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The wicked may flee, but the police may stop them.

In Illinois v. Wardlow,(1) the Supreme Court dealt with an issue that has been in doubt ever since Terry v. Ohio held that police officers may forcibly stop an individual for questioning upon "reasonable suspicion" of criminal conduct.(2) Terry and its progeny have further made it clear that the individual may refuse to answer questions and walk away.(3)

The question then arises of whether flight at the approach of the police is, without more, sufficiently suspicious to justify a Terry stop. In Wardlow, the Court did not disavow the principle that each case must be evaluated on its own facts,(4) but a five-justice majority essentially concluded that the answer is "yes."

In Wardlow, the defendant was standing on a street in "an area known for heavy narcotics trafficking"(5) when a four-car police "caravan" converged on the area. It was unclear whether Wardlow's location was their destination or if they were just passing through. When a police officer looked at Wardlow, the suspect took off.

The officer and his partner followed in their car and soon cornered him. Without asking any questions, an officer felt an opaque paper bag that Wardlow was carrying and discovered a gun. Wardlow was convicted of unlawful use of a weapon by a convicted felon.

The Illinois Supreme Court, after noting other states that had considered this issue had reached the same conclusion, held that neither flight alone nor flight from a known narcotics-trafficking area was sufficient to justify a Terry stop or a frisk.(6) The court reasoned that since an individual is free to ignore police inquiries and walk away, it followed that people could not be penalized for exercising this right "`at top speed.'"(7)

The court continued:
 A prime concern underlying the Terry decision is protecting the right of
 law-abiding citizens to eschew interactions with the police. Authorizing
 the police to chase down and question all those who take flight upon their
 approach would undercut this important right and upset the balance struck
 in Terry between the individual's right to personal security and the
 public's interest in prevention of crime.(8)

While this reasoning is convincing, the Supreme Court was not willing to travel the same logical path. As the majority pointed out, although an individual may have the right to ignore police and go about his or her business,
 flight, by its very nature, is not "going about one's business"; in fact,
 it is just the opposite. Allowing officers confronted with such flight to
 stop the fugitive and investigate further is quite consistent with the
 individual's right to go about his business or to stay put and remain
 silent in the face of police questioning.(9)

Suspicious behavior

While one may disagree with the Court as to whether flight is enough to justify a stop and frisk, surely the majority is correct that flight is suspicious, at least absent an apparent innocent justification such as that the suspect appeared to be running to catch a bus.

The Court acknowledged, as Justice John Paul Stevens pointed out in his dissent, that there may be "innocent reasons for flight from police and that, therefore, flight is not necessarily indicative of ongoing criminal activity."(10) But, in the Court's view, the less-than-probable-cause standard of "reasonable suspicion" for Terry stops was met. Flight is certainly not the usual reaction of inner-city residents, even guilty ones, upon seeing police for the simple reason that they realize that running is likely to arouse suspicion, as the Wardlow facts illustrate.

In California v. Hodari D., the Court noted the biblical admonition that "the wicked flee when no man pursueth" in holding that a "stop" did not occur until the police caught up with the suspect (without quite deciding the issue in Wardlow).(11) In his Wardlow dissent, Stevens tried to counter with another biblical quotation: "A shrewd man sees trouble coming and lies low; the simple walk into it and pay the penalty."(12)

However, this quotation simply establishes that the defendant, regardless of his wickedness, was not "shrewd," a characteristic shared by a large number of criminal defendants.

Wardlow never directly holds that flight alone is enough for reasonable suspicion, and Stevens congratulates the majority for eschewing such a "per se rule."(13) However, the majority's concession that flight is not "necessarily indicative of ongoing criminal activity" is not to say that it fails to establish "reasonable suspicion" by itself. This the majority comes very close to doing.

The only other factor cited by the majority to bolster police suspicion in Wardlow is the fact that the events took place in a high-crime area.(14) People who are found in a high-crime area are, by definition, more likely to be engaged in criminal activity than people who are found in a low-crime area.

However, as the dissent points out, the denizens of such a high-crime area may be more likely to want to avoid dealing with police and may, therefore, be more likely to flee even if they are not engaged in crime (though, as indicated above, this is not the usual recourse). Thus, the "high-crime area" circumstance adds little to the sum of the evidence available to the police in this case, one way or the other.

Accordingly, I assess the holding of Wardlow to be that flight is sufficient, by itself, to establish a reasonable suspicion giving rise to a Terry stop unless the police knew or should have known of an innocent explanation for that flight.

If, however, the defendant credibly raises this claim, the burden should be on the government to establish by a preponderance of the evidence that no innocent explanation was apparent to the police. Nothing in Wardlow suggests who should bear the burden of proof on this issue.

Other `suspicious' behavior

Although Wardlow appears to answer a rather narrow question--Does flight equal reasonable suspicion?--the case may prove to be more important for what it assumes, but does not actually decide. If a suspect does not have the right to flee without creating reasonable suspicion, what of the suspect who chooses the Supreme Court-approved method of ignoring police and going about his business?

Is the Court saying that a person can walk away, but not run away? How about someone who walks quickly? What if a person walks into the nearest doorway and then disappears inside the building? Surely these are all, more or less, "suspicious" behaviors.

Despite the Court's acknowledgment that these behaviors cannot create reasonable suspicion "without more,"(15) one suspects that "more" will not be much. For instance, a police officer saying, "The defendant seemed to be concealing something," or "Drawing from my experience, he looked like a narcotics addict," or, perhaps, just "He was in a high-crime area" may suffice. As a practical matter, Wardlow will encourage recalcitrant citizens to appear at least somewhat responsive to police inquiries, rather than run, walk, sidle away, or tell the police, "Go to hell!"--despite the fact that the latter three options are theoretically protected by the Constitution.

