Amicus Curiae Brief — Illinois v. Wardlow

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In the Supreme Court of the GQnited States

STATE OF ILLINOIS, PETITIONER

Vv.

SAM WARDLOW

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

DEBORAH WATSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

vee

QUESTION PRESENTED

Whether respondent’s sudden and unprovoked flight

from an identifiable police officer in a high-crime area

gave rise to a reasonable suspicion that respondent was

involved in criminal activity, justifying a temporary

investigative detention.

(I)

TABLE OF CONTENTS

Interest of the United States

Statement

Summary of argument

Argument:

Respondent's unprovoked flight from police officers

patrolling a high-crime area gave rise to a reason-

able suspicion of criminal activity and justified a

temporary investigative stop by the police 7

A. The Fourth Amendment permits limited

investigative stops and attendant protective

searches based on reasonable suspicion not

rising to the level of probable cause 7

B. Flight has historically been treated as probative

evidence of involvement in criminal activity ........... 10

C. Respondent’s sudden flight from indentifiable

police officers gave those officers reasonable

suspicion that he was involved in criminal

activity : 13

CUI cnnnsmsnaseinnnemeenerammmnen 22

TABLE OF AUTHORITIES

Cases:

Adams v. Williams, 407 U.S. 143 (1972) ................ 8, 9, 14, 17

Alabama v. White, 496 U.S. 325 (1990) 9

Alberty v. United States, 162 U.S. 499 (1896) ................. 12, 13

Allen v. United States, 164 U.S. 492 (1896) 12, 13

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

California v. Hodari D., 499 U.S. 621 (1991) ll

Carroll v. United States, 267 U.S. 132 (1925) ................... 12

Florida vy. Bostick, 501 U.S. 429 (1991) 19

~ Florida v. Rodriguez, 469 U.S. 1 (1984) 11

Florida v. Royer, 460 U.S. 491 (1983) 4, 18, 19

Gerstein v. Pugh, 420 U.S. 108 (1975) 12

Griffin v. Wisconsin, 483 U.S. 868 (1987) 7

(IIT)

Cases—Continued: Page

Hickory v. United States, 160 U.S. 408 (1896) ............... 12, 13

Husty v. United States, 282 U.S. 694 (1981) 11

INS v. Desgow 0, 466 U.S. 210 (1984) 5, 9, 15

Illinois v. aces, 462 U.S. 213 (1983) 14

Illinois v. Rodriguez, 497 U.S. 177 (1990) 15

Michigan v. Chesternut, 486 U.S. 567 (1988) 11-12

Michigan v. Long, 463 U.S. 1082 (1983) 21

Minnesota v. Dickerson, 508 U.S. 366 (1998) ................... 9

National Treasury Employees Union v. Von Raab,

489 U.S. 656 (1989) 7

People v. Shabaz, 378 N.W.2d 451 (Mich. 1985) ............... 13,

19, 20

Reid v. Georgia, 448 U.S. 438 (1980) 16

Sibron v. New York, 392 U.S. 40 (1968) 11

State v. Anderson, 454 N.W.2d 763 (1990) 16

State v. Hicks, 488 N.W.2d 359 (Neb. 1992) ................ 4, 13, 19

State v. Jackson, 434 N.W.2d 386 (Wis. 1989) ................ 14.15

State v. Talbot, 792 P.2d 489 (Utah Ct. App.

1990) 13, 19

Terry v. Ohio, 392 U.S. 1 (1968) 4, 5, 8, 20, 21

United States v. Amuso, 21 F.3d 1251 (2d Cir.),

cert. denied, 513 U.S. 982 (1994) 13

United States vy. Atlas, 94 F.3d 447 (8th Cir. 1996),

cert. denied, 520 U.S. 1130 (1997) 18

United States v. Brignoni-Ponce, 422 U.S. 873

(1975) ll

United States v. Brown, 159 F.3d 147 (3d Cir.

1998), cert. denied, 119 S. Ct. 1127 (1999) 18

United States v. Candelaria-Silva, 162 F 3d 698

(1st Cir. 1998) 13

United States v. Cortez, 449 U.S. 411 (1981) ............ 56,9, 17

United States v. Evans, 994 F.2d 317 (7th Cir.),

cert. denied, 510 U.S. 927 (1998) 18

Cases—Continued: Page

United States v. Gutierrez-Daniez, 131 F 3d 939

(10th Cir. 1997), cert. denied, 118 S. Ct. 1334

(1998) 18

United States v. Hegwood, 977 F 2d 492 (9th Cir.

1992), cert. denied, 508 U.S. 913 (1993) 13

United States v. Lender, 985 F 2d 151 (4th Cir.

1998) 18

United States v. Lucas, 778 F 2d 885 (D.C. Cir.

1985) 18

United States v. Montoya de Hernandez, 473 U.S.

531 (1985) 9

United States v. Murphy, 996 F 2d 94 (5th Cir.),

cert. denied, 510 U.S. 971 (1993) _ 13

United States v. Pungitore, 910 F 2d 1084 (3d Cir.

1990), cert. denied, 500 U.S. 915 (1991) 13

United States v. Sharpe, 470 U.S. 675 (1985) cece 12

United States v. Simpson, 992 F 2d 1224 (D.C.

