Amicus Curiae Brief — Illinois v. Wardlow

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Supreme Court, U.S,

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(3) JUN 29. 1999

No. 98-1036 E CLERK ”

— —

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

THE STATE OF ILLINOIS,

Petitioner,

VS.

SAM WARDLOW,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF OF

WAYNE COUNTY PROSECUTING ATTORNEY

AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

JOHN D. O’HAIR

Wayne County Prosecuting Attorney

TIMOTHY A. BAUGHMAN

Chief of Research, Training and Appeals

JEFFREY CAMINSKY

Assistant Prosecuting Attorney

1204 Frank Murphy Hall of Justice

Detroit, MI 48226

(313) 224-5846

STATEMENT OF QUESTION

I.

DOES A PERSON’S SUDDEN, UNEXPLAINED,

AND UNPROVOKED FLIGHT FROM A

CLEARLY IDENTIFIABLE POLICE OFFICER

PROVIDE REASONABLE GROUNDS TO

BELIEVE THAT CRIMINAL MISCHIEF IS

AFOOT?

~— - --ill--

TABLE OF CONTENTS

PAGE

STATEMENT OF QUESTION .................. -i-

re vend bouts ck sweet ives) - lil-

INDEX OF AUTHORITIES ..................5. -iv-

SUMMARY OF ARGUMENT ................ -xVill-

STATEMENT OF THE CASE ................ -xViii-

INTEREST OF THE AMICUS ................. -xViii-

ARGUMENT

1.

A PERSON’S SUDDEN, UNEXPLAINED, AND

UNPROVOKED FLIGHT FROM A CLEARLY

IDENTIFIABLE POLICE OFFICER PROVIDES

CRIMINAL MISCHIEF IS AFOOT

8 Sex he) EN -1-

| A

HISTORY AND ETYMOLOGY ................ -2-

1. Digression and Resolution................. -2-

2. History, Language, and the Constitution _._... -12-

B. :

I -16-

RE bch cna ca ch chnGees dines es -17-

--jV-- o<Voo

2. “Truth, Justice, and the American Way.” ..... -21- INDEX OF AUTHORITIES

Cc CASE PAGE

FLIGHT, SUSPICION, AND REASON .......... -22- | Agnello v United States,

269 US 20; 46 S Ct 4; 70 L Ed 145; 51 ALR 409 (1925)

Ma EE Se ee ee a ee eee ee ates -4-

| x pers re rr t: . < -28- | Boyd v United States,

116 US 616; 6 S Ct 524; 29 L Ed 746 (1886) .... -3-

EE oo. gn cnkbss bebudaveesseee ane -30-

Brown v Texas,

SIU J6 dete cececcbeudaueds Oe -10-

Byars v United States,

273 US 28; 47 S Ct 248; 71 L Ed 520(1927) .... -4-

Camara v Municipal Court,

i 206 ckbedbededetecesosees -8-

Chicago v Morales,

177 Ill 2d 440; 687 NE2d 53 (1997) aff'd oth grds __

US ____ (No. 97-1121, decided June 10, 1999) .. -18-

Draper v United States,

SED Goiwh.ckesbbceectewecebs -5-

, Dunaway v New York,

I 6 00050004 oe eS -ll-

Florida v Royer,

DPD csv dicdckd vies ce week oui -9-

Florida v Royer,

460 US 491; 103 S Ct 1319; 75 L Ed 2d 229 (1983)

lidduchbendebid¢issigns eee -10-

o<V}--

INDEX OF AUTHORITIES INDEX OF AUTHORITIES

CASE PAGE | CASE PAGE

Frank v Maryland, Michigan v Tyler,

359 US 360; 79 S Ct 804; 3 L Ed 2d 877 (1959) .. -3- IUD Bie US clue hte bbw bs Ow -4-

Gambino v United States, National Safe Deposit Co v Stead,

275 US 310; 48 S Ct 137; 72 L Ed 293 (1927) EE on thn d dbeubevavadwieals -26-

i. Le ees ek ens aaaddde MAGE eneh bene -4-

People v Arterberry,

Gerstein v Pugh, 431 Mich 381; 429 NW2d 574 (1988) ......... -23-

420 US 103; 95 S Ct 854; 43 L Ed 2d 54 (1975)

eG tehuwed beceé e004 bi oxe adeareteasew -5- | People v Holmes,

81 NY2d 1056; 619 NE2d 396 (1993). ......... -24-

Henry v United States, :

361 US 98; 80 S Ct 168; 4 L Ed 2d 134 (1959) People v Mitchell,

sn 26 shaw al das dn duunoue ous tees tie ee -6- 138 Mich App 163; 360 NW2d 156 (1984) -53-

Holland v Heavlin, People v Moore,

299 Mich 465; 300 NW 777 (1941) ........... -35- 432 Mich 311; 439 NW2d 684 (1989)

Fubebbdesetdydvdcwuses ou Coe Was leh aeits -29-

Kurtz v Moffitt,

RR eee eee -5- | People v Shabaz, |

424 Mich 42; 378 NW2d 451 (1984) cert dis as moot on

Mapp v Ohio, resp 's death 478 US 1017 (1985) ............ -19-

367 US 643; 81 S Ct 1684; 6 L Ed 2d 1081 (1961) |

sink UpdicbaiRankatcdedsdeurreareeet -4- | People v Souza,

9 Cal 4* 224; 36 Cal Rptr 2d 369; 885 P2d 982 (1994)

Marcus v Property Search Warrant, lteter cece ee eee teen eeeeteeees -19-

367 US 717; 81 S Ct 1708; 6 L Ed 2d 1127 (1961)

aa adad kbnshue b2us Lane cases -3- | People v Talbot,

792 P2d 489 (Utah App, 1990) .............. -24-

Michigan v Chesternut,

I fs ee ee a ae -l-

--Vii--

--Vill--

INDEX OF AUTHORITIES

CASE

People v Wardlow,

183 Ill 2d 306; 233 Ill Dec 634; 701 NE2d 484, 486

EN 6 iN vices eta bbendeedsaamkekeseur -19-

Platt v State,

589 NE2d 222 (Ind, 1992).......... -1,11,24,25,28-

Samuel v Payne,

1 Doug! 359; 99 Eng Rep 230 (KB, 1780)....... -5-

Scott v United States,

ED «onde vcunda'ds vanetus eens -23-

Semayne's Case,

5 Co Rep 91a; 77 Eng Rep 194 (KB, 1603) ...... -5-

Sibron v New York,

EE sc buen de seed cnbeusncane -24-

Snyder v Massachusetts,

SEE pc buded ds cabeede vets -10-

tg

Stanford v Texas,

379 US 476; 85 S Ct 506; 13 L Ed 2d 431 (1965) . -3-

State v Anderson,

155 Wis 2d 77; 454 NW2d 763, (1990)

-1,11,24,25,26,27,28-

State v Anderson,

155 Wis 2d 771 454 NW2d 763 (1990)

_*e ee © © © *

--]X--

INDEX OF AUTHORITIES

CASE PAGE

State v Hicks,

241 Neb 357; 488 NW2d 359, 364 (1992)

eo TIN RS Seay eaay Tampa mye Ie -19,24-

State v Williamson,

10 Conn App 532; 524 A2d 655, 659-660 (Conn App,

he i i os ctadh d cueee es -25-

Stone v Powell,

IED so 0.6 06 caltince ceeded ~12-

Tennessee v Garner,

Re. sos a 6p ebitikius 6 Oak eal -12-

Terry v Ohio,

EEE os ss 6 cas 0 CaSwUbe Vee ~passim-

Twining v New Jersey,

I lic oe oo tk nee -10-

United States v Cortez,

EEE |. co's o c'v oped sau was ooxk -9-

United States v Cardona-Rivera,

904 F2d 1149 JCA 7, 1990)................. -25-

United States v Haye,

, -25-

o<Xo-

INDEX OF AUTHORITIES

CASE PAGE

United States v Jackson,

Pe ete Uy BOD oon kc ccs cwucensccs -25-

United States v Lane,

oe ce SE ee ere eee -25-

United States v Mendenhall,

IED 6c cc cv svaadpaetuetts -10,11-

United States v Pope,

SER MEW... wc ccea-vesaek sues -25-

United States v Rundel,

a ee -25-

United States v Sokolow,

Ec re vudckhu k6dcndenee ene’ -9,30-

United States v Vasquez,

534 F2d 1142 (CA 5, 1976)................. -25-

United States v Watson,

EE «od ncaducedaas wee awa -5-

Weeks v United States,

232 US 383; 34 S Ct 341; 58 L Ed 652 (1914)

MaRS a ok aa cota ea eee is cee ck 4.

