# Amicus Curiae Brief — Illinois v. Wardlow

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0250%3A09

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 528 U.S. 119

## Text

B

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
\6

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)

IV

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

Vi

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)

2

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

4

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.

5

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

6

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

7

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).

8

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

9

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.,

10

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

~~

11

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-

12

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).

ae

14

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.

15

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.

16

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

17

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.

18

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).

19

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

20

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.

21

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.

_—

22

CONCLUSION

The judgment of the Supreme Court of Illinois should
be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General

JAMES K. ROBINSON
Assistant Attorney General

MICHAEL R. DREEBEN
Deputy Solicitor General

MALCOLM L. STEWART
Assistant to the Solicitor
General

DEBORAH WATSON
Attorney

JUNE 1999

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0250%3A09. Public record. Not legal advice.