Cir.), cert. denied, 510 U.S. 906 (1993) 10

United States v. Sokolow, 490 U.S. 1 (1989) ........... 5, 8,9, 11,

14, 15

United States v. Watson, 423 U.S. 411 (1976) ccm 7, 12

Watkins v. State, 420 A.2d 270 (Md. 1980) 13

Wilson v. Arkansas, 514 U.S. 927 (1995) 12

Wisconsin v. Mitchell, 508 U.S. 476 (1993) 21

Constitution:

U.S. Const. Amend. IV 7

Miscellaneous:

4 William Blackstone, Commentaries (St. George

Tucker ed. 1808) 12

Wayne R. LaFave, Search and Seizure (3d ed.

1996):

Vel. 2 18

Vol. 4 16

Jn the Supreme Court of the United States

Miscellaneous—Continued: Page

1 Christopher B. Mueller & Laird C. Kirkpatrick,

Federal Evidence (2d ed. 1994) | 13 No. 98-1036

. a a aa peer ‘ 13 STATE OF ILLINOIS, PETITIONER

Lawrence P. Tiffany et al., Detection of Crime

(Frank J. Remington ed. 1967) - 10 v.

2 John Henry Wigmore, Evidence (James H.

Chadbourn ed. 1979 & Supp. xa 12, 13 SAM WARDLOW

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether and under

what circumstances an individual's flight from an iden-

tifiable police officer will give rise to a reasonable

suspicion of criminal wrongdoing justifying a temporary

investigative detention. The Court’s resolution of that

question will affect the practices of federal law enforce-

ment agents who encounter that situation. The disposi-

tion of this case will also affect the admission in federal

prosecutions of evidence obtained by federal, state, and

local police officers who apprehend suspects after such

flight.

STATEMENT

1. On September 9, 1995, Police Officer Timothy

Nolan, a nine-year veteran with the Chicago Police

Department, was investigating narcotics sales in the

(1)

llth District. Officer Nolan and his partner Officer

Harvey were among eight officers in four police cars

traveling in a “caravan” east on West Van Buren

Street. Officers Nolan and Harvey were in the last car

of the caravan. Officer Nolan was dressed in full police

uniform, which included his badge, name tag, and

Chicago Police Department arm patch. At the hearing

conducted on respondent’s motion to suppress, Officer

Nolan testified that the area in question had a high

incidence of narcotics trafficking. Officer Nolan further

testified that he did not remember if his police car was

marked or unmarked. Pet. App. 1-2, 13-14; J.A. 4, 7-10.

As the four cars traveled down West Van Buren,

Officer Nolan noticed respondent Sam Wardlow stand-

ing in front of 4035 West Van Buren, looking in their

direction. When respondent saw the officers approach-

ing, he began to run. He was carrying a white opaque

bag under his arm. As Officers Nolan and Harvey

followed in their car, respondent ran south down a

gangway and through an alley, but the officers caught

up with and cornered him. Officer Nolan conducted a

protective “pat-down” search of respondent and the bag

he was carrying.’ When he squeezed the bag, Officer

Nolan felt a hard object similar in shape to a revolver.

Officer Nolan looked inside the bag and found a .38 cali-

ber Colt handgun loaded with live rounds of ammuni-

tion. Respondent was then arrested. Pet. App. 1-2, 15;

J.A. 4-11. |

! Officer Nolan testified at the suppression hearing that he

“conducted a protective pat down for [his] own safety” before

asking respondent any questions. J.A. 6. The officer also testified

that in his experience it is common for weapons to be found in the

vicinity of drug trafficking activities. J.A. 11.

2 Officer Nolan’s arrest report indicates that respondent was

arrested at 12:15 p.m. Pet. App. 2 n.1, 15.

2. Following his indictment on various weapons

charges, respondent filed a motion to suppress the

seized gun. After conducting an evidentiary hearing at

which Officer Nolan testified to the events leading to

respondent’s arrest, the trial court denied the motion.

J.A. 13-15. The court observed that “[aJlmost anybody

can identify a police car marked or * * * unmarked,”

J.A. 14, and it concluded that “once a person flees after

having looked in the direction of the officer there’s

reasonable—there’s reason to think there’s a problem,

they have a right to make inquiry,” J.A. 15.

After a bench trial at which the parties stipulated to

the testimony introduced at the suppression hearing,

respondent was convicted of unlawful use of a weapon

by a felon and sentenced to two years’ imprisonment.

Pet. App. 15; 12/6/95 Tr. 15-20.

3. The Appellate Court of Illinois reversed. Pet.

App. 13-19. The court found Officer Nolan’s testimony

“simply too vague to support the inference that [re-

spondent] was in a location with a high incidence of

narcotics trafficking.” Jd. at 17. The court then held

that respondent’s “sudden flight from an area past

which police officers were driving” was insufficient,

standing alone, to “satisfy the requirements for a lawful

investigatory stop.” /d. at 18.

4. The Supreme Court of Illinois affirmed. Pet. App.

1-12. The court found that “Officer Nolan’s uncontra-

dicted and undisputed testimony, which was accepted

by the trial court, was sufficient to establish that the

incident occurred in a high-crime area.” /d. at 5. It

therefore framed the question presented by the appeal

as “whether an individual’s flight upon the approach of

a police vehicle patrolling a high-crime area is sufficient

to justify an investigative stop of the person.” Ibid.

