UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHANE MAURITZ VANDERGROEN, Defendant-Appellant.
No. 19-10075
United States Court of Appeals, Ninth Circuit
Filed July 7, 2020
D.C. No. 4:18-cr-00133-PJH-1
Opinion by Judge Rakoff
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Appeal from the United States District Court for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted May 13, 2020
San Francisco, California
Filed July 7, 2020
Before: Michelle T. Friedland and Mark J. Bennett, Circuit Judges, and Jed S. Rakoff,* District Judge.
Opinion by Judge Rakoff
SUMMARY**
Criminal Law
The panel affirmed the district court‘s denial of a motion to suppress evidence found during a search that followed a 911 call and the stop of the defendant‘s car, in a case in which the defendant was convicted of being a felon in possession of a firearm.
The panel held that the 911 call generated reasonable suspicion justifying the stop, where the identified caller using an emergency line was reliable, the reports by three other persons conveyed by the caller contained sufficient indicia of reliability, and the reported activity—possessing a concealed weapon—was presumptively unlawful in California and ongoing.
The panel addressed other issues in a concurrently filed memorandum disposition.
COUNSEL
Jerome E. Matthews (argued) and Robin Packel, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, Oakland, California; for Defendant-Appellant.
Alexis J. Loeb (argued), Assistant United States Attorney; Merry Jean Chan, Chief, Appellate Section; David L. Anderson, United States Attorney; United States Attorney‘s Office, San Francisco, California; for Plaintiff-Appellee.
RAKOFF, District Judge:
Late on a Saturday evening, a worker at a bar in California called 911 to report that three patrons had seen a man in the area with a pistol on him. In response to this call, the police stopped the man as he drove away, discovered a pistol in his car, and placed him under arrest. The man, defendant-appellant Shane Vandergroen, was subsequently convicted of being a felon in possession of a firearm in violation of
I. Factual Background
At about 11:27 p.m. on February 17, 2018, an individual (“Witness 2“) who worked at a bar called Nica Lounge (“Nica“) in Concord, California called 9112 to report a man with a gun seen on his person. Witness 2 gave his name, identified his position at Nica, and indicated he was calling from the bar. He explained that three of Nica‘s customers had told him they saw a man in the area with a pistol “on him.” Witness 2 said the man (whom he could see) was in the back parking lot and had just walked into a neighboring bar. Witness 2 described the man as “Latin,” “wearing a blue sweater with a Warriors . . . logo,” “skinny,” and in his early 20s, features that mostly matched Vandergroen‘s.3
Continuing in the call, Witness 2 next reported that the man had walked out of the neighboring bar and was in the parking lot next to Nica Lounge. The operator asked for more details about the man, including whether the suspect had been fighting. Witness 2 said the man had not. The operator also asked Witness 2 where the gun was located on the defendant, and the witness indicated that he would ask the patrons who reported the gun to him. Before Witness 2 could provide more information, however, the man started running through the parking lot by Nica. Witness 2 started reporting the man‘s movements, including that the man jumped into a black four-door sedan. Witness 2 identified the car as a “Crown Vic,” noted the man was driving out of the parking lot, and told police officers arriving on the scene which car to follow. At the end of the call (“the 911 call“), Witness 2 provided his full name and phone number.
In response to the 911 call, dispatch alerted officers that “patrons think they saw a HMA [Hispanic Male Adult] blu[e] warriors logo carrying a pistol.” Dispatch directed officers to “1907 Salvio[,] Nica Lounge,” and stated,
3 patrons think they saw an HMA with a blue sweatshirt on carrying a pistol.
We‘re getting further . . . . HMA wearing a blue sweatshirt with a Warriors logo on it . . . currently IFO Pizza Guys . . . . no 4-15 [i.e. no fight] prior to patrons seeing the male with a pistol. 3 females say they saw it on him. We‘re still getting further . . . . Subject is running4 toward DV8 Tattoos and just got into a black vehicle . . . getting into a 4-door sedan, black in color . . .
Shortly thereafter, an officer reported over the dispatch “we‘re gonna do a high-risk car stop.” The police then executed a stop of the man, later identified as Vandergroen. During this stop, the police conducted a search of Vandergroen‘s car and found a loaded semi-automatic handgun under the center console to the right of the driver‘s seat. An officer then placed Vandergroen under arrest.
Vandergroen was subsequently charged in a single-count indictment with being a felon in possession of a firearm, in violation of
II. Standard of Review
We review the denial of a motion to suppress de novo, and any underlying findings of fact for clear error. United States v. Torres, 828 F.3d 1113, 1118 (9th Cir. 2016).
III. Analysis
On appeal, Vandergroen argues that evidence discovered in the course of his arrest should be suppressed because the police did not have reasonable suspicion to stop him in the first instance. Under the Fourth Amendment, an officer may conduct a brief investigative stop only where she has “a particularized and objective basis for suspecting the particular person stopped of criminal activity,” commonly referred to as “reasonable suspicion.” Navarette v. California, 572 U.S. 393, 396–97 (2014) (citations omitted). While a tip such as the 911 call may generate reasonable suspicion, it can only do so when, under the “totality-of-the-circumstances,” it possesses two features. United States v. Rowland, 464 F.3d 899, 907 (9th Cir. 2006) (citation omitted). First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop. United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014). The 911 call here satisfied both requirements.
