# Amicus Curiae Brief — Illinois v. Wardlow

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0250%3A10

## Record

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

## Text

EE
Supreme Court, U.S,
FILEQO
> |
(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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0250%3A10. Public record. Not legal advice.