The court agreed with respondent that “such flight

alone is insufficient to create a reasonable suspicion of

involvement in criminal conduct.” bid.

Relying substantially on the Nebraska Supreme

Court’s decision in State v. Hicks, 488 N.W.2d 359

(1992), cert. denied, 507 U.S. 1000 (1993), the court

concluded that a rule permitting investigative stops

based an flight alone would “upset the balance struck in

Terry (v. Ohio, 392 U.S. 1 (1968),] between the individ-

ual’s right to personal security and the public’s interest

in prevention of crime.” Pet. App. 7 (quoting Hicks, 488

N.W.2d at 364). The court explained:

Flight upon approach of a police officer may

simply reflect the exercise—at top speed—of the

person’s constitutional right to move on. Terry and

[Florida v. Royer, 460 U.S. 491 (1983),] stand for

the proposition that exercise of this constitutional

right may not itself provide the basis for more

intrusive police activity.

* * * *& *

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.

Pet. App. 6-7 (quoting Hicks, 488 N.W.2d at 363-364)

(citation and quotation marks omitted). The court thus

agreed with respondent’s argument that “[i}f the police

cannot constitutionally force otherwise law-abiding

citizens to move, the police cannot force those same

citizens to stand still at the appearance of an officer.”

Id. at 8.

The Illinois Supreme Court further concluded that

the high incidence of narcotics trafficking in the perti-

nent area did not give rise to a reasonable suspicion

that respondent was engaged in wrongdoing. The court

noted that the officers “were not responding to any call

or report of suspicious activity in the area.” Pet. App.

10. It observed as well that respondent “gave no

outward indication of involvement in illicit activity

prior to the approach of Officer Nolan’s vehicle,” but

“was simply standing in front of a building when the

officers drove by.” Jbid. The court concluded that

“because Officer Nolan was not able to point to specific

facts corroborating the inference of guilt gleaned from

[respondent’s] flight, his stop and subsequent arrest of

[respondent] were constitutionally infirm.” Jd. at 12.

The court accordingly affirmed the judgment of the

Illinois Appellate Court reversing respondent’s con-

viction. [bid.

SUMMARY OF ARGUMENT

In Terry v. Ohio, 392 U.S. 1 (1968), and its progeny,

this Court held that the Fourth Amendment permits

brief investigative stops based on “reasonable suspi-

cion” of criminal wrongdoing. To protect the safety of

the officers conducting such a stop, moreover, when law

enforcement officers have a reasonable suspicion that

the individual may be armed and dangerous, they may

conduct a limited search for weapons. The reasonable

suspicion standard does not require an officer to have

probable cause to believe that an individual has

committed a crime. United States v. Sokolow, 490 U.S.

1, 7 (1989). Rather, it requires only “some minimal] level

of objective justification,” JNS v. Delgado, 466 U.S. 210,

217 (1984), for believing that the individual “is, or is

about to be, engaged in criminal activity,” United States

v. Cortez, 449 U.S. 411, 417 (1981).

~ Respondent’s sudden and unprovoked flight from the

caravan of police cars and a uniformed police officer

gave rise to a reasonable suspicion of his possible in-

volvement in criminal activity. Law enforcement

officers have historically treated flight as a suspicious

circumstance warranting further investigation. This

Court has repeatedly held that efforts to evade police

scrutiny are directly relevant to reasonable suspicion

and probable cause determinations. The Court has also

recognized that flight may properly be treated as

probative (though not conclusive) evidence of guilt in a

criminal prosecution.

Flight from an identifiable police officer may be

susceptible of innocent explanations. The purpose of a

Terry stop, however, is not to apprehend persons who

are known to be guilty of criminal offenses; it is to

clarify situations in which unlawful activity is suspected

but probable cause has not been established. Unpro-

voked flight from identifiable police officers is ordinar-

ily a sufficiently valid indicator of illicit conduct to

justify a brief investigative stop. Although such flight

may be undertaken for innocent reasons, it is not

behavior in which innocent persons commonly engage

—and it is far more likely to signal a consciousness of

wrongdoing and a fear of apprehension. An immediate

investigatory seizure is especially appropriate in these

circumstances because the effect of flight is often to

foreclose the possibility of further observation of the

individual that might reveal additional signs of unlawful

behavior.

To treat flight as a basis for an investigative stop

does not unlawfully impair an individual’s right to avoid

contact with the police. If respondent had paid no

attention to the officers, or had continued on his prior

course of conduct or activity, his decision to do that

despite the police presence would not (by itself) have

justified an investigative stop. Instead, respondent

dramatically altered his conduct in response to the

officers’ arrival, in an evident attempt to avoid police

scrutiny. That pattern of activity is much more

aberrational, and much more uncharacteristic of inno-

cent persons, than a simple insistence on freedom from

official interference.