Wolf v Colorado,

338 US 25; 69 S Ct 1359; 93 L Ed 1782 (1949)

Frésvedws boowyccawaneeesetsenlsdes 4,10,12,16-

aX joo

INDEX OF AUTHORITIES _—

OTHER AUTHORITIES

4 Blackstone, COMMENTARIES,

ete kel Sede Geer Uee Yue GE Cree | -5-

A. Smith, THE WEALTH OF NATIONS,

ED GA Ch euknedekest0s vaees oebiekss es -14-

Brest, The Misconceived Quest for the Original

Understanding,

ee -12-

Coke, THIRD INSTITUTE; H. Broom, LEGAL MAXIMS,

Cleese, Idle, et al, M. PYTHON AND THE HOLY GRAIL

aN RL ate a -23-

Durant, ROUSSEAU & REVOLUTION

C555 PARAL G SER -14-

Edward Gibbon, THE DECLINE AND FALL OF THE

ROMAN EMPIRE (1776) ..................

Fallon, A Constructivist Coherence Theory of Constitutional

Interpretation

100 HARV L REV 1189 (1987) ............. -12-

Gay, AGE OF ENLIGHTENMENT, i

Ge eo re -15-

~-xil-- --xiii--

INDEX OF AUTHORITIES INDEX OF AUTHORITIES

OTHER AUTHORITIES OTHER AUTHORITIES

SATIRES,

H. G. wells, THE OUTLINE OF HISTORY, NG 44-h.c EDeke Akaa deta ta 5 eae eb a Fa -23-

CY ale vows ins bith oe ahh ma ees ed

Shakespeare, HENRY IV,

Hobbes, LEVIATHAN, SRR EGE Bala eGR CRE aera eS i Reale a ae ee ee -23-

Ss oo ook oka opuadew coeuebh -8-

Steiker, Second Thoughts About First Principles,

HOGAN’S HEROES, 107 Harv L Rev 820 (1994)................. -12-

IED. in vo wc doh sds 5 a 634-0 -20-

THE FEDERALIST,

Hume, DIALOGUES CONCERNING NATURAL a a a -15-

CONE bs bic eutidec Gdeawuweuules -14-

THE FEDERALIST,

POS Ee GLb ik o 6 be os wok 6 wh bee wda -3- EE Cae recs 6 cua e's sls dha oe ken -13-

LaFave, THE FEDERALIST,

4 SEARCH AND SEIZURE (3D ED), (1996)... -24- RR re aR hk eS es -14-

‘Middlekaug, THE GLORIOUS CAUSE: THE AMERICAN

REVOLUTION,

RAPED 5.2.2... 6.6 5.8).: wiidio ey 2

© ARR RECS SALI Pes aes Oe eee 27-

Trevelyn, THE AMERICAN REVOLUTION,

Montesquieu, THE SPIRIT OF THE LAWS, ee -2-

Se Se Re eee -14-

| Tudor, LIFE OF JAMES OTIS,

Poe, THE TELL-TALE HEART, (1845) ......... -16- ee ere ieee ge er kl -10-

a) oo ee Ov ee Dene Ds BEB Gs FIN oo ces cesnccnscccevceszence -28-

Roussear, THE SOCIAL CONTRACT, We Cte, BURT, BB nw... ccc ccc cc ccccvcccces -29

A EE ab ox beck we 4 éreeeceeduucbe -8-

--X1V--

INDEX OF AUTHORITIES

OTHER AUTHORITIES

Wise, Criminal Law & Procedure:

1974 Annual Survey of Michigan Law, 21 WAYNE L

REV 401, 424 (1975) ....0..0000 eee rere Zt-

--XV--

INTEREST OF THE AMICUS

Amicus is the Prosecuting Attorney for Wayne County,

Michigan. Wayne County is the largest County in the State

of Michigan, and the criminal division of Wayne County

Circuit Court is among the largest and busiest in the entire

United States. Charged by state statutes and the State

Constitution with responsibility for litigating all criminal

prosecutions within his jurisdiction, the outcome of the

current litigation is a matter of primary interest to Amicus, as

its outcome will directly affect the execution of his

constitutional and statutory duties. _

As the legal representative of a unit of state government,

Supreme Court Rule 37 permits Amicus to file a supporting

brief without permission of the parties. However, Amicus has

obtained Petitioner’s permission to file a supporting brief on

its behalf.

STATEMENT OF THE CASE

Amicus relies upon the parties to provide this Court with

the particulars of the instant case.

SUMMARY OF ARGUMENT

Under any common understanding of the Fourth

Amendment concept of “reasonable search and seizure”,

unprovoked flight from the presence of police invites their

pursuit and justifies the temporary detention of the one

fleeing, for purposes of discovering the reason for such

behavior: A police officer would be foolishly naive to ignore

such an event, and it provides an objective basis for a

reasonable officer to suspect criminal wrongdoing.

--XVI--

-]-

ARGUMENT

I.

A PERSON’S SUDDEN, UNEXPLAINED, AND

UNPROVOKED FLIGHT FROM A CLEARLY

IDENTIFIABLE POLICE OFFICER PROVIDES

REASONABLE GROUNDS TO BELIEVE THAT

CRIMINAL MISCHIEF IS AFOOT.

"The wicked flee when no man pursueth...."

PROVERBS, 28:1

This case squarely presents a recurring question the Court

left open in Michigan v Chesternut, 486 US 567 (1988) and

California v Hodari D, 499 US 621 (1991) — namely,

whether a citizen who bolts from the presence of a uniformed

police officer gives the officer any reason to suspect that foul

play is afoot, and any reason to detain the citizen to see

whether the suspicions have a basis in fact.'

' The lower court holding suggests a conceptual problem underlying

cases such as this one: the Illinois Supreme Court appears to assume that

police must have evidence of “some independently suspicious

circumstance” to corroborate any “inference of a guilty conscience

associated with flight at the sight of the police.” People vy Wardiow, 183

Ill 2d 306; 233 Ill Dec 634; 701 NE2d 484, 486 (1998). However, Terry

is not so restrictive: in fact, the Court took care to note that it based the

holding on the “Fourth Amendment's general proscription against

unreasonable searches and seizures,” Terry v Ohio, 392 US 1, 20 (1968),

and found that the critical point was not proof of any specified criminal

acts, but rather an objectively reasonable cause for concern. Terry, at

20-24. And other jurisdictions note that the gravamen of “reasonable

suspicion” is not proof positive, but “ambiguity”—specifically, some

objectively reasonable basis for drawing an inference of wrongful

conduct. See, eg, State vy Anderson, 155 Wis 2d 77, 84; 454 NW2d 763,

765 (1990); Piatt v State, 589 NE2d 222, 226 (ind, 1992).

Amicus also notes that requiring corroboration of suspicious

circumstances — while necessary to establish proof beyond a reasonable

doubt at trial or probable cause for arrest — appears inconsistent with

the very notion of “suspicious circumstances” in the first place. By their

very nature, “suspicious circumstances” giving rise to “reasonable

suspicion” will be ambiguous: if no ambiguity existed, we would have

De

Given the holding below, this Court must intervene to

broaden a curiously narrow construction of the word

“reasonable” in the context of the Fourth Amendment, and

return courts to the common understanding of the word. In

doing so, the Court will decide whether our Constitution

permits police to use common sense in situations when an

officer sees someone bolt from his presence — ie, whether

the only constitutionally reasonable course is for the officer

to shrug his shoulders and continue about his business; or

whether the Constitution permits him to discover what the

problem may be, and why someone would flee from what

would otherwise be a non-threatening, reassuring presence.

