N.D.Cal.: Def’s stop here was really no more than on a hunch; RS lacking for mere proximity to a crime

On the totality, officers lacked reasonable suspicion to stop defendant for mere proximity to a crime. The government’s hypotheticals don’t overcome that this was essentially a hunch. She stared straight ahead when there were a bunch of police cars around, and she had an out of state LPN. United States v. Lopp, 2016 U.S. Dist. LEXIS 61972 (N.D.Cal. May 10, 2016)*:

Here, the totality of the circumstances indicates that the deputies lacked the requisite reasonable suspicion to justify the initial stop. The record indicates that the basis for this investigatory stop, while made in good faith, amounted to little more than an “unparticularized hunch.” Terry, 392 U.S. at 27. It appears that law enforcement sought to stop any vehicle that was in the vicinity of the ongoing crime, whether the maroon truck at the carwash or the silver SUV parked curb-side across the street. Proximity to the scene of a crime, however, cannot by itself furnish reasonable suspicion. Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). This type of indiscriminate sweep, absent certain narrow exceptions to the warrant requirement, is impermissible under the Fourth Amendment. If there is a particularized basis for the stop, it is the government’s burden to articulate it. Scott, 705 F.3d at 416-17. Here, the government’s attempts to articulate the basis for the stop fall short for several reasons.

First, the discrepancies between accounts render it difficult to credit any one version of events concerning Lopp’s purportedly nervous and evasive behavior. Indeed, even the government admits that the record is uncertain, stating in its final brief that many details crucial to a finding of reasonable suspicion “may or may not” have happened. …

Second, the government’s position is severely undermined by the fact that the deputies’ observations of Lopp did not corroborate crucial details in the sole dispatch specifying the profile of a potential accomplice. …

. . .

The deputies also observed that Lopp drove away soon after they pulled into the parking lot, which they found suspicious in light of her earlier body language. This action, the government argues, constitutes evasion and flight, particularly in light of her nervous behavior. However, the government’s characterization of Lopp’s driving away as flight—the “consummate act of evasion”—is inapposite. …

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