at 272.) Here, none of the responding officers could articulate what crime they suspected Brown of committing, only that they heard the subject had a gun. The Court noted that even if the officers suspected of carrying his gun without a license, a misdemeanor in Washington state, the failure to carry a license is merely a civil infraction. As it was presumptively legal to carry a gun, the Court found that the anonymous tip that Brown had a gun 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.”
The Court also observed that there was no suggestion of any criminal activity or behavior, or a threat of harm. Brown had not loitered at the YWCA shelter nor harassed anyone around the shelter, but was instead walking away from the YWCA at the time of the stop. The anonymous tipster did not appear to the employee to be alarmed or upset. Instead, she merely “walked in” and said “that guy has a gun,” conveyed through the employee. Under the totality of the circumstances, the Court found the resident’s tip was “worth little.” Given the anonymous tip and the presumptive legality of carrying a concealed firearm in Washington, the Court concluded the tip alone did not create reasonable suspicion that Brown was engaged in any criminal activity.
The Court then discussed Brown’s flight from the two officers. The Ninth Circuit explained that the Supreme Court has treated flight as just one factor in the reasonable suspicion analysis, and the High Court has a long history of recognizing that innocent people may reasonably flee from the police. The Court distinguished the circumstances here from several other cases, including those presented in United States v. Smith where a suspect in a known high crime area was spotted by an officer who ran his siren twice, pulled over and verbally commanded the suspect to stop, and then later spoke clearly with the suspect before the suspect fled. The Court also found the facts of the Wardlow case distinguishable because the officers in that case came to a high-crime area known also for heavy narcotics trafficking, and there saw a suspect holding a baggie who then immediately fled.
Here, however, the Court observed, the officers did not communicate with Brown in any way before they flashed their lights and then detained him. The government conceded that the area Brown was walking was not a known high crime area, or one known for unlawful gun possession. The officers never saw Brown holding a gun or walking in a way that give credence to the resident’s secondhand report of person with a gun. The officers did not make any verbal requests of Brown, which naturally meant that Brown did not refuse any such requests. The Court found that, under these circumstances, Brown had no obligation to stop and speak to an officer. Brown’s flight did not corroborate any reliable suspicion of criminal behavior.
The Court found the combination of almost no suspicion from the tip and Brown’s flight did not equal reasonable suspicion. Without more specific, articulable facts supporting their actions, the Ninth Circuit Court of Appeals concluded that, under the totality of the circumstances, the officers lacked the requisite reasonable suspicion that criminal activity was afoot before stopping Brown. Accordingly, the Ninth Circuit Court of Appeals reversed the District Court’s denial of Brown’s motion to suppress.
HOW THIS AFFECTS YOUR AGENCY
The Court determined that the totality of the circumstances did not support to a finding of reasonable suspicion to detain in this instance. To reiterate, there was an anonymous tip providing little or no inference of criminal activity, the tipster was not upset by their observance of someone with a gun, and such conduct was legal in Washington anyway under most circumstances. The officers did not perceive the area of the stop as a high crime area. The officers did not verbally or audibly engage with the defendant before he fled. Of course, the Court blithely ignored the fact that the YWCA employee was concerned enough about the situation that she called 911 to report the matter.
Nevertheless, agencies may wish to compare the nature of the circumstances presented here with those presented in the Court’s cited cases to understand under when sufficiency is achieved to meet the reasonable suspicion standard. Agencies should also be aware that, although flight might be suggestive of wrongdoing in the reasonable suspicion analysis, the fact of a suspect fleeing alone may fail to meet the standard. Officers must be prepared to articulate all facts that would give rise to reasonable suspicion to detain an individual for an investigatory stop, particularly when responding to an anonymous tip.
As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at firstname.lastname@example.org.
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 2019 U.S. App. LEXIS 16886 (9th Cir. June 5, 2019).
 See Florida v. J.L., 529 U.S. 266, 270-71 (2000).
 Alabama v. White, 496 U.S. 325, 329 (1990).
 See Alberty v. United States, 162 U.S. 499, 511 (1896).
 633 F.3d 889 (9th Cir. 2011).