Amicus Curiae Brief — Illinois v. Wardlow

IN THE

Supreme Court of the United States

THE STATE OF ILLINOIS,

Petitioner,

VS.

SAM WARDLOW, A.K.A. WILLIAM WARDLOW,

Respondent.

On Writ of Certiorari to the Supreme Court of Illinois

——————— EEE eee

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

a SETS

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Attorney of Record

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

32? ee

QUESTION PRESENTED

Does unprovoked flight from a uniformed police officer

justify a stop under Terry v. Ohio?

cons De MURR Gh edscccededceccccees: i

EET OPT ETE OP TT OT eTETE TTT iv

i at ecce kc abecebcccctsccecess l

SIME GE GRRE GRE GOSS . . ww cece s ccs eeess 2

etek cc ceedadcnaeeeccaseecees 3

Peco beehbceaekbsetedccvccceccscvcosen 4

I

The reasonable suspicion standard is primarily intended

to prevent harassing stops based upon no more than

IIE. conc cacecccecccsccecees 5

ee 6

EE Wokbco best Widopocccsescces 10

1. Supporting the officer ..............0..0.. 10

2 I cae dnb nes thpaccscucce 13

3. Innocence and suspicion ................. 14

Il

Unprovoked flight from a police officer justifies a

EMER case Cdateccceesedsecesccers 16

CED os is cceccascecsccescces 17

B. Flight vs. walking away .................45: 21

nt nda waebandeenieeecrccces 24

eee ee ices a ck cdantecsccbccess 27

iV

TABLE OF AUTHORITIES

Cases

Adams v. Williams, 407 U. ©. $43, 32 L. Ed. 2d 612,

2 RB Re es ek ee 11,12

Alberty v. United States, 162 U. S. 499, 40 L. Ed. 1051,

Sp Gs GD Soi. csudandcew as bantarvnentes 19

Allen v. United States, 164 U. S. 492, 41 L. Ed. 528,

af Fe 3% | RE eae re? 19

Brown v. Texas, 443 U. S. 47, 61 L. Ed. 2d 357,

ff Fe een ee 13, 21, 23

California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690,

S35 GB GR Gee CeOee ond cctvcedcduwdestsaceecen 17

Camara v. Municipal Court, 387 U. S. 523, 18 L. Ed. 2d 930,

Oe De GR Fay Cee 6.60 cctecscsees bueedbedsewii x

Delaware v. Prouse, 440 U. S. 648, 59 L. Ed. 2d 660,

Oe a Gs Be Meee 6 waniabess cache dchtadc ods 23

Florida v. Royer, 460 U. S. 491, 75 L. Ed. 2d 229,

See a Ge, GND wWewtvcuduwndedcthewuaeecal 21

Gibbs v. State, 306 A. 2d 587 (Md. App. 1973) ........ 25

Graham v. Connor, 490 U. S. 386, 104 L. Ed. 2d 443,

Sa a Ge GED 6 pd ven dcbucidedsiuvseteet 20

In re Tony C., 21 Cal. 3d 888, 148 Cal. Rptr. 366,

Fae eae ee GEE. cask ccs eeensiees 15, 16, 23

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

oe i. Ge SD 0 bc caakahaude ceteneeiaes 6

Maryland v. Wilson, 519 U. S. 408, 137 L. Ed. 2d 41,

ee eee 24

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

) €. BR fy. ere oe ee 20

Ohio v. Robinette, 519 U. S. 33, 136 L. Ed. 2d 347,

BOF EG Geen ccicndccccdnbdisdisdedeadees 24

Ornelas v. United States, 517 U. S. 690, 134 L. Ed. 2d 911,

Se ks Pe ED ace woen cece séddetacctiuent 14

People v. Souza, 9 Cal. 4th 224, 36 Cal. Rptr. 2d 569,

ee IE fi cus wes neuGheasseced 22, 24

People v. Wardlow, 183 Ill. 2d 306, 233 Ill. Dec. 634,

701 N. E. 2d 484 (1998) ............... 2, 3, 16, 21, 22

Sibron v. New York, 392 U. S. 40, 20 L. Ed. 2d 917,

eh MR sc cancidoes 60 ve ecie sakes 17, 18

Smith v. United States, 558 A. 2d 312

en re ls pace 21

Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,

eh Oak SEE cosa nae uid she Gebenus ud Passim

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

45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) ...... 13, 14, 23

United States v. Cortez, 449 U. S. 411, 66 L. Ed. 2d 621,

101 S. Ct. 690 (1981) .......... 5, 10, 11, 12, 21, 24, 26

United States v. Heitner, 149 F. 2d 105 (CA2 1945)... 18,19