Thus, the controlling question in this case is whether a

policeman's act of detaining a citizen who flees from his

presence, for purposes of investigating the cause of his action,

constitutes an unreasonable response to the citizen’s flight

under the Fourth Amendment.

A.

HISTORY AND ETYMOLOGY

1.

Digression and Resolution

In 1791, newly independent and with a vivid memory of

the oppressions of the Crown that fueled their Revolution,’

os

either unambiguously mnocent conduct, or probable cause to arrest. And

the whole pomt of investigating in the first place is so that the police can

garner the corroboration needed to resolve the ambiguity, ane way or the

other.

? Actually, the historical record suggests that the Revolution stemmed

as much from the colonists’ reluctance to pay the costs of protecting

themselves from the French and the Indians as from any real tyranny by

the Crown. Sec, Middieckauf, THE GLORIOUS CAUSE: THE AMERICAN

REVOLUTION, 1763-1789 (1982), pp 49-93, for a good summary of how

British clumsiness and ‘(aakee parsimony c~ntributed to popular support

for the ensuing revolt. See also, Trevelyan, THE AMERICAN

REVOLUTION (MORRIS ED) (1964), pp 1-56.

Search Warrant, 367 US 717, 724-729

Maryland, 359 US 360, 363-366 (1959). pe Texas,

379 US 476, 481-486 (1965), remarking in Boyd that

power, [they] cannot abide the pure atmosphere of political

" Boyd, supra at 631-632.

4.

governmental intrusions, finding that it gives citizens the

right to “shut the door” on government officials who demand

entry into their homes and property without proper

authorization. Frank v Maryland, supra at 365.

A common thread links our early cases with the abuses of

the colonial writs of assistance — the fear that unrestricted

governmental power to force entry into private dwellings will

lead to tyranny, by stifling the voices of nonconformity.

Such fears led this Court to hold the "security of one's privacy

against arbitrary intrusion by the police” to be a fundamental

right guaranteed by the Fourteenth Amendment, Wolf v

Colorado, 338 US 25, 27 (1949); Mapp v Ohio, 367 US 643,

650 (1961), and to the general rule that official entry onto

Tyler, 436 US 499 (1978). In fact, the early history of the

Fourth Amendment suggests that its main concern was the

forced entry and search of a dwelling. Earlier abuses had

fired opposition to the colonial writs of assistance, and early

decisions banning the use of unlawfully seized evidence show

the Court's sensitivity to invasions of private

homes: In Weeks v United States, 232 US 383 (1914), the

Court would ban from use in federal courts evidence

unlawfully seized during a warrantless, and hence unlawful,

entry into the citizen's home. And in Agnello v United States,

269 US 20, 33 (1925), the Court rejected the notion that the

unquestioned existence of probable cause alone provided

blanket justification for a warrantless entry into a home,

holding that the mere belief, "however well founded, that an

article sought is concealed in a dwelling house, furnishes no

justification for a search of that place without a warrant." See

also, Gambino v United States, 275 US 310 (1927); Byars v

United States, 273 US 28 (1927). See generally, LaFave &

Israel, CRIMINAL PROCEDURE, (1984), Ch 3, pp 132 ff.

Thus, the early cases suggest a preoccupation with official

entries into private property, stemming from Coke's maxim

that “every man's house is his castle.” Coke, THIRD

INSTITUTE; H. Broom, LEGAL MAXIMS, 321-329. C7,

-5.

Semayne's Case, 5 Co Rep 91a; 77 Eng Rep 194 (KB, 1603).

And while extending the concept of “reasonable seizure" to

persons outside a dwelling is well within the language of the

Fourth Amendment, the Court came to recognize that the

differences in circumstance mandated a difference in

approach: The Constitution did not, after all, proscribe

attempts at maintaining public order, and one venturing into

public assumes a continuing duty to behave in accordance

with the dictates of civilization. Moreover, while history

property carries with it the seeds of tyranny, the infinite

variety of human conduct requires that the State have the

flexibility needed to maintain the public peace and enforce

some minimal standards of civility. Therefore, where one's

conduct gives the police reasonable grounds to believe he has

committed a crime, the common law, recognizing the

compelling public interest in law enforcement, justified

intruding upon his liberty interests in order to effect an

arrest, 4 Blackstone, COMMENTARIES, 292; Samuel v Payne,

1 Doug! 359; 99 Eng Rep 230 (KB, 1780); Kurtz v Moffitt

115 US 487 (1885); and the Constitution, building upon this

heritage, concurred. United States v Watson, 423 US 41}

(1976). Accordingly, where the police have reasonable

grounds to believe that a specific person has committed a

crime, they may arrest him without a warrant. United States

v Watson, supra. Cf, Draper v United States, 358 US 307

(1958)(Holding “probable cause" synonymous with

“reasonable grounds).

Still, the power to arrest extends the powers of the poli

no further than that of a magistrate to order the arrest in the

first place. Gerstein v Pugh, 420 US 103 (1975). And for

years, courts construed any significant intrusion on one's right

“Actually, the common law also placed substantial burdens

ctizey, wo help the authorities apprehend lavbreakers See.

"ene and COMMENTARIES, 293, for an explanation of the role of the

cry.”

_—s

hn

of free passage to be an arrest — judging the legality of that

intrusion by determining whether probable cause existed at

the moment of the stop, rather than by any facts discovered

later. Henry v United States, 361 US 98; 80 S Ct 168; 4 L Ed

2d 134 (1959). This forced courts to view any police-citizen

interaction in one of two ways: either as a full arrest, subject

to the probable cause standard; or as a non-event, unrelated

to the restrictions or limitations of the Fourth Amendment.’

However, the ambiguities of human interaction proved such

rigidity inadequate to the task of maintaining order in a

complex and changing society, forcing the Court to modify

its approach. And in Jerry v Ohio, 392 US 1 (1968), the

Court would make a fundamental shift in the focus of the

Fourth Amendment that leads us to the case at hand.

In Terry, a veteran police officer had observed some men

standing on a street corner, going through an elaborate ritual

of strolling casually past a store window and looking inside,

then returning to the corner. After they repeated this ritual

continuously for 10 or 12 minutes, the officer concluded that

they might be planning a robbery, and that it was his duty to

investigate the matter further. Approaching the men, he

identified himself as a police officer and asked for

identification; fearing they might be armed, he patted down

the outside of Terry's clothing and found a gun. Frisking the

others, he found a gun on one of them-and ~ok them to the

‘One must also remember that, less than a decade earlier, this Court

had radically altered the legal landscape with its landmark decision in

Mapp v Ohio, 367 US 643 (1961).

Considering the matter from a practical standpoint, it was one thing

for federal courts to exert control over federal law enforcement, limited

jurisdictionally to prosecuting federal crimes, it was quite something else

to try to exercise such control over local law enforcement, which had the

responsibility of maintaining order and keeping the peace in a wide

variety of local environments. See the concurring opinion of Justice

Harlan in Coolidge v New Hampshire, supra, expressing concer that the

concerns and problems of local authorities may serve to distort the

principled application of the Fourth Amendment.

Fe

police station, where Terry and a companion were formally

charged with carrying concealed weapons. On the

defendants’ motion to suppress evidence, the trial court

dismissed the notion that the officer had probable cause to

arrest the defendants before he discovered the weapons:

however, distinguishing between an investigatory stop and a

full arrest, the court found that the officer had reasonable

grounds to believe that the defendants were “conducting

themselves suspiciously," and therefore had the right to make

further inquiry into their actions. And given his right to

investigate, it followed that he had the right to conduct a frisk

for weapons, in order to guarantee his own safety.

On certiorari, this Court affirmed. Rejecting claims that

the Fourth Amendment applied only in cases of full custodial

arrest, the Court found that a "seizure" in the constitutional

sense occurs whenever a police officer restrained the freedom

of a citizen to go his own way. And the Court deemed that it

require “torture of the English language" to find that "a

careful exploration of the outer surfaces of a person's

clothing...in an attempt to find weapons is not a ‘search.""