ARGUMENT

RESPONDENT’S UNPROVOKED FLIGHT FROM

POLICE OFFICERS PATROLLING A HIGH-CRIME

AREA GAVE RISE TO A REASONABLE SUSPICION

OF CRIMINAL ACTIVITY AND JUSTIFIED A TEMPO-

RARY INVESTIGATIVE STOP BY THE POLICE

A. The Fourth Amendment Permits Limited

Investigative Stops And Attendant Protective

Searches Based On Reasonable Suspicion Not

Rising To The Level Of Probable Cause

The Fourth Amendment provides that “[tJhe right of

the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures,

shall not be violated.” U.S. Const. Amend. IV. Under

well-established precedent, the formal arrest of an

individual is “reasonable” only if it is based on probable

cause to believe that the person has engaged in

unlawful activity. See, e.g., United States v. Watson,

423 U.S. 411, 417, 421 (1976). The probable cause

standard also applies, as a general matter, in determin-

ing the reasonableness of “searches.” See, e.g., Na-

tional Treasury Employees Union v. Von Raab, 489

U.S. 656, 665 (1989); Griffin v. Wisconsin, 483 U.S. 868,

873 (1987).

Since its decision in Terry v. Ohio, 392 U.S. 1 (1968),

however, this Court has recognized that not every

restriction on personal privacy or liberty sufficient to

constitute a “search” or “seizure” requires the degree of

individualized suspicion necessary to satisfy the

probable cause standard. Rather, the Court’s decisions

establish that “the police can stop and briefly detain a

person for investigative purposes if the officer has a

reasonable suspicion supported by articulable facts that

criminal activity ‘may be afoot,’ even if the officer lacks

probable cause.” United States v. Sokolow, 490 U.S. 1,

7 (1989). As the Court has explained:

The Fourth Amendment does not require a police-

man who lacks the precise level of information

necessary for probable cause to arrest to simply

shrug his shoulders and allow a crime to occur or a

criminal to escape. On the contrary, Terry recog-

nizes that it may be the essence of good police work

to adopt an intermediate response. A brief stop of

a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily

while obtaining more information, may be most

reasonable in light of the facts known to the officer

at the time.

Adams v. Williams, 407 U.S. 148, 145-146 (1972)

(citation omitted).

The Court in Terry also recognized that an officer

should not be required to take unreasonable risks when,

in an investigatory stop, the suspect may be “armed

with a weapon that could unexpectedly and fatally be

used against him.” Terry, 392 U.S. at 23. Rather, “[sJo

long as the officer is entitled to make a forcible stop,

and has reason to believe that the suspect is armed and

dangerous, he may conduct a weapons search limited in

scope to this protective purpose.” Adams, 407 U.S. at

146 (footnote omitted); see also, e.g., Minnesota v.

Dickerson, 508 U.S. 366, 373 (1993) (an officer in

conducting a Terry stop may search “on the basis of

reasonable suspicion less than probable cause,” so long

as the search is “limited to that which is necessary for

the discovery of weapons which might be used to harm

the officer or others nearby”).

The standard applicable to investigative stops and

pat-down searches under Terry—a standard most often

characterized as “reasonable suspicion”—“effects a

needed balance between private and public interests.”

United States v. Montoya de Hernandez, 473 U.S. 531,

541 (1985). Although the reasonable suspicion standard

precludes random or arbitrary seizures, or those based

merely on a subjective “hunch,” the burden of justifica-

tion that it imposes “is considerably less than proof of

wrongdoing by a preponderance of the evidence.”

Sokolow, 490 U.S. at 7. Rather, that standard requires

only “some minimal level of objective justification to .

validate the detention or seizure.” INS v. Delgado, 466

U.S. 210, 217 (1984); see also, e.g., United States v.

Cortez, 449 U.S. 411, 417 (1981) (“An investigatory stop

must be justified by some objective manifestation that

the person stopped is, or is about to be, engaged in

criminal activity.”).”

3 Although investigatory stops are often based on the seizing

officer’s firsthand observation of a suspect’s unusual or idiosyn-

cratic behavior, the reasonable suspicion standard can be satisfied

even without such observations. For example, an informant’s tip

may furnish reasonable suspicion for an investigative stop,

particularly if some details of the tip are verified independently.

See, e.g., Alabama v. White, 496 U.S. 325, 329-332 (1990). Reason-

able suspicion may also exist where an individual closely matches

the description of the perpetrator of a prior crime. See, e.g.,

B. Flight Has Historically Been Treated As Pro-

bative Evidence Of Involvement In Criminal

Activity

Under the foregoing principles, respondent’s un-

provoked flight from the caravan of police cars and a

uniformed police officer furnished a sufficient objective

basis for the officers to form a reasonable suspicion that

he was involved in criminal activity. Law enforcement

officers have historically treated flight as a suspicious

circumstance warranting further investigation. As one

empirical study of police investigative practices con-

cluded, “(cJertainly, officers on patrol assume that flight

is strong evidence of guilt. They almost always attempt

to stop and question a person who flees from them,

even though they suspect no specific crime.” Lawrence

P. Tiffany et al., Detection of Crime 32 n.19 (Frank J.

Remington ed. 1967). Because flight “may seem to

indicate both the existence of a crime and participation

in it by the person who flees,” id. at 19, “[a] person who

* * * changes his direction in an apparent attempt to

avoid confronting [a police] officer, or who flees at the

sight of an officer will commonly be detained and

questioned,” id. at 32.*

United States v. Simpson, 992 F.2d 1224, 1226 (D.C. Cir.)