United States v. Hensley, 469 U. S. 221, 83 L. Ed. 2d 604,

OSS GB. CR GTS CITED ov cece cc cccccccvecececss 12, 20

United States v. Kerr, 817 F. 2d 1384 (CA9 1987) ...... 25

United States v. Lender, 985 F. 2d 151 (CA4 1993) ..... 24

United States v. Martinez-Fuerte, 428 U.S. 543,

49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976) ........... 12

vi

United States v. Place, 462 U. S. 696, 77 L. Ed. 2d 110,

Se Ge ks Ae Co cu cuncwcdenwavdnetedeunel 12

United States v. Sharpe, 470 U. S. 675, 84 L. Ed. 2d 605,

57 §s S| ee ne ee 24

United States v. Sokolow, 490 U. S. 1, 104 L. Ed. 2d 1,

2 Pee. | . Fe ee ey ae 14, 22

United States v. Watson, 953 F. 2d 895 (CA5 1992) .... 24

Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441,

Se Gi Ga Ae Ce won Bibs hace dee cewbdaudci 18, 26

United States Constitution

if ¥- FF & Beer hare: | -- Sep ee eee 6

United States Statute

Fe Ge We Gp. POE ch neta ois bs th tae bei cite enn on 22

Treatises

W. Blackstone, Commentaries (Ist ed. 1769) .......... 19

W. LaFave, Search and Seizure (3d ed. 1996) ..... 6, 24, 26

J. Wigmore, Evidence (Chadbourne rev. 1979) ...... 19, 23

Miscellaneous

Hobson, Flight and Terry: Providing the Necessary Bright

Line, 3 Md. J. Contemp. Legal Issues 119 (1992) .. 17, 23

L. Tiffany, D. McIntyre, & D. Rotenberg, Detection of

CIRC EEE bc idnatcdscctiicet mete 20, 24

Traynor, Mapp v. Ohio at Large in the Fifty States,

FOES CEs Se BON vc bccsscuvcesceaewibecdvevaue 5

IN THE

Supreme Court of the United States

THE STATE OF ILLINOIS,

Petitioner.

AS

SAM WARDLOW, A.K.A. WILLIAM WARDLOW,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in litiga-

tion relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of victims and

of society to rapid, efficient, and reliable determination of guilt

and swift execution of punishment.

The investigative stop and frisk is a mainstay of modern

policing. It allows the police to react quickly to suspicious

behavior, often preventing crimes before they are committed.

Terry v. Ohio, 392 U.S. 1 (1968) recognizes the importance of

Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as

listed on the cover, and not by counsel for any party. No outside contributions

were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

this technique by subjecting stops to the deferential reasonable

suspicion standard. The decision of the Illinois Supreme Court

that flight from uniformed police does not justify a Terry stop

is contrary to this Court’s deference to police on the street. The

Illinois decision, if upheld, will cloud the Terry standard and

straitjacket police confronted with clearly suspicious conduct.

This is contrary to the interests of justice and society that CJLF

was formed to advance.

SUMMARY OF FACTS AND CASE

On September 9, 1995, Officer Timothy Nolan and his

partner were part of a “caravan” of Chicago police cars investi-

gating narcotics sales around West Van Buren Street. People

v. Wardlow, 701 N. E. 2d 484, 485 (Ill. 1998). The caravan

consisted of eight officers in four cars, with Nolan’s car in he

rear. /bid. At the suppression hearing, Nolan testified that he

wore his uniform that day, but he could not recall whether his

car was marked. /bid.

Nolan, the driver, observed defendant in front of 4035 West

Van Buren. /bid. Defendant “looked in the officers’ direction

and then fled.” Nolan drove south toward Congress Avenue,

observing defendant, who had fled south through a gangway

and an alley. Defendant was carrying a white opaque bag under

his arm. He was cornered near 4036 West Congress when he

ran right towards Officer Nolan’s car. /bid.