Terry v Ohio, supra at 16. Even so, the Court carefully

distinguished the two severable Clauses of the Fourth

Amendment — the “Warrant Clause” and the

"Reasonableness Clause” — to apply the policies and

protections of the Constitution in a situation which did not

lend itself to the time constraints of legal process:

"If this case involved police conduct subject

to the Warrant Clause of the Fourth

Amendment, we would have to ascertain

whether ‘probable cause’ existed to justify the

search and seizure which took place.

However, that is not the case....[W]e deal here~

with an entire rubric of police conduct —

necessarily swift action predicated upon the

on-the-spot observations of the officer on the

beat — which historically has not been, and as

a practical matter could not be, subjected to

-8-

the warrant procedure. Instead, the conduct

involved must be tested by the Fourth

Amendment's general proscription against

unreasonable searches and seizures." Jerry v

Ohio, at 20.

Noting that courts can assess a search’s reasonableness of

aonly by “balancing the need to search against the invasion

which the search entails," Jerry, at 21, quoting Camara v

Municipal Court, 387 US 523, 535-536 (1967), the Court

stressed the need for an objective standard of review, since

relying upon the officer's subjective good faith would reduce

the Fourth Amendment to mere words. Thus, when judging

whether the specific facts available to the police justified a

particular intrusion, courts would ask whether a hypothetical

"reasonable man" would find that “the facts available to the

officer at the moment of the seizure or the search warrant[ed]

a man of reasonable caution in the belief that the action taken

appropriate." Jerry, at 21-22.

” a the oe public interest in “effective crime

prevention and detection," Terry, at 22,° the Court found it

constitutionally unobjectionable for an officer to approach

and briefly detain a citizen on the street, even in the absence

of probable cause, so long as he has observed “unusual

*Actually, the concept of “reasonable search and seizure,” need not be

hostile to efforts to enforce the law. US CONST, Preamble. C/,

Rousseau, THE SOCIAL CONTRACT, (Penguin Ed, 1988), pp 64-65

(Noting that Man acquires freedom only through the institution of Law).

The primary purpose of government is, after all, protecting its citizens,

and however honest or idealistic it might be, a government which fails

to fulfill this fundamental goal has failed in its most basic function. It

follows that the Constitution cannot demand law enforcement methods

which are ineffective to enforce the law, unless the Law itself wishes to

abdicate its position of ruling authority. And the abdication of the Rule

of Law would lead either to tyranny or anarchy — the current state of

affairs in Somalia being witness to what happens whenever the

governing authority cannot, or does not, govern. Cf, Hobbes,

LEVIATHAN, (III Bohn Ed, 1839), pp 110-118 (Noting that “where there

is no common power, there is no law”).

-9-

conduct which leads him reasonably to conclude in light of

his experience that criminal activity may be afoot." Jerry,

supra at 30. In such cases, a brief investigative detention to

confirm or dispel his suspicion is reasonable, since the

overnding public interest in preventing crime outweighs the

minor inconvenience to the person detained.

The pivotal point of reasonableness established, the Court

has since grappled with the limitations and logical

consequences of its approach. But "reason" by its very nature

depends not on some immutable formula but upon the

“totality of the circumstances — the whole picture," United

States v Cortez, 449 US 411, 417 (1981). Thus, the existence

of "reasonable suspicion" will depend not upon the possibility

of an innocent explanation for observed conduct, but rather

upon a confluence of factors which, taken together, warrant

further investigation. United States v Sokolow, 490 US |

(1989). And as this Court noted in Cortez, courts must

realize that they are dealing not in “hard certainties," but

rather in relative probabilities:

“Long before the law of probabilities was

articulated as such, practical people

formulated certain common-sense conclusions

about human behavior; jurors as fact-finders

are permitted to do the same — and so are law

enforcement officers." Cortez, at 418.

Accordingly, while "reasonable suspicion" as a concept still

eludes successful articulation, compare, eg, Sokolow, supra

with Florida v Royer, 460 US 491 (1983), the cases agree

that “reasonable suspicion" falls some degrees short of

"probable cause," Sokolow at 10; Royer at 500, and that

courts must make some concessions to the same ambiguities

of life that make articulating the parameters of "reason" such

a daunting task.

However, applying the concept of "reasonableness" to

police conduct presents the danger of judicial chaos: reason,

like beauty, is often a subjective judgment; and without a

clear consensus on the contours of "reason," the unrestrained

-10-

judicial application of a "rule of reason" will lead to law

enforcement by the whims of judges just as surely as vesting

unlimited discretion in the police would place the liberty of

all “in the hands of every petty officer."’ Even so, to the

extent that language conveys a common meaning, we may

limit the judge's discretion by words; and so long as the

traditions of the Law require adherence to precedent,* and our

search for Law seeks underlying principles of common

application rather than decisions based on the subjective

preferences of the individual jurist, judging police actions by

applying the concept of "reason" gives courts a needed

flexibility in dealing with situations as infinitely diverse as

life itself, and to which no single rule crafted by the limited

human mind can address in all its permutations.

Toward this end, this Court analyzes police-citizen

encounters using a three-tier framework in applying the

Fourth Amendment: Initially, police may approach any

citizen on the street for the purpose of asking him questions,

without any level of justification under the Fourth

Amendment; the citizen, however, is equally free to ignore

the police and proceed upor-his way unrestrained — and his

mere refusal to cooperate provides no basis for his detention.

Florida v Royer, 460 US 491, 497-498 (1983); United States

v Mendenhall, 446 US 544, 555 (1980). Cf Davis v

Mississippi, 394 US 721 (1968); Brown v Texas, 443 US 47

(1979). The next level of encounter is the prototypical

Terry-stop — permitting police to detain a citizen and search

him for offensive weapons, but requiring the officer to have

"Cf, Frank v Maryland, supra at 364, quoting Tudor, LIFE OF JAMES

Oris (1823), p 66.

* Actually, one surveying American law in the 1960's might find

reason to question the role of precedent in American jurisprudence.

Compare, eg, Mapp v Ohio, supra with Wolf v Colorado, supra, or

Malloy v Hogan, 378 US 1 (1964) with Twining v New Jersey, 21! US

78 (1908), Snyder v Massachusetts, 291 US 278 (1936) and Cohen v

Hurley, 366 US 117 (1961).

a reasonable, articulable suspicion of wrongdoing. Terry v

Ohio, supra; Florida v Royer, at 498-501; Brown v Texas, at

51. And the third level of encounter is a full-blown arrest —

requiring probable cause. Dunaway v New York, 442 US 200

(1979); Florida v Royer, at 499-501. Thus, the applicable

standard of justification will vary, depending on the

intrusiveness of the encounter, since the concept of

"reasonable search and seizure" imposes different standards

for different levels of intrusions, cf, Florida v Royer, at 500;

Terry v Ohio, at 19. )

Unfortunately, in Law as in many disciplines, elemental

concepts often go unexamined, and while the Court

developed a general test for determining the question of

"seizure," United States v Mendenhall,(Would a reasonable

person in similar circumstances believe he was not free to

leave), the Court's preference for the "case by case" resolution

of basic principles ordained that progress would be slow. Not

until Chesternut, for example, did the Court explore the

parameters of a "seizure" in the context of a "chase:" and

even there, the Court deferred making a definitive decision

for age three years, in Hodari.

is case, the Court confronts a ion that it has

twice deferred — namely, inikareaiies che flees at the

mere sight of the police gives the officers reason briefly to

detain him. The accumulated folk-wisdom of several

thousand years, noting that “[t]he wicked flee when no man

pursueth,” PROVERBS, 28:1, suggests that the answer is an

unqualified “yes,” and a wealth of authority from more

contemporary sources seems to agree. See, eg, State v

Anderson, 155 Wis 2d 771; 454 NW2d 763 (1990); Platt v

State, 589 NE2d 222 (Ind, 1992). But this case will decide

whether our understanding of the Fourth Amendment remains

consistent with such ancient wisdom, or reflects a more

modern deconstruction of the concept of “reasonableness,”

12.

within the context of the Fourth Amendment.”

2.

