                                                                             FILED
                           NOT FOR PUBLICATION                               MAR 29 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-30060

              Plaintiff - Appellee,              D.C. No. 2:10-cr-06024-RMP-1

  v.
                                                 MEMORANDUM *
MONYA DEMONDA TOWNSEND,

              Defendant - Appellant.



                  Appeal from the United States District Court
                     for the Eastern District of Washington
             Rosanna Malouf Peterson, Chief District Judge, Presiding

                       Argued and Submitted March 9, 2012
                               Seattle, Washington

Before: PAEZ and MURGUIA, Circuit Judges, and TUCKER, District Judge.**

       Monya Demonda Townsend was charged with being a felon in possession of

a firearm in violation of 18 U.S.C. y 922(g). He pled guilty pursuant to a




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Josephine Staton Tucµer, District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
conditional plea that preserved his right to appeal the district court's denial of his

motion to suppress evidence. We reverse.

      In the early morning hours of December 13, 2006, the Pasco, Washington

Police Department dispatched officers to the Red Lion Inn based on an anonymous

tip that a blacµ male wearing a blue shirt was possibly in possession of a firearm.

The officers were told to looµ for a burgundy SUV. The Red Lion Inn was a

popular bar where officers often responded to calls regarding fights, public

intoxication, disorderly conduct, or gang issues. The tip lacµed predictive detail

and alone was insufficient to establish reasonable suspicion of criminal activity.

See Florida v. J.L., 529 U.S. 266, 270-72 (2000).

      When police officers arrived at the scene, Red Lion security personnel

pointed toward a burgundy SUV in the hotel's parµing lot. The officers observed a

crowd approximately fifteen feet away from the SUV. They believed that the

passengers inside the SUV were engaged in a verbal altercation with members of

the crowd because one of the individuals inside the SUV twice made a 'jabbing

µind of gesture' and an officer could see that the individual's 'mouth [was]

going.' Due to their vantage point, the officers could not see the SUV occupants'

hands. The officers commanded the driver to stop the vehicle. It not stop

immediately, but rolled forward at a speed of two to three miles per hour for

several feet before coming to a complete stop. At the hearing on Townsend's
motion to suppress, the officers acµnowledged that they could not identify any

criminal activity at the time they stopped the vehicle.

      The officers' observations upon arrival at the Red Lion did nothing to assure

the tipster's basis of µnowledge or veracity. See id. at 270-71. Nor did the officers

observe 'some objective manifestation that the person stopped [wa]s, or [wa]s

about to be, engaged in criminal activity.' United States v. Cortez, 449 U.S. 411,

417 (1981). Therefore, the Terry stop was unlawful and the district court erred in

denying Townsend's motion.1

      REVERSED and REMANDED.




      1
       We do not reach Townsend's de facto arrest claim, nor his claim that the
gun seized from the SUV was not in plain view.
                                                                             FILED
United States v. Townsend, Case No. 11-30060                                  MAR 29 2012
Murguia, Circuit Judge, dissenting:                                       MOLLY C. DWYER, CLERK
                                                                           U.S . CO U RT OF AP PE A LS

      I respectfully dissent. In my view, the dispatch call in this case was far more

reliable than an anonymous tip. Upon their arrival at the scene, the officers saw

the security guards point to a suspect and a vehicle, both of which matched the

description relayed by the dispatch call. This action by the security guards

indicated that the call had liµely come from hotel staff and was, therefore, more

reliable than a tip where the record is completely silent as to the tip's source. See

Florida v. J.L., 529 U.S. 266, 275 (Kennedy, J., concurring) ('[A] tip might be

anonymous in some sense yet have certain other features, either supporting

reliability or narrowing the liµely class of informants, so that the tip does provide

the lawful basis for some police action.').

      In addition, the call had warned of possible dangerous conduct and the

officers observed the suspect in an agitated state. The suspects also refused to

comply with the officers' repeated commands to show their hands before the

vehicle started rolling forward. In light of the officers' training, experience, and

familiarity with past instances of violence at that same location, I believe their

conduct was reasonable. Because I would affirm the district court's denial of the

motion to suppress, I respectfully dissent.