(investigative stop was justified where the seized individual “was

wearing clothing similar to that described by the victim, was of the

same general age group * * *, was of the same race and physical

build of the alleged rapist, and was in the vicinity of the crime”),

cert. denied, 510 U.S. 906 (1993). An officer’s observation of

“suspicious” behavior is therefore a frequent but not a necessary

predicate for an investigative stop.

4 We are aware of no empirical studies regarding the frequency

with which persons detained on the basis of flight are found to be

involved in criminal activity. Pursuit of fleeing suspects, however,

is difficult and potentially dangerous. Officers would likely not

devote their energies to the pursuit of fleeing persons unless those

That historical practice is eminently reasonable. This

Court has repeatedly held that efforts to avoid police

scrutiny are directly relevant to reasonable suspicion

and probable cause determinations. See, e.g., Sokolow,

490 U.S. at 8-9 (suspect’s “evasive or erratic path

through an airport,” and his apparent use of an alias,

were factors relevant to the reasonable suspicion

inquiry); Florida v. Rodriguez, 469 U.S. 1, 6 (1984)

(“Respondent’s strange movements in his attempt to

evade the officers aroused further justifiable suspi-

cion.”); United States v. Brignoni-Ponce, 422 U.S. 873,

885 (1975) (“erratic driving or obvious attempts to

evade officers can support a reasonable suspicion”);

Sibron v. New York, 392 U.S. 40, 66-67 (1968) (“deliber-

ately furtive actions and flight at the approach of

strangers or law officers are strong indicia of mens rea,

and when coupled with specific knowledge on the part

of the officer relating the suspect to the evidence of

crime, they are proper factors to be considered in the

decision to make an arrest”); Husty v. United States,

282 U.S. 694, 701 (1931) (finding of probable cause for

search of automobile was based on, inter alia, “the

prompt attempt of [the defendant’s] two companions to

escape when hailed by the officers”).°

efforts played a genuine and necessary role in detecting and

preventing crime. The absence of any obvious motive for police

abuses reinforces the appropriateness of deference to the

judgment and experience of trained police officers.

® Cf. California v. Hodari D., 499 U.S. 621, 623 n.1 (1991)

(“That it would be unreasonable to stop, for brief inquiry, young

men who scatter in panic upon the mere sighting of the police is

not self-evident, and arguably contradicts proverbial common

sense.”); Michigan v. Chesternut, 486 U.S. 567, 576 (1988) (Ken-

nedy, J., concurring) (“It is no bold step to conclude, as the Court

does, that the evidence should have been admitted, for respon-

To treat flight as evidence of possible criminal

conduct is consistent not only with this Court’s Fourth

Amendment jurisprudence, but with well-established

principles of substantive criminal law. More than a

century ago, this Court observed that “the law is

entirely well settled that the flight of the accused is

competent evidence against him as having a tendency

to establish his guilt.” Allen v. United States, 164 U.S.

492, 499 (1896). Although flight cannot properly be

treated as “conclusive proof of guilt,” Hickory v. United

States, 160 U.S. 408, 421 (1896), “the flight of the

accused is a circumstance proper to be laid before the

jury, as having a tendency to prove his guilt,” Alberty

v. United States, 162 U.S. 499, 510 (1896).°

dent’s unprovoked flight gave the police ample cause to stop

him.”); United States v. Sharpe, 470 U.S. 675, 705 (1985) (Brennan,

J., dissenting) (“where police officers reasonably suspect that an

individual may be engaged in criminal activity, and the individual

deliberately takes flight when the officers attempt to stop and

question him, the officers generally no longer have mere reason-

able suspicion, but probable cause to arrest”).

® This Court has often looked to common-law principles in

assessing the Fourth Amendment reasonableness of various types

of searches and seizures. See, e.g., Wilson v. Arkansas, 514 U.S.

927, 931 (1995); United States v. Watson, 423 U.S. 411; 418-419

(1976); Gerstein v. Pugh, 420 U.S. 108, 111, 114 (1975); Carroll v.

United States, 267 U.S. 132, 149-153 (1925). At common law, flight

created so strong a presumption of guilt that the flight of one

accused of treason, felony, or petit larceny resulted in the

forfeiture of his goods and chattels, whether he was found guilty or

acquitted. See, e.g., Hickory, 160 U.S. at 418; 4 William Black-

stone, Commentaries 387 (St. George Tucker ed. 1803); 2 John

Henry Wigmore, Evidence § 276, at 122 & n.1 (James H.

Chadbourn ed. 1979 & Supp. 1999). This Court has moderated the

common-law approach, holding that evidence of a defendant’s flight

may not be treated as raising a conclusive presumption of guilt,

while recognizing that such evidence has probative value and may

Watkins v. State, 420 A.2d 270, 273-274 (Md. 1980).

Second, courts have expressed the view that an

individual’s right to avoid contact with police would be

impaired if flight were accepted as a sufficient basis for

an investigative stop. See, e.g., Pet. App. 6-7; State v.