History, Language, and the Constitution

“Human history becomes more and more a

race between education and catastrophe.”

H. G. Wells, THE OUTLINE OF

History (1949 Ed), p 1198.

Given the specific limitation of the Fourth Amendment to

"unreasonable searches and seizures," Amicus submits that we

must address the Framer’s conception of reasonableness

before we can analyze the Fourth Amendment's application

to the present case. After all, unless one adopts the notion

that the Judicial Powers of government include the right to

rewrite any text which does not accord with the Judiciary's

institutional or subjective preferences,'° we must accept the

limitations of language placed upon words enacted into law,

for rejecting such notions of judicial limits means rejecting

* Much of the case law on point stems from civil actions. See, eg,

Tennessee v Garner, supra, Brower v Inyo County, supra, Malley v

Briggs, 475 US 335 (1986).

# Tough running the risk of converting the Fourth Amendment from

a source of protection for citizens against a potentially abusive

government into a source of income for a potentially abusive plaintiff's

bar, this could lead one to wonder if the developing body of civil law has

undercut deterrent rationale of exclusionary rule enough to cast into

doubt its wisdom and legitimacy. This is a question which this Court has

noted in the past, and may wish to revisit in the future. Cf Stone v

Powell, 428 US 465, 496 (1976)(Burger, CJ, concurring). See also, Wolf

v Colorado, supra at 28-29 (Noting the wide-scale rejection of the

exclusionary rule throughout Anglo-American jurisprudence).

Curiously, modem commentators appear to adopt such a view.

See, eg, Brest, The Admsonsstved Quest for the Original Understanding,

60 BUL REV 204 (1980); Fallon, A Constructivist Coherence Theory of

Constitutional Interpretation, 100 HARV L REV 1189 (1987), Steiker,

Second Thoughts About First Principles, 107 Harv L Rev 820 (1994).

Whether such a view reflects enlightened scholarship, the commentators

own-subjective political preferences, or a fundamental distrust of the

results of democratic self-government, remains to be seen.

o} 3.

the wisdom, as well as the enacted Law, of prior generations.

The historical record shows that the imprecision of

language was a problem familiar to the Framers of our

Constitution. Madison, for example, wrote perceptively of

the limitations of words as a medium of communication.

"The use of words is to express ideas," he wrote in THE

FEDERALIST:

"Perspicuity, therefore, requires not only

that the ideas should be distinctly formed, but

that they should be expressed by words

distinctly and exclusively appropriate to them.

But no language is so copious as to supply

words and phrases for every complex idea, or

SO Correct as not to include many equivocally

denoting different ideas. Hence it must

happen that...the definition of them may be

rendered inaccurate by the inaccuracy of the

terms in which it is delivered. And this

unavoidable inaccuracy must be greater or

less, according to the complexity and novelty

of the objects defined. When the Almighty

Himself condescends to address mankind in

their own language, his meaning, luminous as

it must be, is rendered dim and doubtful by

the cloudy medium through which it is

communicated." THE FEDERALIST, No: 37.

Within the limits of human language, courts have a

unique power and a burdensome responsibility: while the

Judiciary gives substance to Law, through the power of

adjudication, a court's first responsibility is to give form and

substance to the Lawmaker’s intent. While this implies the

need for constant attention to detail, applying the rules of

society in the context of the infinite diversity of creation, it

also requires the judge to apply not his own subjective

preferences, but those of the Lawmaker — to adopt not the

construction best suited to the judge's personal conception of

Justice, but rather to enforce the law given him by statute,

-)4-

constitution, or precedent. THE FEDERALIST, No. 78. See, eg,

Printz v United States, 521 US 98 (1997); Carroll v United

States, 267 US 132, 149-150 (1925.

While it is unlikely that the Framers anticipated the

revolution in transportation and communication that has

transformed our country, we can often apply their underlying

principles of government to many cases arising today, and

when this is possible, there is no need for further guidance

from the Legislature or the people. However, a court is never

free to disregard History in favor of furthering a judge's

subjective point of view. And where the policies

underscoring the provisions of the Constitution conflict with

a judge's own preference, it is the Constitution — the

Framers’ policy choices, as reflected in the Framers’ own

language — which must control. THE FEDERALIST, No. 78.

Cf, Printz v United States, Carroll v United States.

History teaches us that the Framers were, in many

respects, sons of the French Enlightenment, Durant,

ROUSSEAU & REVOLUTION (1967), p 867, and thus products

of their era’s admixture of rationality, tolerance, and secular

optimism that elevated “reason” into a mainstay of human

discourse: in this view, Man was flawed but perfectible, and

the use of human reason to the resolution of problems seemed

to provide the key to all human endeavors."’ Still, the

" Actually, their of reason to contemporary problems often

ssetiiieatettamieratenapbeliniemmed apaimmien

see, A. Smith, THE WEALTH OF NATIONS (1776)(Noting the concept of

enlightened self-interest), politics, see, Montesquieu, THE SPIRIT OF THE

Laws, (1748)(Postulating an animating “spirit” for each major system

of governance — “honor” for monarchies; “virme and civic

consciousness” for democracies; and “fear” for despotism — and noting

the dire consequences of each permitting a weakening of its defining

spirit), or religion. See, Hume, DIALOGUES CONCERNING NATURAL

RELIGION (1779)(Positing that absolute certainty is possible only in field

of mathematics; all else, depending upon “matters of fact,” are open to

question).

On the other hand, as one authority has noted, in this era of hope and

-15-

Enlightenment remained, at its core, a religious age, Gay,

AGE OF ENLIGHTENMENT (1966), p 31, and contemporary

philosophers struggled with efforts to find common ground

between reason and faith: the Cambridge Platonists, for

example, saw the two as complementary, rather than

conflicting, seeing in Christianity the practice of reason,

virtue, and mystical contemplation. Gay, at 31-32.

Viewed through the lens of History, there seems no basis

to conclude that the Framers would have regarded a police

officer’s act of detaining a citizen who bolted from his

presence to lack a basis in reason: as they would have been

well acquainted with PROVERBS 28:1, it would have seemed

unremarkable that a constable would seek to learn the reason

why someone might flee, rather than trying to rationalize the

behavior. Moreover, in their less secular era, many would

have deemed the wisdom contained in Proverbs to be

revealed word of God, and their conception of public duty in

a democracy would have included order and obedience to

greater authority. See, THE FEDERALIST, No. 26 (Noting the

“citizens of America have too much discernment to be argued

into anarchy” and applauding the “deep and solemn

conviction in the public mind that greater energy of

government is essential to the welfare and prosperity of the

community”). It is unlikely that they would have regarded

optimism “the difference between open-mindedness and gullibility was

often indiscernible,” Gay, at 65, and some Enlightenment thinkers are

more valuable for providing a cautionary tale, rather than food for

thought: one such visionary in the field of law was Johann Lavater, who

specialized in the “science” of physiognomy — the belief that one’s

outward appearance was a reliable indication of character He claimed

the ability to spot a murderer merely by studying his face, and advocated

moving Courts past the orthodox, unenlightened forms of 18* Century

jurisprudence, since all judges had to do was follow certain

“physiognomic” rules to tell whether an accused was guilty or innocent.

Gay, at 68. Though grateful to be spared the dubious benefits of some

“cutting edge” 18* Century science, Amicus occasionally harbors doubts

about some forms of “pseudo-science” in our own day.

-16-

flight from a constable to be an indication of anything other

than a guilty conscience — and inconceivable that they would

have deemed it a cause for the constable to avert his eyes,

rather than move to protect the community he was sworn to

serve. It strikes Amicus as equally inconceivable that they

would have found the degree of intrusiveness stemming from

the mere presence of an officer on a public street to be a

cause of concern’? — except to one with a guilty conscience,

to whom any approach will be a threat, and apprehension

anticlimactic. Cf, Poe, THE TELL-TALE HEART, (1845).

Thus, on the basis of the Framer’s choice of language, it

appears that the lower court erred in deciding this case, and

B.

PARADIGMS LOST

“The laws of a nation form the most

instructive part of its history.”

