Wednesday, July 8, 2020
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a suppression motion was properly denied in the case of a man subsequently convicted of being a felon in possession of a firearm, rejecting his contention that police improperly conducted a warrantless search of his vehicle based merely on a tipster’s 911 call.
Senior District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation, wrote the opinion. It affirms the ruling by District Court Chief Judge Phyllis J. Hamilton of the Northern District of California that police properly stopped and searched the car being driven by defendant Shane Vandergroen.
They acted pursuant to a phone call from a man who worked in a bar in Concord reporting that three female patrons had spotted a skinny Latino in his 20s clad in a blue sweater with a Warriors logo with a gun in his waistband, and that he was now in the parking lot.
When police arrived, the caller described the automobile in which the man had driven off. Police spotted the vehicle and Vandergroen matched the description—except that he is not Latino.
‘Totality of Circumstances’
“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….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….The 911 call here satisfied both requirements.”
He said statements by the bar employee who phoned “were undoubtedly reliable.” Noting that he gave his name and told what he did at his workplace, and set forth the basis of his knowledge—reports to him from three customers. Also, Rakoff pointed out, he used an emergency line, which means the call was recorded.
Although the identities of the patrons were not disclosed, their reports “were based on fresh, first-hand knowledge” and “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, the visiting jurist explained, adding:
“Further still, the fact that multiple individuals reported seeing a gun also made the information more reliable.”
The information also indicated that a crime was being committed—carrying a concealed weapon is a crime in California—and was an offense of such severity as to warrant immediate detention.
Other contentions were dealt with is a separate memorandum opinion, signed by Rakoff and Circuit Court Judges Michelle T. Friedland and Mark J. Bennett.
The judges rejected the defendant’s characterization of the “stop” as an “arrest,” saying:
“Although the police used quite aggressive tactics over the course of their stop of Vandergroen, such tactics were reasonable in light of the police’s reasonable suspicion that Vandergroen was armed and Vandergroen’s lack of cooperation with commands.”
A frisk-search was appropriate, they said, explaining it “was warranted based on the 911 call providing police with reasonable suspicion that Vandergroen was carrying a gun.”
The search of the vehicle was proper as a protective measure, the opinion continues, setting forth:
“The police had reasonable suspicion that Vandergroen could gain immediate control of a gun in his car because they reasonably believed he had a gun somewhere in his possession and had not found one upon a frisk of his person. Although Vandergroen was handcuffed and in the back of a police car during the car search, he would have gained immediate access to this weapon if the police had released him after finding no open warrants and no weapon on his person.”
Vandergroen argued that his conviction must be reversed because an element of the offense is the defendant’s knowledge that he or she has the status of a felon. That element was not spelled out by the indictment or by the judge, he complained.
Such error, the judges said, does not justify a reversal unless it “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” There was, the declared, “overwhelming and uncontroverted...evidence” that Vandergroen knew was a convicted felon, pointing out:
“At the time the police found the gun in Vandergroen’s car, he had already been convicted of two felonies and sentenced to a prison term of over one year for each. Furthermore, one of those convictions was for being a felon in possession.”
The case is United States v. Vandergroen, 19-10075.
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