Hicks, 488 N.W.2d 359, 363-365 (Neb. 1992), cert.

denied, 507 U.S. 1000 (1993); State v. Talbot, 792 P.2d

489, 493-494 (Utah Ct. App. 1990); People v. Shabaz,

378 N.W.2d 451, 460-461 (Mich. 1985). Neither of those

rationales withstands scrutiny.

properly be submitted to the jury. See Allen, 164 U.S. at 498-499;

Alperty, 162 U.S. at 508-511; Hickory, 160 U.S. at 416-423. The

courts of appeals have continued to recognize that evidence of

flight may properly be admitted in a criminal trial to show con-

sciousness of guilt. See, e.g., United States v. Candelaria-Silva,

162 F.3d 698, 705 (ist Cir. 1998); United States v. Amuso, 21 F.3d

1251, 1258-1259 (2d Cir.), cert. denied, 513 U.S. 932 (1994); United

States v. Murphy, 996 F.2d 94, 96-97 (5th Cir.), cert. denied, 510

U.S. 971 (1993); United States v. Hegwood, 977 F.2d 492, 498 n.3

(9th Cir. 1992), cert. denied, 508 U.S. 913 (1993); United States v.

Pungitore, 910 F.2d 1084, 1151 (3d Cir. 1990), cert. denied, 500 US.

915 (1991). Accord, e.g., 2 Wigmore, supra § 276, at 122 (“It is

universally conceded today that the fact of an accused’s flight

* * * {is} admissible as evidence of consciousness of guilt, and

thus of guilt itself.”); 1 Christopher B. Mueller & Laird C.

Kirkpatrick, Federal Evidence § 85 (2d ed. 1994); 2 John W. Strong

et al., McCormick on Evidence § 263 (4th ed. 1992).

1. Sudden flight from an identifiable police officer

may be susceptible of innocent explanations. Investiga-

tive detentions are routinely based, however, on con-

duct that is neither inherently blameworthy nor

definitely indicative of criminal behavior. As the Court

explained in Sokolow,

“Innocent behavior will frequently provide the

basis for a showing of probable cause,” and * * *

“(ijn making a determination of probable cause the

relevant inquiry is not whether particular conduct

is ‘innocent’ or ‘guilty,’ but the degree of suspicion

that attaches to particular types of noncriminal

acts.” That principle applies equally well to the

reasonable suspicion inquiry.

490 U.S. at 10 (quoting /llinois v. Gates, 462 U.S. 213,

243-244 n.13 (1983)).

Indeed, the point of this Court’s Terry stop juris-

prudence is to enable police officers “to adopt an inter-

mediate response” when they possess a degree of

individualized suspicion not rising to the level of

probable cause. Adams, 407 U.S. at 145. Situations in

which probable cause is lacking are by definition

situations in which the suspect’s behavior is susceptible

of an innocent explanation.’ Thus, “(djoubtless, many

innocent explanations for [respondent’s] conduct could

be hypothesized, but suspicious activity by its very

’ Even the probable cause standard applicable to an arrest or

full-scale search requires only a “fair probability” that the suspect

has committed criminal acts or that the specified items will be

found in the location to be searched. Sokolow, 490 U.S. at 7; Gates,

462 U.S. at 238. “[Tyhe level of suspicion required for a Terry stop

is obviously less demanding than that for probable cause” and

requires “considerably less than proof of wrongdoing by a pre-

ponderance of the evidence.” Sokolow, 490 US. at 7.

nature is ambiguous. Indeed, the principal function of

the investigative stop is to quickly resolve the ambigu-

ity and establish whether the suspect’s activity is legal

or illegal.” State v. Jackson, 434 N.W.2d 386, 391 (Wis.

1989).

The propriety of the investigative stop in this case

therefore does not depend on a showing that respon-

dent’s flight unequivocally evidenced his involvement in

criminal activity. Rather, the stop was appropriate so

long as respondent’s behavior provided the “minimal

level of objective justification” necessary to satisfy the

reasonable suspicion standard. Sokolow, 490 U.S. at 7

(quoting INS v. Delgado, 466 U.S. 210, 217 (1984)).

Unprovoked flight from identifiable police officers is

ordinarily a sufficiently probative indication of illicit

conduct to justify a brief investigative stop. Although

5 To the extent that innocent people flee from the police,

seizures undertaken on the basis of flight will sometimes result in

incursions on the liberty of persons who have committed no crime.

That prospect, however, does not make such stops unconstitu-

tional. As the Court has explained in the context of searches, the

Fourth Amendment’s reasonableness requirement

does not demand that the government be factually correct in

its assessment [of] what a search will produce.* * * Ifa

magistrate, based upon seemingly reliable but factually

inaccurate information, issues a warrant for the search of a

house in which the sought-after felon is not present, has never

been present, and was never likely to have been present, the

owner of that house suffers one of the inconveniences we all

expose ourselves to as the cost of living in a safe society; he

does not suffer a violation of the Fourth Amendment.