Edward Gibbon, THE DECLINE AND

FALL OF THE ROMAN EMPIRE (1776)

At risk of being lost amid the points and counterpoints of

law professors, commentators, and litigants, it appears to

Amicus that this case presents a simple fact pattern with

deceptively wide-ranging ramifications — for the legal

resolution of the pattern will speak volumes about our legal

kind of Society we may become in the future. Therefore, let

us consider the ramifications of two conflicting responses to

the following paradigm:

A police officer, walking through a crowd on busy

street, smiles and greets the passers-by as they go

about their business. As one young man calmly turns

"We might also note that for the first 174 years of this Country's

existence, the notion that the Fourth Amendment could limit the ability

of local authorities to enforce law and order on their own streets was a

concept alien to the Federal Constitution. Compare, eg, Mapp v Ohio,

with Wolf v Colorado, and Irvine v California.

ol

to face the officer, a lov.’ of abject panic crosses his

Jace — and immediately, ne turns and bolts down the

Street, running away from the officer as fast as he

can.

As this case discloses, there are two basic responses to such

an occurrence:

(1) “Isn't that interesting,” the officer says to himself, as

he contirmes walking.

(2) “Stop!” commands the officer, who pursues and stops

the young man to find out why the latter is running

Jrom him.

To the extent that the Law commands one response over

the other, the ramifications are telling:

1.

“See no Evil....”

The defense argument,” and the Illinois Supreme Court,

investigating—or whether the Constitution commands that the police

look the other way, and pretend it never happened.

appear to presume a Society in which law enforcement is

entirely reactive, unflinchingly credulous, and blissfully naive

— and is constitutionally forbidden from being otherwise by

the United States Constitution: from the sensible observation

that “[fJlight is an ambiguous act” and one’s “[a}]voidance of

strangers or the police may stem from motives other than

consciousness of guilt,” BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI, p 7, Respondent reasons that since

“both flight and presence in a high crime area are consistent

with innocent behavior,” they provide no basis for a Jerry-

stop, and that the only appropriate police action is to let the

citizen keep running; and the Illinois Supreme Court, having

concluded that the right of free association prohibits police

from telling people loitering about to “move along,” Chicago

v Morales, 177 Ill 2d 440, 459-461; 687 NE2d 53 (1997)

aff'd oth grds ___ US___ (No. 97-1121, decided June 10,

1999” * reasons because police cannot force citizens to move,

they uot force them to stand still." Both arguments,

‘As this Court noted in Morales, the problem with the anti-gang

ordinance in question was not that it empowered police to instruct

citizens to “move along,” but that it gsve unbridled discretion to the

police in determining a citizen’s requisite lack of “apparent purpose” to

bring them within the reach of the ordinance. Most members of the

Court seemed to agreed that a more narrowly drafted ordinance would

pass constitutional muster.

'SThis argument strikes Amicus as a logical non sequitur: just as there

is a difference between detaining someone and following him, California

v Hodari D, supra, Amicus perceives a difference between detaining

somebody, and watching him run away as fast as his legs can carry him.

And the State of Illinois draws no distinction between observing

behavior, and drawing an inference from the behavior: the state court's

apparent contrary assumption notwithstanding, Amicus’ research was

unable to discover arry state statute requiring a citizen to stop what he is

doing and remain where he is, whenever a police officer appears on the

scene, on the other hand, the manner in which the citizen chooses to

depart — eg, fleeing in panic and confusion, as opposed to taking special

care to cross the street with the light, so as to avoid a ticket for

jaywalking — may say a great deal about what the citizen has been

-19-

however, seem premised on the assumption that police must

resolve all ambiguities in favor of inaction, and that an

individual's interest in Liberty cannot abide any police

a consciousness of guilt, provide no corroboration for an

inference of wrongdoing. From this premise, it follows that

flight alone cannot justify a detention, since flight alone

suggests, but does not establish, guilt — and that, absent

some other circumstances to confirm the inference of a guilty

conscience, police may not view flight at the sight of a police

officer as anything more than “the exercise — at top speed —

of the person’s constitutional right to move on.” People v

Wardlow, supra at 701 NE2d 487, quoting State v Hicks, 241

Neb 357; 488 NW2d 359, 363 (1992) and People v Shabaz,

supra at 378 NW2d 460. Accordingly, Respondent argues,

where an ambiguous act is consistent with innocent behavior,

the police have no grounds to justify a Terry-stop. BRIEF IN

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI, p 7;

People v Wardlow, supra.

Though perhaps not readily apparent, upon reflection the

logical implications of Respondent’s position are startling:

Police activity is, at its core, a necessary evil to be avoided

whenever possible, justified only by a prima facie showing of

citizen misconduct, marginal or ambiguous behavior, while

perhaps a source of subjective curiosity, can justify no

official action, since the police must resolve all ambiguities,

no matter how far-fetched or convoluted, in favor of

individual Liberty, rather than the Public Safety; and unless

observable conduct confirms an inference of identifiable

criminal conduct by an identifiable person, the police — and,

as a consequence, the Law — can undertake no action to

investigate. This implies that the Law’s primary concern will

doing in the recent past. See, eg, People v Souza, 9 Cal 4* 224: 36 Cal

Rptr 2d 369; 885 P2d 982 (1994).

-20-

rather than protecting innocent people from those who would

break the Law to do them harm.

The prototype for Respondent’s model of the modern

law-enforcement officer is, of course, Sgt. Schultz, the

sergeant of the guard at Stalag 13. See, HOGAN’S HEROES,

CBS (1965-1971). Charged with maintaining discipline and

order at a German prisoner of war camp during World War

Il, his characteristic response to anything out of the ordinary

— “I see nothing — noth-thing|” — is a recurring attempt to

avoid trouble for himself through the expedient of denying

the evidence of his own eyes and ears: it is, after all,

theoretically possible that the routine appearance of inmates

at the local haufbrauhaus, or the odd assortment of radio

equipment, guest stars, and beautiful women that somehow

keep appearing at the POW camp is consistent with both

German efficiency and order; and while investigating such

phenomena might contribute to the successful operation of

his camp by uncovering breaches of order and security, it

would cause him nothing but grief.

Of course, in the view of at least one student of television,

literature, and the Second World War, the reason the

character of Sgt. Schultz works is because the inmates are the

heroes, fighting against the evil that was Nazi Germany —

and Schultz, by ignoring or denying the evidence of his own

senses, was helping the forces of Good by rendering Evil

comically ineffective. But the comedy would fail if the

program depicted an Allied prison camp, where the Germans

were the inmates and Schultz’ bumbling incompetence was

assisting the Nazi effort to enslave the world: in that case,

the show would be tragedy, rather than farce — and Schultz

would be a pathetic failure, rather than a source of laughter.

Those who prefer that the police emulate Sgt. Schultz,

and spend their duty time seeing “nothing — noth-thing!”,

may reveal more than they realize about their vision of Good

and Evil in contemporary American society. In any event, if

we wish our attempts at keeping the public peace to mirror

the efficiency of Stalag 13, this is the model we should adopt.

2.

“..&@ never-ending battle for

Truth, Justice, and the American Way.”

Petitioner's view, which Amicus shares, sees law

enforcement as a positive good in a democratic society:

protecting the weak and defenseless from human predators is

a core function of any government and, in a democracy, the

police are the eyes and ears of the Law. While all power is

subject to abuse, the solution is not to eliminate power, and

place us at the mercy of the lawless; rather, the solution is for

the Law to curb the abuse. Moreover, since Liberty is

impossible without Order, cf, Rousseau, supra; Hobbes,

supra, the occasional minor inconvenience for the sake of

enforcing the Law is a price citizens must pay to live a free

society. In this view, those charged with enforcing the Law

should be intelligent in the execution of their duties, and alert

to any signs of trouble. Police should be trained to spot

anything that suggests criminal activity or mischief, and

encouraged to take reasonable steps to investigate. In

addition, police are admonished to use common sense in all

dealings with the public — whether it means using their

discretion to admonish, rather than punish, for a minor breach

of the peace; or in assessing the degree of risk to public safety

posed by action, or inaction, on their part.