A. Reliability
The Supreme Court and this circuit have identified a number of factors that can demonstrate the reliability of a tip, including whether the tipper is known, rather than anonymous, Florida v. J.L., 529 U.S. 266, 270 (2000); whether the tipper reveals the basis of his knowledge, Rowland, 464 F.3d at 908; whether the tipper provides detailed predictive information indicating insider knowledge, id.; whether the caller uses a 911 number rather than a non-emergency tip line, Foster v. City of Indio, 908 F.3d 1204, 1214 (9th Cir. 2018); and whether the tipster relays fresh, eyewitness knowledge, rather than stale, second-hand knowledge, United States v. Terry-Crespo, 356 F.3d 1170, 1176–77 (9th Cir. 2004). When evaluating the reliability of a tip such as the 911 call here, in which a caller reports information from a third party regarding possible criminal activity, we consider the reliability of both the caller himself and the third party whose tip he conveys. See United States v. Brown, 925 F.3d 1150, 1153 (9th Cir. 2019) (considering both the fact that the caller was known and that the third-party tipster was anonymous in evaluating the reliability of such a tip).
The totality of the circumstances in this case demonstrates that the 911 call was sufficiently reliable to support reasonable suspicion. First, the statements by Witness 2 himself were undoubtedly reliable. Witness 2 provided his name and employment position, making him a known, and therefore more reliable, witness. See J.L., 529 U.S. at 270 (noting that a known informant is more reliable); see also Rowland, 464 F.3d at 907 (“[A] known informant‘s tip is thought to be more reliable . . . .“). Further, Witness 2 “reveal[ed] the basis of [his] knowledge“—explaining that multiple patrons told him that Vandergroen had a gun on him and offering to ask follow-up questions to the patrons about the exact location of the gun—thereby enhancing the tip‘s reliability. Rowland, 464 F.3d at 908. Finally, the fact that Witness 2 placed his call using an emergency line, which allows calls to be recorded and traced, increased his credibility. Foster, 908 F.3d at 1214.
Second, we conclude that, viewed collectively, the statements by Nica‘s patrons were also reliable. Although the patrons remained anonymous during the call,5 which generally cuts against reliability, their statements “exhibit[ed] ‘sufficient indicia of reliability‘” to overcome this shortcoming. J.L., 529 U.S. at 270 (quoting Alabama v. White, 496 U.S. 325, 327 (1990)). The reports were based on fresh, first-hand knowledge. The patrons reported personally seeing the gun on Vandergroen shortly before they reported it to Witness 2. “[P]olice may ascribe greater reliability to a tip, even an anonymous one, where an informant was reporting what he had observed moments ago, not stale or second-hand information.” Terry-Crespo, 356 F.3d at 1177 (internal quotation marks and citation omitted). Furthermore, the fact that the anonymous tipsters were Nica‘s patrons who were still at the bar when the 911 call was being made “narrowed the likely class of informants,” making their reports more reliable. Id. at 1174. Further still, the fact that multiple individuals reported seeing a gun also made the information more reliable. The existence of multiple tipsters, though anonymous, mitigates the specter of “an unknown, unaccountable informant . . . seeking to
harass another [by] set[ting] in motion an intrusive, embarrassing police search” by relaying false information. J.L., 529 U.S. at 271–72. Taken together, these factors rendered the information provided by the Nica‘s patrons through Witness 2 sufficiently reliable to support reasonable suspicion.
United States v. Brown, 925 F.3d 1150 (9th Cir. 2019), contrary to Vandergroen‘s contention, does not suggest otherwise. In
As to reliability, whereas the tip in Brown originated from a single witness who made clear “that she did not want to provide a firsthand report because she ‘[does not] like the police,‘” id. at 1152 (alteration in original), the 911 call here conveyed information from three witnesses, and none of them expressed reluctance to be held directly accountable for their reports. Moreover, the caller who relayed the tip in Brown did not personally see the suspect. Id. By contrast, the Nica employee in this case was looking at Vandergroen while making the 911 call, and was able to help the police identify Vandergroen by describing his movements in real-time. This factor further bolstered the reliability of the tip. Cf. Foster, 908 F.3d at 1214 (“One factor supporting the reliability of a tip is that the tipster claims eyewitness knowledge, coupled with sufficient detail in his description.“).
B. Potential Illegality of Reported Behavior
While the 911 call was thus reliable, it may only support reasonable suspicion if it also “provide[d] information on potential illegal activity.” Foster, 908 F.3d at 1214. In other words, a tip must demonstrate that “criminal activity may be afoot,” id. (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)), and the “absence of any presumptively unlawful activity” from a tip will render it inadequate to support reasonable suspicion, Brown, 925 F.3d at 1153. Furthermore, any potential criminal activity identified must be serious enough to justify “immediate detention of a suspect.” United States v. Grigg, 498 F.3d 1070, 1080–81 (9th Cir. 2007).
The 911 call gave the police reason to suspect Vandergroen was carrying a concealed firearm, which is presumptively a crime in California. See
Furthermore, the potentially illegal activity identified in the 911 call was serious enough to justify the “immediate detention of [the] suspect.” Grigg, 498 F.3d at 1080. In some circumstances, a tip that a suspect has completed only a misdemeanor may not support reasonable suspicion absent a
IV. Conclusion
In short, the 911 call in this case was both reliable and provided information on potentially criminal behavior. Witness 2 was reliable as an identified caller using an emergency line, and the Nica patrons’ reports he conveyed contained sufficient indicia of reliability to support reasonable suspicion. Furthermore, the reported activity—possessing a concealed weapon—was presumptively unlawful in California and was ongoing at the time of the stop. Thus, the 911 call generated reasonable suspicion justifying the stop and the district court was correct to deny Vandergroen‘s motion to suppress the evidence obtained during the stop.
AFFIRMED.