Illinois v. Rodriguez, 497 U.S. 177, 184 (1990). The same principle

applies to Terry stops—except that the reasonable suspicion

standard contemplates a greater willingness to tolerate the seizure

of persons who turn out to be innocent, in light of the lesser

intrusion that such stops entail.

such flight may be undertaken for innocent reasons, it

is not behavior in which innocent persons commonly

engage. Compare Reid v. Georgia, 448 U.S. 438, 441

(1980) (circumstances that “describe a very large

category of presumably innocent travelers” could not

provide the basis for an investigative stop). As the

Wisconsin Supreme Court has explained,

[flight at the sight of police is undeniably suspi-

cious behavior. Although many innocent explana-

tions could be hypothesized as the reason for the

flight, a reasonable police officer who is charged

with enforcing the law as well as maintaining peace

and order cannot ignore the inference that criminal

activity may well be afoot. Although it does not rise

to a level of probable cause, flight at the sight of a

police officer certainly gives rise to a reasonable

suspicion that all is not well.

State v. Anderson, 454 N.W.2d 763, 766 (1990); see also

4 Wayne R. LaFave, Search and Seizure § 9.4(f), at 181-

182 (8d ed. 1996) (agreeing that “behavior which

—evinees in the mind of a reasonable police officer an

intent to flee from the police is sufficieatly suspicious in

and of itself to justify a temporary investigative stop by

the police”).

The Illinois Supreme Court appeared to agree that

an individual's flight from the police is relevant to the

reasonable suspicion inquiry. It concluded, however,

that an investigative detention is permissible only “if

there are corroborating circumstances sufficient to

create the reasonable suspicion necessary for the stop.”

Pet. App. 8. As we explain above, unprovoked flight is

sufficiently unusual, and sufficiently uncharacteristic of

innocent persons, to satisfy the reasonable suspicion

standard. There is, however, an additional flaw in the

court’s suggestion that officers observing a individual’s

flight should seek evidence “corroborating” the infer-

ence of possible criminal involvement. In many if not

most cases, the effect of flight is to foreclose the

possibility that close observation of the individual will

reveal additional signs of unlawful behavior. An

immediate seizure is particularly appropriate in cases,

like the present one, in which officers have no practical!

alternative means of further investigating the suspi-

cious individual. Cf. Adams, 407 U.S. at 146 (“A brief

stop of a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily

while obtaining more information, may be most

reasonable in jight of the facts known to the officer at

the time.”) (emphasis added).

This Court has emphasized that in determining

whether an investigative stop was supported by rea-

sonable suspicion, “the totality of the cireumstances—

the whole picture—must be taken into account.”

Cortez, 449 U.S. at 417. Cases may occasionally arise in

which other contextual factors refute the inference of

criminal activity that would otherwise attend an

individual’s flight from identifiable police officers.’ In

this case, however, the only additional circumstance

bearing on the reasonable suspicion inquiry was the fact

that the episode occurred in a high-crime area. An

individual’s presence in a high-crime neighborhood is

not in itself sufficient to justify an investigative stop.

® For example, an officer who moved towards an individual

while shouting threats of violence or instructing people to clear an

area could not plausibly construe that person’s flight as evidence of

involvement in illicit conduct. No such circumstances, however,

are present in this case; the flight, instead, was entirely

unprovoked.

See Brown v. Texas, 443 U.S. 47, 52 (1979). Nor is

presence in a high-crime area necessary to justify an

officer’s conclusion that sudden and unprovoked flight

from an identifiable police officer gives rise to reason-

able suspicion. But presence in such an area may

contribute to a finding of reasonable suspicion when

combined with other relevant circumstances, such as

the flight in this case.””

2. In Florida v. Royer, 460 U.S. 491 (1983), a

plurality of this Court stated that an individual who is

approached by the police

need not answer any question put to him; indeed,

he may decline to listen to the questions at all and

may go on his way. He may not be detained even

momentarily without reasonable, objective grounds

for doing so; and his refusal to listen or answer does

not, without more, furnish those grounds.

Id. at 498 (opinion of White, J.) (citation omitted). Some

courts—including the Illinois Supreme Court in this

case—have concluded that a Terry stop based on an

individual’s flight from the police impairs the individ-

10 See, e.g., United States v. Brown, 159 F.3d 147, 149-150 (3d

Cir. 1998), cert. denied, 119 S. Ct. 1127 (1999); United States v.

Gutierrez-Daniez, 131 F.3d 9389, 942-943 (10th Cir. 1997), cert.

denied, 118 S. Ct. 1334 (1998); United States v. Atlas, 94 F.3d 447,

450-451 (8th Cir. 1996), cert. denied, 520 U.S. 1130 (1997); United

States v. Evans, 994 F.2d 317, 322 (7th Cir.), cert. denied, 510 U.S.

927 (1993); United States v. Lender, 985 F.2d 151, 154 (4th Cir.

1993); United States v. Lucas, 778 F.2d 885, 888 (D.C. Cir. 1985)

(per curiam). See also 2 LaFave, supra §3.6(g), at 335 (“To require

police to disregard facts which, as a practical matter, are highly

relevant to the determination of probable cause, would do violence

to the underlying purpose of the Fourth Amendment’s probable

cause requirement and would in fact do a disservice to the ‘honest

citizen’ residing in a high-crime area.”) (footnote omitted).

ual’s right to “go on his way” and is therefore incon-

sistent with Royer. See Pet. App. 6-7 (quoting Hicks,

488 N.W.2d at 363-364); Talbot, 792 P.2d at 494; Shabaz,

378 N.W.2d at 458, 460-461. That reasoning is errone-

ous.