Though perhaps not as conducive to pretty rhetoric,

Petitioner’s logic presents a more optimistic view of Society,

and self-government, than that of Respondent: while human

beings are capable of great cruelty and evil, they are also

capable of kindness, nobility, and hope; and though evil may

exist in the world, Society can keep it at bay through the

institution of Law. Moreover, in a democratic Society, where

Government exists to serve its citizens, those who enforce the

Law are public servants, rather than public oppressors; and in

a Society which values Liberty as well as law and order, the

Law will craft the necessary compromises in order to achieve

both. Accordingly, the Law will use common sense to

protect freedom, as well as the weak and defenseless: and

«22

courts will have little patience with apologists for criminal

behavior, who claim a moral equivalence between clumsy

efforts to enforce the Law, and callous attempts to break it.

Modesty, restraint, and an aversion to avoidable ridicule

preclude Amicus from identifying the precise prototype for

this view of law-enforcement officers, except to say that it

comports with the idealized self-image of many members of

the law enforcement community. However, as the sub-

heading for this portion of the argument suggests, the model

is somewhat more heroic than Respondent’s ideal of Sgt.

Schultz. Suffice it to say that in many cases, as here, it

involves officers who go about their duties disguised as mild-

mannered minions of a great metropolitan police department.

With these differences in outlook in mind, let us turn to

the issue at hand:

Cc.

FLIGHT, SUSPICION, AND REASON

The underlying premise of the Illinois Supreme Court was

that a citizen's act of fleeing from the presence of police

justifies no legitimate police interest. This accepted as a

given, it followed that the “flight alone is insufficient to

create a reasonable suspicion of involvement in criminal

conduct.” People v Wardlow, at 701 NE2d 486. However,

this Court can return reason to the Fourth Amendment by

recognizing the fallacy in the first assumption of the

syllogism, and acknowledging that while not justifying an

arrest; flight does invite pursuit — and unprovoked flight

from the presence of police invites an inquiry into the reason

for such odd behavior.

The insight that a guilty conscience can cause one to run

from shadows is as old as the Book of Proverbs, 28:1, and as

timeless as the wisdom of Juvenal: “This is the first of

punishments, that no guilty man is acquitted if judged by

-23-

himself."'® SATIRES, xiii, 2. It was conscience that proved

the undoing of the protagonist in The Tell-Tale Heart. and it

was Dostoyevsky's realization that torment over one's own

misdeeds can exact a heavier burden than the Law that

breathed life into Crime and Punishment. Flight is, by its

nature, an instinctive act of self-preservation that seeks to

remove the actor from the presence of a perceived threat;!’

and if a citizen bolts in unprovoked flight at the sight of the

police,’ it is not unreasonable to infer that the action stems

from a guilty conscience. California v Hodari D, supra at

499 US 623 n 1; Michigan v Chesternut, supra at 100 L ed

2d 574 (Kennedy, J, concurring). Courts do not, after all,

hold police to impossible standards of prescience or

precision, nor require them to form in their own minds the

precise legal rationale that hindsight shows the circumstances

justify, in order to render their conduct “reasonable” under

the Fourth Amendment. Scott v United States, 436 US 128,

138 (1978); People v Arterberry, 431 Mich 381; 429 NW2d

574 (1988). And as flight is a sufficiently odd response to the

appearance of police to warrant a reasonably prudent officer

in concluding that “criminal activity may be afoot," it

‘*Amicus notes that Juvenal was speaking of psychological

punishment and honest self-judgment, rather than advocating the

wide-scale restructuring of Roman legal institutions.

"Cf, Shakespeare, HENRY IV, PART I, V, iv, 120 (Noting that "{tJhe

ree apne oe ee "); see also, Cleese, Idle, et al, M.

AND THE HOLY (1975),"Ballad of Brave, Brave, Brave

Sir Robin, the Not-Quite-so-Brave-as-Sir-Lancelot":

“When danger reared its ugly head,

“He bravely tumed his tail and fled..."

“*Police could not, of course, provoke a citizen to flee — for instance,

by threats of harassment or physical harm — and then use his subsequent

efforts to avoid trouble as an excuse to detain him. Under those

circumstances, however, the citizen's “flight” is readily understandable

— and unreasonable police conduct in provoking one to flee could well

render any subsequent seizure and detention unreasonable.

-24-

supplies the “articulable suspicion" necessary to warrant a

further inquiry, 7erry v Ohio, supra at 21-22, 30; State v

Anderson, 155 Wis 2d 77, 84-85; 454 NW2d 763, 765-766

(1990), giving officers ample grounds to detain the fleer long

enough to discover the cause of his flight.'* California v

Hodari D, supra at 499 US 623 n 1; Michigan v Chesternut,

supra at 100 L Ed 2d 574 (Kennedy, J, concurring). See also,

State v Anderson, supra, Platt v State, 589 NE2d 222, 226-

227 (Ind, 1992).

Courts considering the implications of flight” largely

'® Actually, in Sibron v New York, 392 US 40, 66-67 (1968), this Court

noted that “deliberately furtive actions and flight at the approach of

strangers of the police are strong indicia of mens rea...” Therefore, the

Sibron Court held, “when coupled with specific knowledge. ..relating the

suspect to the evidence of crime,” they could justify an arrest upon

probable cause. Simple logic would seem to hold that if flight (mens

rea) + specific evidence of a crime = probable cause, then evidence of

flight would suffice for “articulable suspicion.” And this appears to be

the position of Professor LaFave. LaFave, 4 SEARCH AND SEIZURE (3D

ED), §9.4(f), p 181-182 (1996).

Jurisdictions holding mere flight to be insufficient to justify police

interest all appear to view flight upon the approach of the police as

“simply...the exercise — at top speed — of the person’s constitutional

right to move on.” See, eg, State v Hicks, 241 Neb 357, 363; 488 NW2d

359, 364 (1992); People v Shabaz, supra at 378 NW2d 460; People v

Wardlow, supra at 701 NE2d 487. This appears to overlook the

importance of context in assessing one’s behavior: those who bolt from

police presence in one context — at the starting line of a 10 kilometer

run, for example — suggest one thing by their actions; those who bolt

from an officer’s presence in another context, such as a dark street at

3:00 am, see, People v Souza, supra, or without a discernible reason,

State v Anderson, supra, may suggest something quite different. But

jurisdictions which scoff at the proverbial common sense of PROVERBS,

28:1 not only deprive the police of the ability to use common sense: they

also appear to ignore the fact that time and again, events proved the

officers’ suspicions to be correct. See, eg, Hicks, supra; Shabaz, supra,

Wardlow, supra. See also, People v Talbot, 792 P2d 489 (Utah App,

1990); People v Holmes, 81 NY2d 1056; 619 NE2d 396 (1993).

While Amicus does not claim that hindsight alone can excuse an

-25-

concur: drawing upon the anticipated reaction of drug dealers

to the approach of police, for example, the Connecticut Court

of Appeals held that police action in seizing those fleeing

through the rear of a restaurant, when other officers

approached the scene of reported, though unobservable, drug

activity from the front, constituted a TJerry-stop on

reasonable, articulable suspicion, State v Williamson, 10

Conn App 532; 524 A2d 655, 659-660 (Conn App, 1987).

The Indiana Supreme Court, recognizing that “suspicious

conduct by its very nature is ambiguous,” observed that

“[f]light at the sight of police is undeniably suspicious

behavior,” and therefore approved the investigative detention

of a motorist who fled from the scene in great haste, when a

police car pulled up behind his parked vehicle. Platt v State,

589 NE2d 222, 225-227 (Ind, 1992). Similarly, the Sixth

Circuit has noted that “[f]light invites pursuit,” and that flight

“from a clearly identified law enforcement officer may

furnish sufficient ground for a limited investigative stop,”

United States v Pope, 561 F2d 663, 668-669 (CA 6, 1977);

see also, United States v Lane, 909 F2d 895 (CA 6, 1990),

and most other Circuits concur. See, eg, United States v

Rundel, 461 F2d 860 (CA 3, 1972); United States v Haye,

825 F2d 32 (CA 4, 1987); United States v Vasquez, 534 F2d

1142 (CA 5, 1976); United States v Cardona-Rivera, 904 F2d

1149 )CA 7, 1990); United States v Jackson, 741 F2d 223

(CA 8, 1984).

