Flight as Justification for Seizure.

Supreme Court Rulings

The Fourth Amendment to the U.S. Constitution prohibits government agents from conducting unreasonable seizures. The U.S. Supreme Court has ruled that a Fourth Amendment seizure of a person only occurs when a government agent intentionally uses physical force or a show of authority so that a reasonable person would not feel free to leave or to end the encounter. [1] Voluntary contact between an individual and the police is not a Fourth Amendment seizure. [2] Voluntary contact includes a police officer approaching an individual and simply asking questions. [3] Temporary investigative detentions are among the law enforcement actions, other than arrests, that have been held to constitute Fourth Amendment seizures. [4]

A temporary investigative detention allows a law enforcement officer, with reasonable suspicion to believe that a subject is engaged in criminal behavior, to detain that subject while the officer conducts further reasonable investigation. [5] Not all temporary investigative detentions are the same. What the law enforcement officer does during the detention to confirm or allay the officer's suspicions depends upon the facts of each particular detention. [6]

The length of the detention is limited to the reasonable time necessary to investigate the officer's suspicions. [7] Therefore, officers who have not developed probable cause to justify an arrest, or who have not allayed their suspicions, may be required to release a temporary detainee after a reasonable time. [8] As a general rule, temporary detainees should not be moved. [9] A temporary detention alone does not justify a search of the detainee's person or the area within the detainee's immediate control. However, a reasonable suspicion, also based upon articulable facts and circumstances, that the detainee is armed justifies a frisk of the detainee's outer clothing for weapons. [10]

The reasonableness of Fourth Amendment seizures depends upon the amount of knowledge that the seizing officer possesses at the time of the seizure. An arrest requires that the officer has probable cause to believe the subject arrested is committing or has committed a crime. A temporary investigative detention is reasonable when the officer has reasonable suspicion, based upon articulable facts and circumstances, that the detainee has been or is engaged in criminal behavior. [11]

What facts are sufficient to constitute the reasonable suspicion necessary to temporarily detain someone? Can an individual's flight from an officer, upon the individual becoming aware of the officer's presence, justify the officer pursuing the individual and detaining the individual against the individual's will? The Supreme Court recently addressed this issue in the case of Illinois v. Wardlow [12] providing both guidance and additional questions for the law enforcement officer.

Illinois v. Wardlow

On September 9, 1995, police officers were driving a four-car caravan through an area of Chicago known for heavy narcotics trafficking. Two uniform officers in the last car of the caravan observed William Wardlow standing on the sidewalk holding an opaque bag. Wardlow looked in the direction of the officers and immediately fled. The officers gave chase and caught Wardlow. One of the officers justified conducting a frisk for weapons, due to his experience that weapons were commonly present in the vicinity of narcotics transactions. The officer found the opaque bag, squeezed it, and felt a hard object in the shape of a gun. The officer opened the bag and found a loaded handgun. Wardlow was then arrested for a weapons violation. [3]

At trial, Wardlow moved to suppress the weapon by arguing that his detention and the subsequent frisk were unreasonable under the Fourth Amendment. The trial court held that the officer's actions were a lawful stop and frisk. However, two Illinois appeals courts reversed. The First District Appellate Court of Illinois ruled that flight alone does not justify an investigative detention. The court said that despite the fact that the officers were in a "high narcotics traffic" area, there was no testimony that the actual location where Wardlow was standing when he was first observed was a "specific area of narcotics activity." Without such testimony, the Appellate Court of Illinois decided the trial court was in error in finding a reasonable suspicion that Wardlow was engaged in criminal activity. [14]

On further appeal, the Illinois Supreme Court disagreed with the Appellate Court of Illinois and ruled that the officers could consider the common criminal activity in the area where Wardlow was first observed. However, unlike the Appellate Court of Illinois, the Illinois Supreme Court concluded that sudden unexplained flight, even in a high-crime area, may not be considered in determining if there is a reasonable suspicion of criminal activity that justifies a temporary detention. [15] The Illinois Supreme Court viewed Wardlow's flight as nothing more than a refusal to agree to a voluntary conversation and held that no inference could be drawn from it. Therefore, the Illinois Supreme Court ruled that the trial court erred in allowing the officer to consider the flight in finding a reasonable suspicion of Wardlow being involved in criminal activity. [16] The U.S. Supreme Court agreed to hear Illinois' appeal.

