In a 5-4 decision decided in January, the United States Supreme Court effectively dished up more power onto the plates of law enforcement officers, giving them the authority to detain a person who flees at the mere sight of a policeman. Unprovoked flight upon the sight of police, said the Court, is the consummate act of evasion. Although it is not necessarily indicative of wrongdoing, it clearly is suggestive of such. Thus, in determining reasonable suspicion, the police can make commonsense judgments and inferences about human behavior. Although the concept of "reasonable suspicion" still remains somewhat intact – that is, the Court did not endorse a "bright-line" rule – the scales of justice are now clearly tipped in favor of the State.

The landmark case of Illinois v. Wardlow, 120 S.Ct. 673 (2000), is an interesting one. Two police officers, who were part of a four-car, eight-officer caravan, were patrolling a high crime area in Chicago that was known for its heavy narcotics trafficking. It was just about noon, on September 9, 1995, when their patrol cars passed 4035 West Van Buren. The defendant, Sam Wardlow, who was standing in front of that building, saw the patrol cars and immediately fled. Wardlow did not appear to be engaged in any criminal activity, nor was he a suspect in any crime. However, the officers saw that he had a white opaque bag under his arm which, in combination with flight, led them to believe that Wardlow was trafficking in drugs. The officers broke from the police caravan and chased the defendant.

Without announcing their office, or making any inquiries, the officers proceeded to conduct a pat-down search of Sam Wardlow. One of the officers squeezed the bag that he believed contained drugs, and discovered a .38 caliber handgun and several rounds of ammunition. Wardlow was arrested.

Prior to trial, the defendant filed a motion to suppress evidence. The court denied the motion, finding that the handgun was recovered during a lawful stop and frisk. Following a bench trial, Wardlow was convicted of unlawful use of a weapon by a felon. He appealed, and the appellate court reversed. The State then appealed the matter to the Illinois Supreme Court which affirmed.

The Illinois Supreme Court held firm on it’s decision not to further erode the protections of Fourth Amendment law, which guarantees the "right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures." This provision, said the Illinois Supreme Court judges, applies to all seizures of a person including those permitted under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the so-called "stop-and-frisk" case..

In Terry, the Court held that the public’s interest in effective law enforcement makes a reasonable detention of a person for questioning lawful, under certain circumstances, even though probable cause for an arrest is lacking. However, these limited investigatory stops are only permissible upon reasonable suspicion based on specific and articulable facts that a person has committed, or is about to commit, a crime. The Illinois Supreme Court concluded that flight from the police in a high crime area, without more, is not sufficient to justify such an investigatory stop.

Although this was a precedent-setting decision for Illinois, it had been previously visited by several other state courts reaching the same conclusion in applying the Terry standard. In fact, the majority of states uphold a citizen’s right to be free of police intrusion based upon flight alone.

In the United States Supreme Court, the State of Illinois argued for a "bright-line" rule authorizing police officers to temporarily detain anyone who flees at the sight of a law enforcement officer. The defense, too, argued for a "bright-line" rule, but in the opposite direction. The defense’s argument was that the fact that a person flees upon seeing a police officer can never, standing alone, justify a temporary investigatory stop. The Court rejected both per se rules, opting for--you got it--a "totality of the circumstances" analysis.

In the present case, said the Court, the two officers were patrolling a high crime area where they anticipated encountering a large number of seedy folks, the "druggies," the "traffickers," and the "lookouts." A police officer is not required to ignore the relevant characteristics of the location he is patrolling when he is deciding whether circumstances are suspicious enough to proceed with a further investigation. Thus, "high crime area" plus "flight" add up to "reasonable suspicion," concluded the Court. These were the "totality of the circumstances" particular to this case, and taken as a whole, were sufficient to reverse the decision of the Illinois Supreme Court.

The Court justified its holding stating that it was consistent with its decision in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319 (1983). In that case, the defendant was stopped at an airport by detectives and asked to accompany them to a room about 40 feet away. Royer’s baggage was retrieved from the airplane and brought to the room. He was then asked for consent to a search of his suitcases and he agreed, handing the officer the key. The entire encounter lasted no more than 15 minutes. The majority of the Court agreed, however, that the police could have used less intrusive methods of invading the defendant’s security. Further, there had been no facts that justified stopping Royer in the first place. Consequently, the Court held that when an officer, without reasonable suspicion or probable cause, approaches an individual, that individual has the right to ignore the police and go about his or her business.

But, the Court then went on to distinguish Royer–where the defendant had the right to ignore the police--from Wardlow, where the Court felt the defendant did not have the right to ignore the police. Thus, the cases are not inconsistent, the Court concluded. In the case at bar, the Court refused to consider unprovoked flight as a mere refusal to talk to the police or cooperate. "Flight, by its nature, is not ‘going about one’s business’; in fact it is just the opposite." Therefore, permitting an officer confronted with such flight to stop a fugitive and investigate further is not inconsistent with an individual’s right to go about his business or stay put and remain silent if questioned.

The defense vigorously argued that there are numerous innocent reasons for a person to take flight upon seeing police officers, none of which are necessarily indicative of criminal activity. While the majority acknowledged this was true, it quickly glossed over the point, reminding the defense that even in Terry the conduct justifying the stop was ambiguous and susceptible of an innocent explanation. Further, a Terry stop is a minimal intrusion which simply permits an officer to briefly investigate further. If the officer finds nothing amiss, and the investigation does not cause the suspicion to rise to the level of probable cause, the person is allowed to go. But here, Wardlow was carrying a handgun, folks, so there is no question as to the propriety of the arrest, concluded the Court. Note: The sole issue before the Wardlow court was whether the initial stop was supported by reasonable suspicion. The issue of the lawfulness of the frisk, independent of the stop, was not before this Court.