Officer Nolan stopped defendant and immediately con-

ducted a pat-down search. Since he could not see what was

inside the bag, Officer Nolan squeezed it “and felt a very heavy,

hard object ‘that had a similar shape to a revolver or a gun.” ”

Ibid. Believing this to be a weapon, Officer Nolan opened the

bag, finding a .38 caliber pistol containing five live rounds.

Nolan then arrested defendant. /bid. Although there is no

direct evidence of the exact time of the encounter, the arrest

report was filed at 12:15 p.m. See id., at 485, n. 1.

SS

Defendant was convicted of unlawful use of a weapon by a

felon. /d., at 484. The Illinois Court of Appeal reversed the

conviction, finding the handgun was the fruit of an improper

stop. /bid. The Illinois Supreme Court affirmed, holding that

defendant’s flight did not justify a stop under Terry v. Ohio,

392 U.S. 1 (1968). Wardlow, 701 N. E. 2d, at 487, 489.

SUMMARY OF ARGUMENT

The present case turns on an appropriate understanding of

Terry v. Ohio, 392 U. S. 1 (1968). Terry is a pragmatic

decision that helps fit Fourth Amendment principles to modern

times. It balances an acute awareness of the investigative needs

of police and society with the legitimate need to be free from

police harassment.

Although this Court has never determined whether flight

from the police justifies a Terry stop, its interpretation of Terry

shows a pattern of deference to limited police intrusions so long

as some level of objective suspicion exists. Terry and its

progeny do not affix some mathematically precise level of

suspicion for a proper stop. Instead, reasonable suspicion

requires no more than a minimal, objective suspicion of

criminality. That suspicion can be supported by evidence that

has both innocent and suspicious explanations. So long as the

level of suspicion is beyond a “mere curiosity, rumor, or

hunch,” Jerry is satisfied.

Unprovoked flight from a police officer justifies a Terry

stop. Flight supports reasonable suspicion because of the close

relationship between flight from authority and a guilty mind.

This Court has found flight as evidence of a guilty mind in a

variety of contexts, finding it to strongly support probable

cause, and admissible at trial as evidence supporting an infer-

ence of guilt. This position finds support from a wide variety

of other sources, including respected judges and legal commen-

tators. Fleeing from a visible police presence thus raises the

type of question which Terry allows officers to investigate.

The right to avoid contact with the police does not negate

reasonable suspicion. The fact that flight has innocent, as well

aS suspicious, explanations does not alleviate the reasonable

suspicion; Jerry can be satisfied by ambiguously suspicious

conduct. There are many innocent ways to avoid contact with

the police. By fleeing, defendant indicated to police officers

that he had a guilty mind, which is worthy of investigation. Had

he simply walked away or refused to talk to the officers, there

would have been no grounds for a Jerry stop.

Unprovoked flight from police not only justifies the stop in

the present case, but also supports a Jerry stop in any circum-

stance. Flight from police is suspicious without regard to time

or place. As flight is suspicious under virtually any conceivable

context, flight alone should support reasonable suspicion.

Although this Court usually avoids promulgating bright-line

rules in Fourth Amendment cases, it will do so under the

appropriate circumstances. The relationship between flight

from police and Terry is this type of situation. Because ft:ght

will justify a Terry stop under almost any set of facts, little will

be lost and much will be gained by a rule recognizing flight's

importance in all situations.

ARGUMENT

The investigative stop and frisk sanctioned by Terry v.

Ohio, 392 U. S. 1 (1968) embodies the reasonableness that

forms the core of the Fourth Amendment. Police should not

have to wait for probable cause before every intrusion into

privacy. Some street encounters warrant some intrusion short

of arrest and search. By allowing officers to investigate merely

suspicious behavior, as opposed to the more clearly illicit

behavior needed to support probable cause, Jerry stops can

prevent crimes before they are completed. This was the case in

Terry, which involved several armed individuals casing a store

window for what might have been an armed robbery. See id.,

at 5-6. Terry accomplishes this while still protecting privacy

through its reasonable suspicion standard and the limited

intrusion it sanctions. As one of our most prominent state court

judges noted, anticipating Terry, the stop and frisk is a worthy

compromise between public safety and individual rights.

“It might be possible . . . to lessen the risk of arrest without

probable cause by giving the police clear authorization to

stop persons for restrained questioning whenever there were

circumstances sufficient to warrant it, even though not

tantamount to probable cause for arrest. Such a minor

interference with personal liberty would touch the right to

privacy only to serve it well.” Traynor, Mapp v. Ohio at

Large in the Fifty States, 1962 Duke L. J. 319, 333-334.

