United States v. Shane Vandergroen

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10075
Plaintiff-Appellee,
D.C. No.
v. 4:18-cr-00133-PJH-1
SHANE MAURITZ
VANDERGROEN, OPINION
Defendant-Appellant.
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
*
The Honorable Jed S. Rakoff, Senior District Judge for the
Southern District of New York, sitting by designation.
2 UNITED STATES V. VANDERGROEN
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.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. VANDERGROEN 3
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.
OPINION
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 18 U.S.C. § 922(g)(1). Vandergroen now argues
that the 911 call should never have led to his stop in the first
place because it did not generate reasonable suspicion, and
that the evidence of the pistol should therefore have been
excluded. We disagree, and affirm the district court’s denial
of Vandergroen’s motion to suppress. 1
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
1
In a concurrently filed memorandum disposition, we reject
Vandergroen’s alternative suppression arguments, as well as his
challenge to his conviction based on Rehaif v. United States, 139 S. Ct.
2191 (2019).
4 UNITED STATES V. VANDERGROEN
(“Nica”) in Concord, California called 911 2 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
2
The Government’s brief appears to assume that the call was
directly to police dispatch rather than to 911. Although the difference is
immaterial to our decision, the basis for the Government’s assumption is
unclear. Given that the district court characterized the call as a 911 call,
and the record does not indicate this finding was clearly erroneous, we
adopt this characterization. See United States v. Torres, 828 F.3d 1113,
1118 (9th Cir. 2016) (“We review the denial of a motion to suppress
evidence de novo, and any underlying factual findings for clear error.”).
3
Vandergroen is not, however, Latino.
UNITED STATES V. VANDERGROEN 5
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 running 4
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 18 U.S.C. § 922(g)(1). Before trial,
Vandergroen filed a motion to suppress evidence found in
4
Vandergroen started running before the police arrived on the scene,
and there is no indication that he did so in response to the police.
6 UNITED STATES V. VANDERGROEN
the course of his arrest, arguing, inter alia, that the 911 call
did not generate reasonable suspicion justifying his initial
stop. The district court denied the motion. Vandergroen then
requested that the case be set for a stipulated-facts bench
trial, reserving the right to appeal the denial of the motion to
suppress. After accepting the parties’ factual stipulations, the
district court adjudged Vandergroen guilty. Vandergroen
filed a timely notice of appeal.
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.
UNITED STATES V. VANDERGROEN 7
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
8 UNITED STATES V. 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
5
That the FBI was later able to identify one of the witnesses for an
interview, does not alter this analysis. “The reasonableness of official
suspicion must be measured by what the officers knew before they
conducted their search,” not after. Florida v. J.L., 529 U.S. 266, 271
(2000).
UNITED STATES V. VANDERGROEN 9
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 Brown, we determined that a call made by an
identified witness at the behest of an anonymous witness
reporting a man with a gun did not support reasonable
suspicion because the tip was neither reliable nor indicative
of potentially illegal activity. As we explained, “[t]he tip
suffer[ed] from two key infirmities—an unknown,
anonymous tipster and the absence of any presumptively
unlawful activity.” Id. at 1153. Brown does not control in
this case because the 911 call here was both more reliable
than the tip in Brown and (as explained further below)
conveyed information about presumptively unlawful
conduct.
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
10 UNITED STATES V. VANDERGROEN
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 Cal. Penal Code
§ 25400. Witness 2 indicated that patrons had seen
Vandergroen with a gun “on him.” This language, conveyed
to the police by the dispatcher, would suggest to a reasonable
police officer that Vandergroen at least potentially had the
gun concealed on his body. We have recognized that because
California “makes it generally unlawful to carry a concealed
weapon without a permit . . . a reasonable officer could
conclude that there is a high probability that a person
identified in a 911 call as carrying a concealed handgun is
violating California’s gun laws.” Foster, 908 F.3d at 1215–
16. As such, the tip provided information on potentially
illegal activity. This was in contrast to the tip in Brown,
which did not describe conduct that was presumptively
illegal in Washington, where that case arose. See id.; cf.
Brown, 925 F.3d at 1153–54 (holding that a tip that a man in
UNITED STATES V. VANDERGROEN 11
Washington was carrying a gun was not “reliable in its
assertion of illegality” because “[i]n Washington State, it is
presumptively lawful to carry a gun”).
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
“likelihood for ‘ongoing or repeated danger,’ or
‘escalation.’” Johnson v. Bay Area Rapid Transit Dist.,
724 F.3d 1159, 1175 (9th Cir. 2013) (quoting Grigg,
498 F.3d at 1081) (holding that a stop for a reported
completed misdemeanor battery was not justified where the
suspect was “doing nothing but talking” when the officer
arrived). Vandergroen argues that his conduct was too minor
to justify a stop because it consisted at most of a completed
“wobbler,” that is a crime that is punishable as either a felony
or misdemeanor. Vandergroen fails to note, however, that
the police had reason to suspect he was committing an
ongoing crime when stopped in his car because the crime of
carrying a concealed weapon includes concealing the
weapon in a car. Cal. Penal Code § 25400(a)(1). The tip’s
indication that Vandergroen was engaging in this continuing
illegal activity means that there was an ongoing danger and
the immediate detention of Vandergroen was warranted.
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
12 UNITED STATES V. VANDERGROEN
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.