Supreme Court Holding

Chief Justice Rehnquist, writing for a 5-4 majority of the Court, noted that the officers were bound by the Terry standard of reasonable suspicion in effecting their investigative detention of Wardlow, and that reasonable suspicion must be based on something more than an "inchoate and unparticularized suspicion or 'hunch' of criminal activity." [17] The Court noted that Wardlow's mere presence in an area of expected criminal activity was insufficient justification of a reasonable suspicion of criminal activity. [18] However, unlike the Appellate Court of Illinois, the Court ruled his presence in a high-crime area was a relevant fact which the officers could consider in deciding if there was a reasonable suspicion that Wardlow was involved in criminal activity. [19]

The Court then held that unexplained flight, upon noticing the police, is a pertinent factor in determining if reasonable suspicion exists. The Court noted that its earlier decisions had recognized nervous behavior as a pertinent factor in such a determination. [20] Justice Rehnquist rationalized that, "head-long flight--whenever it occurs--is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.... The determination of reasonable suspicion must be based on common sense judg-ments and inferences about human behavior." [21] He noted that while there are innocent reasons for flight from police, the standard of knowledge for an investigative detention, reasonable suspicion, does not require absolute proof of criminal activity. The Fourth Amendment requires reasonable action by the police; it does not require that everyone who is temporarily detained be guilty of a criminal offense. [22] For these reasons, the Illinois Supreme Court ruling was reve rsed.

Totality of Circumstances

The most important lesson for law enforcement to learn from the Wardlow decision is that the Supreme Court did not hold that unexplained flight from the police, in and of itself, is a sufficient justification for a temporary detention. A close reading of the majority decision reveals that the Supreme Court did not address this issue because there was another factor besides the flight--the presence in the high-crime area--and together these two factors justified the reasonable suspicion of criminal activity.

Justice Stevens said in a dissent that the majority had refused to adopt both the Illinois Supreme Court holding that unexplained flight is never a justification for a reasonable suspicion of criminal activity, and the opposing view that unexplained flight alone is always justification for such a suspicion. Clearly, the majority decision rejected an absolute ban on the use of unexplained flight as a factor in justifying reasonable suspicion. However, it did not decide the issue of whether unexplained flight alone constitutes reasonable suspicion of criminal activity. Instead, under the Wardlow facts, the majority of the Supreme Court adopted a middle ground that unexplained flight is a factor that an officer may use in developing a reasonable suspicion of criminal activity that will justify a temporary detention. [23]

This continues the long-standing "totality of the circumstances" test, which officers must meet to justify reasonable suspicion or probable cause. [24] Under such a test, it is unlikely that the Supreme Court ever will hold that any one particular factor always justifies a reasonable suspicion of criminal activity in all circumstances. For example, an individual wearing a ski mask outside a bank normally gives rise to a reasonable suspicion of criminal activity. But what if it is January in Minnesota? Likewise, an individual who unexplainedly flees upon noticing a police officer normally arouses a suspicion of criminal activity. However, an individual in running clothes stretching on a street corner who begins to run at the approach of an officer does not arouse such a suspicion. The totality of the circumstances test is just that--consideration of all of the circumstances.

What other factors, aside from presence in a high crime area, will, in conjunction with unexplained flight, justify a reasonable suspicion of criminal activity in light of the Wardlow holding? What if a law enforcement officer encounters a group of individuals in a low-crime area? If they flee upon seeing an officer, is the officer justified in temporarily detaining them in an attempt to determine why they fled? Individuals in a low-crime area may arguably have less reason to flee upon the sight of the police without having the desire to avoid the detection of criminal activity, than do individuals in a high-crime area where public opinion of the police may be less favorable. [25] Officers still must articulate all of the facts that led to their suspicion of criminal activity. Officers cannot simply list the unexplained flight and assume that because of the Wardlow decision the flight alone will be enough.

The Wardlow decision does not affect the law regarding frisks for weapons during temporary detentions. [26] The law is clear that the reasonable suspicion of criminal activity that justifies a temporary detention does not, by itself, also justify a frisk for weapons. [27] To justify such a frisk, the officer must articulate specific facts and circumstances justifying the officer's reasonable suspicion that the detainee is armed. [28]

A frisk for weapons, based upon a reasonable suspicion that the detainee is armed, must be limited to just that--a pat-down search for weapons on the detainee's person and within the detainee's area of immediate control. [29] If the detained individual is in a vehicle and a law enforcement officer has a reasonable suspicion to believe the individual is armed, the Supreme Court has ruled that the frisk for weapons may be expanded to include the passenger compartment of the vehicle. [30] This is justified by the fact that the officer may have to let the detainee get back into the vehicle if probable cause is not developed during the detention. During a frisk for weapons, suspicious items may only be further examined if the officer has a reasonable suspicion to believe that the item is a weapon or if the officer immediately recognizes it to be contraband or other evidence of criminal activity. [31] A frisk of a vehicle must be limited to those areas where an officer could reasonably expect a weapon to be locate d. [32]

In Wardlow, the frisk of his person and the opaque bag only could be justified by the fact that Wardlow was in an area known for "heavy narcotics trafficking" combined with the officer's experience that guns are prevalent in such areas. [33] The law enforcement administrator must insure that officers understand the Terry standards of reasonable suspicion for both a temporary investigative detention and for a frisk for weapons as part of that same temporary detention.