As a proper analysis of the Jerry standard and its relation-

ship to flight from uniformed police will show, the Illinois

Supreme Court upset Terry’s compromise by suppressing the

evidence in this case.

I. The reasonable suspicion standard is primarily

intended to prevent harassing stops based upon no more

than curiosity, rumor, or hunch.

In deciding whether flight from a visible police presence

justifies a stop under Terry v. Ohio, 392 U. S. 1 (1968), this

case must be grounded in a thorough understanding of Terry’s

reasonable suspicion standard. Unfortunately, this term is an

“elusive concept” that by itself does not guide courts, counsel,

or officers through the “myriad factual situations” found in

street encounters between officers and citizens. See United

States v. Cortez, 449 U.S. 411, 417 (1981). A careful reading

of Terry and its progeny reveals an underlying policy of

accommodating society’s critical interest in investigation while

limiting police harassment. Proper analysis of any set of facts

under the reasonable suspicion requirement will adhere to these

principles.

A. The Terry Standard.

When this Court applied the exclusionary rule to the states

in Mapp v. Ohio, 367 U. S. 643 (1961), the power of the

exclusionary rule was dramatically increased, influencing

virtually every criminal prosecution in this country. Expanding

the exclusionary rule put this Court’s Fourth Amendment

jurisprudence under increasing strain. An amendment that arose

from the abuses of English customs officials, see 1 W. LaFave,

Search and Seizure § 1.1(a), p. 4 (3d ed. 1996), now had to deal

with the core functions of modern American police work.

These difficulties were compounded by the text of the Fourth

Amendment,’ which “has ‘both the virtue of brevity and the

vice of ambiguity,’ ” id., at 5, making it difficult to interpret.

The many problems of dealing with the Fourth Amendment in

modern society eventually found their way to this Court.

Terry is a pragmatic decision that helped fit Fourth Amend-

ment jurisprudence to modern times. Jerry involved one of the

most common and important parts of police work, a “confron-

tation on the street between the citizen and the policeman

investigating suspicious circumstances.” 392 U. S., at 4.

Cleveland Police Detective Martin McFadden, a veteran of 39

years of police work, observed Terry and two other people

engaging in what appeared to McFadden to be * ‘casing a job,

a stick-up.” ” /d., at 6. Believirg this was a time for action,

Officer McFadden approached the men, identified himself as a

police officer, and asked them for their names. After receiving

an inaudible response, Officer McFadden grabbed Terry, spun

him around, and patted him down. He eventually found a pistol

on Terry’s person. /d., at 6-7.

2. “The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U. S. Const. Amdt. 4.

This Court found that Officer McFadden’s investigation did

not violate the Fourth Amendment. While defendant had

Fourth Amendment interests in his stop and search, id., at 9, the

Terry Court understood that police had a great stake in protect-

ing the legality of the “stop and frisk.” /d., at 10. The interests

of the public in successful law enforcement, when combined

with the relatively less intrusive nature of a stop and frisk,

convinced the Jerry Court to accept the legitimacy of the stop

and frisk.

The proponents of the stop and frisk “argued that in dealing

with the rapidly unfolding and often dangerous situations on

city streets the police are in need of an escalating set of flexible

responses, graduated in relation to the amount of information

they possess.” /d., at 10. According to its proponents, there is

a difference between a “stop” and a “seizure” and a “frisk” and

a “search.” These differences would allow an officer to make

the less intrusive stop and frisk with less than probable cause.

See ibid. The opponents of the stop and frisk would apply one

standard to all police activities. “The heart of the Fourth

Amendment, the argument runs, is a severe requirement of

specific justification for any intrusion upon protected personal

security, coupled with a highly developed system of judicial

controls to enforce upon the agents of the State the commands

of the Constitution.” /d., at 11. They urged that approval of the

stop and frisk “would constitute an abdication of judicial

control over, and indeed an encouragement of, substantial

interference with liberty and personal security by police officers

rere Fi

The Jerry Court approached this case “mindful of the limi-

tations of the judicial function in controlling the myriad daily

situations in which policemen and citizens confront each other

on the street.” /bid. It also recognized that the thrust of the

exclusionary rule is deterring unlawful conduct by the police.