Perhaps the best treatment of the issue, however, comes

from the Wisconsin Supreme Court decision in State v

Anderson, supra: in that case, as here, the fled at the approach

of identifiable police cars, and police pursued him to

determine the cause of his flight. Noting that the critical

unreasonable action, the consistency with which those who bolt from the

presence of the police tur out to be engaged in criminal misconduct

might strike an objective observer as reason enough for second thoughts

about the wisdom of the Shabaz view of the neutral implications of

panicked flight.

=26-

Fourth Amendment question turned on the reasonableness of

police conduct under the facts and circumstances confronting

them, the court reasoned that since “reasonableness is a

common sense test,” the appropriate question was not

whether the circumstances were amenable to differing

interpretations, but rather “what is reasonable under the

circumstances” — or, more specifically: “What would a

reasonable police officer reasonably suspect in light of his or

her training and experience?” State v Anderson, at 454

NW2d 765. In this view, the relevant concern was not

certainty, but ambiguity — and resolving that ambiguity was

the whole point of an investigative detention under Jerry:

“(Police officers are not required to rule

out the possibility of innocent behavior before

initiating a brief stop....[SJuspicious conduct

by its very nature is ambiguous, and the

principle function of the investigative stop is

to quickly resolve that ambiguity. Therefore,

if any reasonable inference of wrongful

conduct can be objectively discerned,

notwithstanding the existence of other

innocent inferences...the officers have the

right to temporarily detain the individual for

purposes of inquiry.

“Flight at the sight of police is undeniably

suspicious behavior. Although many innocent

explanations 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.

Under these circumstances, it would have

been poor police work indeed for an officer to

<24-

have failed to investigate this behavior

further.” State v Anderson, at 454 NW2d 766

(Citations omitted).

The legal construction of “reasonableness” which the

Illinois Supreme Court places upon the Fourth Amendment

needlessly constricts the ability of police officers to note and

draw inferences from the reaction of those around them, and

rejects a wisdom that reaches back into Antiquity, see,

PROVERBS, 28:1, teaching us that the panic stemming from a

guilty conscience induces flight — or other, similarly odd

behavior — even when there is no danger. This holding is

inconsistent with the application of reason to human

interaction, and ignores the common sense that each of us

bring to our lives every day; even worse, such a view of the

Fourth Amendment would carve this misguided, stubbornly

obtuse view of human nature into stone.

Granted that courts are final arbiter of what is

"reasonable" under our Constitution, Amicus submits that

courts should be careful not to intrude too far into areas

beyond their experience or expertise.” It is, after all, the

police, and not the courts, who deal with crime and criminals

on a daily basis; and it is the police, not the courts, who are

ultimately charged with keeping our streets safe, and our

property secure. Therefore, except under extreme

circumstances, courts should respect their experience in

determining what actions are necessary or useful to maintain

*1In point of fact, there will be many factors a well-trained police

officer will notice, in assessing what is going on around him —

including the reactions of others to his own presence or appearance on

the scene. See, eg, Tiffany, Mcintyre, and Rottenberg, DETECTION OF

CRIME (1967). See also, LaFave, supra at §9.4(f), pp 176ff.

“As one authority has noted: “Law teachers apart, judges should

perhaps be the last to lay claim to any special knowledge of the

workings of ordinary human nature.” Wise, Criminal Law &

Procedure: 1974 Annual Survey of Michigan Law, 21 WAYNE L REV

401, 424 (1975).

-28-

law and order on streets, and to ensure that the rule of Law,

rather than that of the Jungle, prevails in our society. US

Const, Art III.

Accordingly, the Illinois Supreme Court holding below is

based upon flawed reading of the Fourth Amendment, and

cannot provide a basis for suppressing evidence in this case.

D.

CONCLUSION

It appears consistent with both the purpose and scope of

the Fourth Amendment to hold that one's unprovoked flight

from the presence of police provides the justification for a

second-tier encounter under this Court’s decisions in Jerry v

Ohio, and Florida v Royer. Cf, California v Hodari D, at 623

n 1; Michigan v Chesternut, (Kennedy, J., concurring).

While not unlawful, at the very least such a reaction suggests

an actor who regards the Law as a threat, and is therefore

inherently suspicious. State v Anderson, supra, Platt v State,

supra. While even one with nothing to hide may feel

uncomfortable at the official attention, the Constitution does

not guarantee that law enforcement will be faceless; and, until

now, courts have refrained from construing our Constitution

in such a way as to discourage police from venturing out onto

the streets, for fear of upsetting those with fragile nerves.

Amicus submits that the mere presence of police is a

reassurance to those for whom the Law is a protector, rather

than an adversary; the only one to whom such a presence is

a threat is one with guilty conscience — and an objective

manifestation of that guilty conscience provides police with

sufficient grounds to investigate. The contrary rule, requiring

police to look away and pretend they saw nothing, not only

forces them to ignore the evidence of their senses, but also

teaches them to suppress the protective instincts that a good

policeman needs to execute his duty. Such an outcome is

inconsistent with the function of the police in a democratic

society, in that forbidding an officer from discovering what

is going on within the range of his own senses severs the Law

from its own eyes and ears. More importantly, by

-29-

demonstrating the Law's inability or unwillingness to keep

attuned to the nuances of daily life, it subverts the very

purpose of the Law for the sake of rhetoric, disheartening

those who look to the Law for protection, encouraging those

for whom the Law is an enemy.

Courts have recognized the need to maintain the

confidence and respect of the public, and avoid "subject[ing]

an already much maligned system to further ridicule." People

v Moore, 432 Mich 311, 325-326; 439 NW2d 684 (1989).

The need to correct the holding of the lower court should

therefore be apparent: Such a decision not only conflicts with

common sense, common perceptions, and common

experience, but is also dangerous to public safety, positively

destructive of public order, and likely to make the public

even more despairing of the ability of our democratic

institutions to make democracy work — a system of

governance which requires a Government able to enforce a

rule of law, impose some measure of civility on life, and

assure the safety and security needed for freedom to flourish

and law-abiding citizens to prosper. Amicus submits that any

regime that forbids the use of insights into ordinary human

nature weakens the ability of Government to protect its

citizens from harm — and without confidence in the ability

of Government to fulfill this basic function, our dreams of

ordered liberty would crumble to dust, like withered

parchment. Cf US Const, Preamble; Leviathan, supra; The

Social Contract, supra.

The Constitution does not forbid reasonable actions to

enforce the Law or maintain public peace, and no Legislative

enactment limits the power of police to chase after people

who bolt from their presence. As the Constitution grants

courts no legislative power, US Const, Art III, 1-2, judges

may not adopt such a rule as a matter of policy. Thus, absent

-30-

circumstances which readily explain the action,” one who

bolts at the sight of police has no reason to complain when

they begin wondering about the matter, nor fault them for

trying to determine why their mere presence would strike

someone as a threat.

Accordingly, the lower court decision in this case is in

error, and this Court should reverse.

RELIEF

WHEREFORE, this Court should reverse the holding of

the Illinois Supreme Court.

John D. O’Hair

Wayne County Prosecuting Attorney

Timothy A. Baughman

Chief of Research, Training, & Appeals

Assistant Prosecuting Attorney

1204 Frank Murphy Hall of Justice

Detroit, Michigan 48226

Phone: 313-224-5846

Dated: June 21, 1999

IC/eb

” Amicus notes that, under the “totality of circumstances,” cf, United

States v Sokolow, at 7-8, the explanation for some such actions might be

self-evident: the presence of fully-armed riot police, for example, are

intended to make people disperse, as quickly as possible, and the sudden

appearance of a host of squad cars, accompanied by armed officers clad

in flak-jackets could well induce many prudent, law-abiding citizens to

run for cover at flank speed.

On the other hand, the most likely explanation why a citizen would

bolt from the mere presence of an officer is the citizen's own guilty

conscience.