United States v. Daniel Derek Brown (9th Cir. June 2019)

Fourth Amendment/Reasonable Suspicion – A defendant’s flight upon being approached by police does not, standing alone, create reasonable suspicion that the defendant is engaged in a crime.

Daniel Brown appealed the district court’s order denying his motion to suppress based on what he alleged was an unlawful stop-and-frisk under Terry. The Government argued that the officers were justified in detaining Brown because they received an anonymous tip that a black man was carrying a gun and Brown ran when they activated their police lights upon approaching him.

The Court held that these facts failed to reflect a reasonable suspicion that Brown had been engaged in any criminal activity. First, the tip was unreliable—it came through a second-hand account of a resident of a nearby apartment complex who did not want to be identified. The anonymous tipster did not indicate that Brown or whoever had the gun was acting dangerously or posing any sort of threat or risk to others, merely that an individual “had a gun.” Crucially, carrying a concealed weapon is presumptively legal in Washington, so the anonymous tip did not reflect any ongoing criminal activity.

As to the fact that Brown fled upon being approached by the police, the Court held that this, standing alone, did not create reasonable suspicion justifying stopping Brown. Quoting Justice Stevens in Illinois v. Wardlow in 2000, the Court noted:

Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.

As the Court stated, “the Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion.” The Court also noted that there were racial dynamics here, exaggerated since Justice Stevens’ words in Wardlow, reinforcing the notion that “uneven policing may reasonably affect the reaction of certain individuals—including those who are innocent—to law enforcement.”

The Court further noted that the officers had never ordered Brown to stop before activating their lights, and there was no threat of harm or indication that Brown was acting in any dangerous manner or that the area was dangerous. Since they never requested that he stop, there was no obligation for Brown to stop, distinguishing the cases where officers have directly ordered individuals to stop or where individuals have fled after being seen with potential contraband.

The Court rejected the Government’s conclusory arguments that Brown was brandishing the gun or that there was a nefarious purpose for Brown being in the area (a women’s YWCA shelter) since there was no support in the record for the Government’s assertions. Accordingly, the lack of reliability of the anonymous tip and the absence of any presumptively unlawful activity made the stop unreasonable under Terry.

Judge Friedland concurred, stressing that the presumptive legality of carrying a concealed firearm in Washington distinguishes this case from others where tips alleging that an individual has a gun may support a reasonable suspicion. He also explained the officers here could have stopped Brown in a constitutional manner by simply asking to see his permit for concealed carry. This would not have a been a “seizure” given laws allowing officers to request such information. Judge Friedland also stressed that “nothing in the record supports the conclusion that the officers were stopping Brown simple because he was black.”

Appeal from the Western District of Washington

Opinion by McKeown, joined by Gaitain (by designation from W.D. Mo.)

Concurrence by Friedland

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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