The dissent agreed with the majority that no "bright-line" rule should be endorsed on this matter, since the concept of reasonable suspicion is not easily reduced to a specific set of legal rules. Thus, looking at the totality of circumstances--the whole picture--would render the better outcome on a case by case basis.

However, the dissent, when applying the totality of the circumstances analysis here, arrived at the opposite conclusion. Thus we have the often frustrating question as to what is "right" or "wrong" in any given situation. Obviously, if the judges cannot agree, how are the police to know what commonsense set of circumstances amount to a legally sufficient level of reasonable suspicion? Again, there is no clear answer. We can only speculate by clarifying the statements proffered by the majority and the dissent.

So, what commonsense conclusions can be drawn regarding the motive of a person running in the face of a police officer? The innocent reasons, such as catching up with a friend, reaching the bus stop before the bus arrives, or getting home before a lightning storm, are all valid ones for the dissent. But, you’ll agree, the not-so-innocent reasons raised by the majority, such as escaping from jail, possessing contraband, weapons and stolen property, are just as valid. And, flight to escape police detection may also be innocent. For instance, a person may run from the scene of a crime simply because he’s unwilling to be a witness, or because he fears reprisals from those who committed it. In short, there are unquestionably circumstances in which a person’s flight is suspicious, and undeniably instances in which a person runs for entirely innocent reasons.

The dissent further suggested a number of different circumstances, such as the time of day, the character of a neighborhood, whether the officers are in uniform, the way the runner was dressed; (Is this not discriminatory? A person with blue hair? A male with earrings? A male dressed as a female?); the direction and speed of the person’s flight; and, whether his behavior was otherwise unusual. All of these observations should reasonably be factored into the equation, said the dissent.

Additionally, argued the dissent, a reasonable person, when seeing the police cruising an area, may conclude that there is a crime being committed and with it an element of danger. Is it not commonsense to run from such situations? Minorities were particularly targeted by the dissenting justices as having an inherent suspicion of law enforcement officers and thus the desire to run from any contact with them. This is not, argued the dissent, a rare or random event, especially in high crime areas.

The probative force of all the above inferences which can be drawn from flight is a function of varied circumstances in which it occurred. Sometimes the inferences are consistent with innocence; sometimes they justify a need for further investigation, and; sometimes they justify an immediate stop and search for weapons.

Guided by the totality of the circumstances test, on which all of the Justices agree, the dissent respectfully set forth the following analysis, based on the facts found in the record:

The defendant was arrested in the early afternoon. The arresting officers were part of an eight-officer, four-car caravan patrol team. They were all headed in the direction of Chicago's 11th District, a high crime area. Officer Nolan testified that he was in uniform that day, and the reason why they traveled in a caravan was the "enormous amount of people, sometimes lookouts, sometimes customers." One of the officers also said he could not recall whether he was driving a marked or an unmarked car. Further, he could not remember whether the other officers were in uniform and whether they were driving marked or unmarked cars.

When the arresting officers, who were the last in the four-car caravan, first saw the defendant, they testified that Wardlow "looked in our direction and began fleeing." They then pursued the defendant as he ran through an alley and saw a white opaque bag under his arm. When they caught Wardlow, the protective search turned up a handgun.

There are too many pieces missing from this puzzle, concluded the dissent. The arresting officer could not recall whether the officers were in uniform and whether they were driving marked or unmarked cars. Further, he did not testify as to whether there were other people standing outside 4035 West Van Buren. Additionally, there was no testimony as to how fast the officers were driving, and whether the other cars in the caravan had already passed Wardlow. Why, remarked the dissent, even the Illinois appellate court thought this record was too scant and vague to support an inference that Wardlow’s flight was related to his belief that the police were after him. Looking at the other circumstances, too, the inferences drawn by the majority do not support the verdict, said the dissent. This was a high crime area where innocent people have an even stronger motivation for unprovoked flight, making an inference of guilt less, not more likely. Are you adequately confused now? Taking the same facts, the same set of inferences, and drawing different conclusions? Isn’t that precisely what the Court is doing here?

So, what is the rule of Wardlow's case? It is difficult to say. And with a 5-4 decision, it becomes even more speculative. Since the justices can't agree, this probably means we will have to revisit similar circumstances in many future cases to either resolve the issues, or untangle them into a less murky posture. At this juncture, we would chance to say: When an officer is in uniform, driving a marked police car in a high crime area in the middle of the night, and hookers, addicts and pushers are roaming the streets and there's a lookout on every corner . . . flight is probably a darn good indication of a guilty motive! But is it "reasonable articulable suspicion" sufficient for a Terry stop?

One thing is certain in the uncertain aftermath of the Wardlow case: the citizens’ expectation of privacy, especially those who live in high crime areas, has been reduced by the decision. As one commentator wrote after the Wardlow decision was handed down: "those who live in high crime areas are condemned by their surroundings to reduced expectations of ‘life, liberty and the pursuit of happiness.’"

While both the majority and dissent agreed there is no per se rule, the opinions came close to holding that there was one for high crime areas: "It looks like a duck, walks like a duck, it must be a duck." Perhaps we can agree to this summary of the opinion:

When uniformed police officers are in an area known for heavy narcotics trafficking–an area upon which they are converging with the expectation that they might encounter a crowd of people, including lookouts for the drug traffickers as well as customers for the narcotic products, and if a person who is in the same area takes flight when he sees the officers, the officers have a reasonable suspicion of criminal activity which allows them to make a temporary seizure, for investigative purposes only, of the person who took flight. Remember: flight at sight is insufficient for reasonable suspicion; "presence in a high crime area" also is insufficient. But combine both and a temporary seizure may be justified.

---

Return to Master Index