CA9: While a 911 call must be reliable, it must also refer to “criminal activity [that] may be afoot”

While a 911 call must be reliable, it must also refer to “criminal activity [that] may be afoot.” This satisfies both prongs. United States v. Vandergroen, 2020 U.S. App. LEXIS 21150 (9th Cir. July 7, 2020):

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 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.

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