The general constitutional bar on suspicionless sei-

zures of the person reflects the fact that an individual

has a liberty interest in pursuing his chosen course of

conduct free from official interference. In the Terry

stop context, that interest may be overridden if, but

only if, government officials have an objective basis for

suspecting that the individual may be involved in

criminal or similar wrongful behavior. The bar on

suspicionless seizures would be effectively negated if

the police could request that an individual stop

voluntarily, and then treat his refusal to do so as the

basis for a compulsory stop. Thus, the Court has

“consistently held that a refusal to cooperate, without

more, does not furnish the minimal level of objective

justification needed for a detention or seizure.” Florida

v. Bostick, 501 U.S. 429, 437 (1991). The Royer plural-

ity’s recognition of the individual’s right to “go on his

way,” 460 U.S. at 498, and its assertion that the exer-

cise of that right cannot provide the basis for a stop,

ibid., are best understood to refer to situations in which

a person simply refuses to cease or modify his behavior

in response to police entreaties.

Respondent, by contrast, did not insist on hewing to

his predetermined course of conduct. To the contrary,

respondent dramatically altered his behavior in direct

response to the officers’ arrival, and in an evident at-

tempt to avoid police scrutiny. That pattern of activity

is much more aberrational, and much more uncharac-

teristic of innocent persons, than is a simple insistence

on freedom from official interference. To treat such

behavior as grounds for an investigative stop would not

permit suspicionless seizures. Had respondent simply

ignored the officers, his refusal to alter his behavior in

response to their arrival would not have furnished a

basis for an investigative stop. Recognition of that

principle adequately protects the individual’s right to

be free from arbitrary government intrusion. It is both

unnecessary and counterproductive to take the further

step of barring police from drawing the inferences that

naturally flow from sudden and dramatic shifts in

private conduct.”

It is true that no state or federal law prohibited

respondent from taking flight when Officer Nolan ap-

peared. In that sense it is accurate to say that respon-

dent had a “right” to flee and could not be punished for

that behavior. As we explain above, however (see pp.

14-15, supra), Terry stops are routinely undertaken on

the basis of conduct that is not inherently unlawful.” In

Terry itself, the two suspects simply strolled down a

1! We do not suggest that police can “force otherwise law-

abiding citizens * * * to stand still,” Pet. App. 8, or that running

in the opposite direction from identifiable law enforcement officers

can under all cireumstances be regarded as suspicious behavior. A

marathoner engaged in a training run could rush past police

officers without arousing reasonable suspicion. And that would be

so even if the runner ignored a shouted police request for a

voluntary interview. Under those circumstances, it would be

accurate to say that the individual had “exercise[d] his constitu-

tional right to ‘go on his way’—at top speed.” Shabaz, 378 N.W.2d

at 460. The suspicious aspect of respondent’s behavior was not

running per se. It was the fact that respondent deviated dramati-

cally from his prior course of conduct in response to the officers’

arrival, and for the apparent purpose of avoiding police scrutiny.

2 Indeed, a Terry stop will sometimes be appropriate even

where police have not observed the suspect engaging in any form

of suspicious or unusual conduct. See notes 3, 8, supra.

street and peered into a street window, met with and

conversed with a third person, and continued on their

way—but in a manner that gave rise to the suspicion

that they were casing the store for a possible robbery.

392 U.S. at 5-6. The fact that respondent could not be

punished for the flight itself did not preclude the police

from treating the flight as evidence of possible involve-

ment in criminal activity. Cf. Wisconsin v. Mitchell, 508

U.S. 476, 489 (1993) (“The First Amendment * * *

does not prohibit the evidentiary use of speech to

establish the elements of a crime or to prove motive or

intent.”).”

—

‘8 For essentially the same reasons that the investigative stop

in this case was permissible, Officer Nolan was justified in con-

ducting a protective pat-down of respondent’s person. Respon-

dent’s flight suggested both that he might be involved in illicit

activity, and that he might be willing to take extreme measures to

avoid police questioning. Officer Nolan testified that the area in

which the stop occurred was known for “high narcotics traffic,” and

that in his experience weapons are commonly found in the vicinity

of such areas. J.A. 8, 11. Based on those factors, Officer Nolan

“had reasonable grounds to believe that [respondent] was armed

and dangerous.” Terry, 392 U.S. at 30. It was also reasonable for

Officer Nolan to feel the opaque bag that respondent carried. A

weapon could as easily be concealed in the bag—and as quickly

retrieved—as if it were hidden under respondent’s clothing.

Compare Michigan v. Long, 463 U.S. 1032, 1045-1052 (1983) (police

conducting a vehicle stop reasonably searched areas of the car,

including a leather pouch, over which the suspect would have

immediate control, and that might contain a weapon). Thus, while

the right to conduct an investigative stop does not invariably

include the right to perform a weapons frisk, id. at 1049 n.14, the

pat-down of respondent and his bag was reasonable under the

circumstances of this case.

_—

CONCLUSION

The judgment of the Supreme Court of Illinois should

be reversed.

Respectfully submitted.