The Wardlow decision does not change in any way the law concerning an individual's rights and obligations when confronted by the police. An individual still is constitutionally justified in refusing to engage in a voluntary conversation with a police officer. [34] Unless the officer can articulate a reasonable suspicion that the person is involved in criminal activity, the officer may not prevent the individual from leaving such an encounter. [35] All Wardlow adds to the law in this area is that if the individual flees, instead of walking away, the officer may consider the flight in the totality of circumstances in deciding if there is a reasonable suspicion of criminal activity.

Reasonable suspicion (in the case of temporary detentions) and probable cause (in the case of arrests) is determined by what the officer knows at the time a seizure is made. Therefore, it is important to know when a seizure occurs. The Supreme Court considered this issue in California v. Hodari D., [36] the facts of which are remarkably similar to Wardlow. Two Oakland officers wearing police jackets were patrolling a high-crime area in an unmarked vehicle and came upon a group of youths standing at a vehicle. The youths and the vehicle fled at the appearance of the police vehicle. The officers gave chase and one officer was able to flank Hodari, who then tossed away what appeared to be a "rock." Hodari was captured, and the rock turned out to be crack cocaine.

California state appellate courts ruled that the seizure of Hodari occurred when Hodari saw the officer running towards him, before he tossed the "rock." California conceded that the officer did not have a justifiable reasonable suspicion of criminal activity until Hodari threw the "rock." [37] Therefore, the U.S. Supreme Court only addressed the issue of when the seizure occurred, not whether Hodari's flight justified reasonable suspicion of criminal activity. Justice Scalia, writing for a 7-2 majority, held that the seizure did not occur until the officer gained control of Hodari, not when the chase began. In that light, the detention was reasonable because at the time the officer caught Hodari, the officer had already observed Hodari throw the "rock." [38]

Conclusion

Law enforcement administrators must continue to evaluate their policies concerning what actions are appropriate when an individual flees upon the approach of a police officer. Officers must be instructed to note all pertinent facts observed both before and during any chase. These facts are essential to support a reasonable suspicion of criminal activity necessary to justify a temporary investigative detention.

Endnotes

(1.) United States v. Mendenhall 446 U.S. 544, 554 (1980).

(2.) Florida v. Bostick 501 U.S. 429, 434 (1991).

(3.) Id.

(4.) Terry v. Ohio 392 U.S. 1, 19 (1968).

(5.) Id. at 22.

(6.) Id. at 27.

(7.) United States v. Montoya de Hernandez 473 U.S. 531, 543 (1985).

(8.) United States v. Place 462 U.S. 696, 709-10 (1983).

(9.) Hayes v. Florida 470 U.S. 811, 814 (1985).

(10.) Terry v. Ohio, at 24.

(11.) Id. at 21.

(12.) 120 S. Ct. 673 (2000)

(13.) Id. at 674-75.

(14.) People v. Wardlow 678 N.E.2d 65, 67 (Ill. App. 1 Dist. 1997).

(15.) People v. Wardlow 701 N.E.2d 484, 486 (Ill. 1998).

(16.) Id. at 486-87.

(17.) Illinois v. Wardlow supra. at 676.

(18.) Id. citing Brown v. Texas 443 U.S. 47 (1979).

(19.) Id. citing Adams v. Williams 407 U.S. 143 (1972).

(20.) Id.

(21.) Id.

(22.) Id. at 677.

(23.) Id.

(24.) Id. at 682, Justice Stevens dissenting.

(25.) Id. at 680-81, Justice Stevens dissenting.

(26.) Id. at 676.

(27.) Terry v. Ohio, at 24; Adams v. Williams, at 146.

(28.) Id.

(29.) Michigan v. Long 463 U.S. 1032 (1983).

(30.) Id. at 1049.

(31.) Minnesota v. Dickerson 113 S. Ct. 2130, 2139 (1993).

(32.) Michigan v. Long, at 1049.

(33.) The U.S. Supreme Court did not decide if the frisk of Wardlow was justified because that issue was not before it.

(34.) Florida v. Royer 460 U.S. 491, 498 (1983).

(35.) Id. at 505.

(36.) 499 U.S. 621 (1991).

(37.) Id. at 623.

(38.) Id. at 626.