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Ninth Circuit: Running From Police Alone Doesn’t Give Rise to Reasonable Suspicion Justifying Stop and Frisk

by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit held that running from police, by itself, does not provide reasonable suspicion to justify stopping and frisking the person.

Sandra Katowitz — an employee of the YWCA in the Belltown neighborhood of Seattle, Washington — called 911 and reported, “One of [her] residents just came and said they saw someone with a gun.” When the dispatcher asked what the person was doing with the gun, Katowitz replied that the resident had only said a young black man of medium build with dreadlocks had a gun. Katowitz did not indicate that the resident was frightened or upset or otherwise alarmed by the gun’s presence. Likewise, there was no indication the man was loitering near the YWCA or harassing any of the residents. The reporting witness did not provide her name and refused to speak to the dispatcher or to the officers who responded to the call. 

Officers Ryan Mikulcik and Curt Litsjo spotted Daniel Derek Brown, who matched the 911 description. They began driving behind Brown slowly for several blocks without ordering Brown to stop or otherwise communicating with him. When the officers turned on the patrol lights, Brown ran. The officers chased him for one block before ordering him to the ground at gunpoint. The officers found a firearm and drugs on Brown. At a hearing on Brown’s motion to suppress the evidence, he argued the officers lacked reasonable suspicion to stop him pursuant to Terry v. Ohio, 392 U.S. 1 (1968). The district court denied Brown’s motion, and he appealed.

The Ninth Circuit observed that an 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 (2000). In analyzing Brown’s claim, the Court considers “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 (9th Cir. 2016). An anonymous tip that identifies an individual but lacks “moderate indicia of reliability” provides little support for a finding of reasonable suspicion.” Florida v. J.L., 529 U.S. 266 (2000). The tip must be reliable in its assertion of illegality. Id. And “[h]eadlong flight — wherever it occurs — is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Wardlow. But the Supreme Court has a long history of recognizing that innocent people flee from police. Alberty v. United States, 162 U.S. 499 (1896). In our racially charged society it is not unreasonable for a black man to flee from police out of fear for his safety. Wardlow. The Court noted that “the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion.” Flight is merely one factor in the overall reasonable suspicion analysis. Id. Furthermore, the Supreme Court has held that a person has no obligation to respond when approached and questioned by police. Florida v. Royer, 460 U.S. 491 (1983).

The Court then explained that possession of a gun in Washington state is presumptively legal. Carrying a concealed pistol without a license constitutes a misdemeanor, and failure to carry the license is merely a civil infraction. RCW §§ 9.41.050(1). Nevertheless, a suspicion that a person may be carrying a gun without a license is “certainly not enough to alone support a Terry stop,” the Court stated, citing Delaware v. Prouse, 440 U.S. 648 (1979), in which the Supreme Court held that police may not stop drivers solely to ensure compliance with licensing and registration laws.

In the present case, the police had a tip that a young, black man was in possession of a gun, which is presumptively legal in Washington, and there was no indication that criminal activity was afoot. The witness didn’t complain she was threatened by the man or that the man used or displayed the gun to cause anyone to feel alarmed or harassed. Nor was the man loitering near the YWCA. And the Belltown neighborhood was not a known high-crime area.

The tip was also anonymous. The reporting resident did not identify herself or personally speak with the dispatcher or the responding officers. Nor did the witness assert any illegality.

Regarding Brown’s running away, the Court noted the fact that the officers did not command Brown to stop while following him, nor did they tell Brown they wanted to speak to him. The officers followed Brown, a young black man, for several blocks before turning on their emergency lights. 

The Court determined that the totality of the circumstances didn’t amount to reasonable suspicion justifying stopping and frisking Brown. It noted there was no reliable tip; no reasonable suspicion of criminal activity; no police initiative to investigate a particular crime in a high-crime area; flight without any previous attempt to talk to the suspect is not prohibited; and possession of a gun is presumptively legal in Washington. 

Accordingly, the Court reversed the district court’s denial of the motion to suppress. See: United States v. Brown, 2019 U.S. App. LEXIS 16886 (9th Cir. 2019). 

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