United States v. Brown

          ORDER

          John C. Coughenour UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Daniel Derek Brown's motion to suppress evidence (Dkt. No. 44) and the Government's response (Dkt. No. 45).^[1] Having thoroughly considered the parties' briefing and the relevant record, and the evidentiary hearing held on April 4, 2017, the Court hereby DENIES the motion for the reasons explained herein.

         I. BACKGROUND

         On January 11, 2016, at approximately 7:20 p.m., the Seattle Police Department (SPD) received a 911 call from Sandra Katowitz. (Dkt. No. 44 at 2; Dkt. No. 45 at 1.) Ms. Katowitz is a staff member at the YWCA in downtown Seattle, and was calling to report that an unidentified resident walked in the door and stated, “That guy has a gun.” (Dkt. No. 44 at 2.) The unidentified resident refused to speak with the 911 operator or the police, and refused to give her name. The resident relayed the physical description of the person she claimed had the gun to Ms. Katowitz: a black male with dreadlocks; 20 to 30 years old; wearing a camouflage jacket and red shoes. (Id.; Dkt. No. 45 at 2.) The 911 operator asked, “And where did he put the gun? Did you see?” (Dkt. No. 44 at 2.) Ms. Katowitz responded, “I-no.” (Dkt. No. 44-1 at 5.) Then the 911 operator asked, “What was he doing with the gun? Handling it? Holding it? Pointing? What?” (Id. at 6.) Ms. Katowitz responded, “Uh, she just came in and said he has a gun.” (Id.)

         SPD Officers Breckon and Beecroft responded to the YWCA and spoke with Ms. Katowitz, but not with the anonymous resident. (Dkt. No. 45 at 2; Dkt. No. 44 at 2.) They updated dispatch that “we have no victim of any crime.” (Dkt. No. 44 at 2.) Meanwhile, Deputy Mikulcik and Deputy Litsjo, from the King County Sheriff's Office Metro Transit Unit, were patrolling downtown and heard the 911 call. (Dkt. No. 45 at 2.) Deputy Mikulcik responded and saw a male matching the description, ^[2] who turned out to be Defendant. (Id.) Deputy Mikulcik made a U-turn and began following Defendant. (Id.) Deputy Mikulcik activated his emergency lights and attempted to contact Defendant. (Id. at 3.) At this point, Defendant began to run. (Id.; Dkt. No. 44 at 3.) The deputies chased Defendant with their respective patrol cars, cut him off, and then exited their vehicles and ordered Defendant to the ground at gunpoint. (Dkt. No. 44 at 3; Dkt. No. 45 at 3.)

         At this point SPD Officers Breckon and Beecroft arrived on the scene. (Dkt. No. 45 at 3.) The deputies handcuffed Defendant and performed a protective weapons sweep, locating a semiautomatic handgun in his waistband. (Id.; Dkt. No. 44 at 4.) Deputy Litsjo searched Defendant's jacket and found $162.00 and approximately 8.1 grams of cocaine. (Dkt. No. 44 at 4.) Another deputy searched Defendant's backpack and recovered ammunition, a knife, and an expandable baton. (Dkt. No 44 at 4; Dkt. No. 45 at 4.)

         On January 20, 2016, King County Deputy Smith conducted a phone interview of Ms.Katowitz, who provided the name of the YWCA resident who initially reported that there was a man outside with a gun. (Dkt. No. 45 at 4.)

         On March 2, 2016, Defendant was indicted on the following charges: Felon in Possession of a Firearm, Possession of Cocaine Base with Intent to Distribute, and Possession of a Firearm in Furtherance of Drug Trafficking. (Dkt. No. 13.) Defendant now brings this motion to suppress, arguing that the items seized by law enforcement were the fruit of an illegal stop because the investigatory detention was not supported by a reasonable suspicion that criminal activity was afoot. (Dkt. No. 44 at 5.)

         II. DISCUSSION

         A. Legal Standard

         “An officer may, consistent with the Fourth Amendment, 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, 120 (2000) (citing Terry v. Ohio, 392 U.S. 1, 30 (1968)). Reasonable suspicion must exist at the time the officer initiates a Terry stop. See Florida v. J.L., 529 U.S. 266, 271 (2000); United States v. Fouche, 776 F.2d 1398, 1402 (9th Cir. 1985). In the reasonable suspicion context, a “totality of the circumstances” approach is relevant. Alabama v. White, 496 U.S. 325, 328-29 (1990) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)). Ultimately, a “reasonable suspicion must be based on common sense judgments and inferences about human behavior.” Wardlow, 528 U.S. at 125. Here, White, J.L., and Wardlow inform this Court's totality of the circumstances approach in determining whether reasonable suspicion existed at the time the deputies stopped Defendant.

         In White, the police received an anonymous tip that a woman in possession of cocaine would leave an apartment building at a specific time, get into a particular car, and drive to a named hotel. 496 U.S. at 327. Standing alone, the anonymous tip did not justify a Terry stop. Id. at 329. However, police observations verified that the anonymous tipster accurately predicted the woman's movements. Id. Although it was a “close call, ” the corroboration by independent police work gave the tip moderate indicia of reliability such that by the time officers pulled the defendant over, they had a reasonable suspicion that crime was afoot. Id. at 332.

         In contrast, the police in J.L. received an anonymous call reporting that “a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a gun.” 529 U.S. at 268. Other than the tip, the officers had no reason to suspect the young man of illegal conduct. Id. The Supreme Court held that an accurate description of what a person was wearing and where he was standing was reliable only in the sense of identifying the individual; it provided no predictive information through which to test the informant's knowledge or credibility. Id. at 271- 72. Therefore, the officers had no reasonable suspicion to justify a Terry stop and frisk of J.L. Id. at 271. That he was indeed carrying a gun was irrelevant to whether the police had a reasonable basis when they stopped him. Id.

         Wardlow addressed Terry stops in the context of unprovoked flight from police officers. In Wardlow, officers were patrolling a high crime area in order to investigate drug transactions. 528 U.S. at 121. The officers observed the defendant, holding an opaque bag, look in the direction of the officers and flee. Id. at 121-22. The officers gave chase, stopped the defendant, and performed a Terry frisk, revealing a gun. Id. at 122. Although the Supreme Court declined to create a bright line rule that unprovoked flight establishes reasonable suspicion, it nonetheless stated that “[h]eadlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrong doing, but it is ...