But this result would be directly contrary to the spirit of Terry, which strives to allow such independence. If the Court is serious about the right to walk away, then it should require police to tell people that they need not cooperate. (It must be noted that although such uncooperative behavior does not establish reasonable suspicion, the Court did not say that it cannot be used to supply the probable cause needed to turn a Terry stop into an arrest.)

The other concern in Wardlow is that the frisk was proper once the police had earned the right to stop the suspect. The Court did not decide this issue,(16) but its tacit approval of the officer's acts is apparent. The first thing the officer did was grab the bag "because, in his experience, it was common for there to be weapons in the near vicinity of narcotics transactions."(17)

What narcotics transactions? While it may be suspicious behavior to run away from police because that suggests that "criminal activity may be afoot," as Terry required,(18) flight does not indicate the crime the suspect may have committed or whether he or she is "armed and dangerous."(19) Indeed, Wardlow himself was not found to possess narcotics.

Terry only allows a frisk following a stop after "reasonable inquiries ... [have not] serve[d] to dispel [the officer's] reasonable fear for his own and others' safety."(20) Yet this frisk is apparently justified even though no "reasonable inquiries" were made. If mere suspicion of possession of narcotics is enough to justify a frisk, then suspicion of any "stoppable" crime is.

It is probably time for the Court to acknowledge, as it assumed in Wardlow, that Justice John Harlan's concurrence in Terry was correct: "Once that forced encounter [is] justified, ... the officer's right to take suitable measures for his own safety follow[s] automatically."(21) Given the proliferation of firearms in our society, once the police have reason to stop someone, a frisk is, and should be, the first order of business except for traffic stops. (Although the Court has recognized that traffic stops may put officers in danger, it has always been assumed that traffic stops do not give rise to an automatic frisk.)(22)

But if frisks are to be part and parcel of stops, as Wardlow assumes, the Court should no longer consider the stop to be a minor inconvenience but a serious intrusion on privacy that requires substantial justification.(23) Accordingly, the Court must make it clear that behavior short of running, even though it is somewhat suspicious, does not satisfy the "reasonable suspicion" standard, either by itself or combined with the suspect's being in a high-crime area.

Of course, no standard, including "reasonable suspicion" itself, will do much to constrain the creative police officer who can easily justify most stops with allegations about how the suspect acted or looked suspicious. Lawyers can do little more than arrange the law as best we can, hope police officers follow it, and exclude evidence in cases where the police cannot tell a convincing story.

The Court will get its chance to further explicate the law of stops later this year when it considers a stop and frisk based solely on an anonymous tip that a youth who was at a bus stop and wearing a plaid shirt had a gun.(24)

Full disclosure

If the Supreme Court is serious about the right to walk away, it should require police to tell people that they need not cooperate.


(1.) No. 98-1036, 2000 U.S. LEXIS 504 (U.S. Jan. 12, 2000).

(2.) 392 U.S. 1 (1968).

(3.) In Wardlow, the Court reiterated the holdings of Florida v. Royer, 460 U.S. 491, 497-98 (1983), that an "individual has a right to ignore police and go about his business," and Florida v. Bostick, 501 U.S. 429, 437 (1991), that "refusal to cooperate, without more, does not furnish the minimal level of suspicion needed for a detention or seizure." Wardlow, 2000 U.S. LEXIS 504, at *10-*11.

(4.) "The concept of reasonable suspicion ... is not `readily, or even usefully, reduced to a neat set of legal rules,'" but must be determined by looking to the "`totality of the circumstances--the whole picture.'" United States v. Sokolow, 490 U.S. 1, 7-8 (1989) (citations omitted).

(5.) Wardlow, 2000 U.S. LEXIS 504, at *4. This was disputed, but the Court accepted it as fact.

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

(7.) Id. at 487 (citation omitted).

(8.) Id. (quoting State v. Hicks, 488 N.W.2d, 359, 363-64 (Neb. 1992)).

(9.) Wardlow, 2000 U.S. LEXIS 504, at *11.

(10.) Id.

(11.) 499 U.S. 621, 623 (1991) (quoting Proverbs 28:1).

(12.) Wardlow, 2000 U.S. LEXIS 504, at *18 n.3 (Stevens, J., dissenting) (quoting Proverbs 22:3).

(13.) Id. at *19 (Stevens, J., dissenting).

(14.) Id. at *7, *9.

(15.) Id. at *11.

(16.) Id. at *8. n.2.

(17.) Id. at *6-*7.

(18.) 392 U.S. 1, 30.

(19.) Id. at 27.

(20.) Id. at 30.

(21.) Id. at 34.

(22.) See, e.g., Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per curiam) (holding that search was justified only after police noticed a large bulge under suspect's pocket).

(23.) For a detailed critique of pre-Wardlow "stop and frisk" cases, see Wayne R. LaFave, Pinguitudinous Police, Pachydermatus Prey: Whence Fourth Amendment `Seizures,' 1991 U. ILL. L. REV. 729.

(24.) J.L. v. State, 727 So. 2d 204 (Fla. 1998) (per curiam), cert. granted, 120 S. Ct. 398 (1999) (No. 98-1993).

Craig M. Bradley, a former assistant U.S. attorney, is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington.
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Author:Bradley, Craig M.
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Date:Apr 1, 2000
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