Ibid. Because there would be times when the exclusion of

evidence would not deter police conduct, courts had to be

sensitive to when their sanctions against the police would be

futile. See id., at 14. Given the great diversity of street

encounters between police and citizens, see id., at 13, “a rigid

and unthinking application of the exclusionary rule, in futile

protest against practices which it can never be used effectively

to control, may exact a high toll in human injury and frustration

of efforts to prevent crime.” /d., at 15.

The practical bent of the Terry Court extended to its analy-

sis of the particular facts in the case. It recognized that it would

be impractical to hold the stop and frisk to the requirements of

the Warrant Clause, as it involved “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 the warrant procedure.” /d.,

at 20. Instead, the Court simply looked to the reasonableness of

Officer McFadden’s actions. Using the test found in Camara

v. Municipal Court, 387 U. S. 523 (1967), it balanced the need

for the stop and frisk against the invasion of privacy entailed by

these acts. Terry, supra, 392 U.S., at 21.

The assessment of the government interests shows the

central theme of this opinion. The most important justitication

for Officer McFadden’s decision to approach defendant and his

companions was that this decision was part of the core of police

work—"effective crime prevention and detection.” /d., at 22.

If Officer McFadden was to do his job properly, he had to be

allowed to stop and investigate individuals acting in a manner

such as Terry. “It would have been poor police work indeed for

an officer of 30 years experience in the detection of thievery

from stores in this same neighborhood to have failed to investi-

gate this behavior further.” /d., at 23. The need to let police do

their jobs is also reflected in the Terry Court’s recognition of

the police officer’s need to make sudden decisions. See id., at

20. Terry recognizes that the exclusionary rule “cannot

properly be invoked to exclude the products of legitimate police

investigative techniques on the ground that much conduct which

is closely similar involves unwarranted intrusions upon consti-

tutional protections.” /d., at 13. Finally, the 7Zerry Court

justified the frisk of defendant for practical reasons. The Court

recognized that police work can be dangerous, and there are

many times when an officer must be allowed to pat down a

suspect so that he may do his job safely. See id., at 23-24.

The Jerry Court did not leave police officers with unfet-

tered discretion. To justify “the particular intrusion the police

officer must be able to point to specific and articulable facts

which, taken together with rational inferences from those facts,

reasonably warrant that intrusion.” /d., at 21. The Court sought

to prevent officers from using the stop and frisk as a license to

harass or otherwise annoy “outside the legitimate investigative

sphere.” /d., at 15. While the exclusionary rule could not

prevent “|t}he wholesale harassment by certain elements of the

police community of certain minority groups,” id., at 14, Terry

did not give officers license to harass. “Under our decision,

courts still retain their traditional responsibility to guard against

police conduct which is overbearing or harassing, or which

trenches upon personal security without the objective eviden-

tiary justification which the Constitution requires.” /d., at 15.

So long as an officer has some “specific and articulable facts”

supporting the stop, see id., at 21, the threat of harassment is

sufficiently abated to satisfy the Fourth Amendment.

Given the balance of government and citizen interests, these

facts and inferences did not have to constitute probable cause,

but only had to “reasonably warrant that intrusion.” /bid. This

is not an evidentiary Everest. “Anything less would invite

intrusions upon constitutionally guaranteed rights based on

nothing more substantial than inarticulate hunches ....” Id.,

at 22 (emphasis added). Thus a balance is struck between two

absolutes. The Jerry Court avoids treating street encounters

like searches of dwellings. To do so would stifle police activity

on the streets through the overly formal warrant procedure. See

id., at 20. “Instead, the conduct involved in this case must be

tested by the Fourth Amendment’s general proscription against

unreasonable searches and seizures.” /bid. At the same time,

the decision does not give police unfettered discretion to stop

people on the streets. By requiring the officer to have specific

justification for the stop and frisk, the Terry Court brings these

encounters into the mainstream of Fourth Amendment law, see

10

id., at 21, n. 18, while recognizing the many practical difficul-

ties encountered by police operating on the streets.

B. Terry's Progeny.

While this Court has never determined whether flight from

police by itself justifies a Terry stop, its interpretations of Terry

show a pattern of deference to limited police intrusions so long

as some objective ground for suspicion exists. If the justifica-

tion given for the intrusion acts to limit police discretion, this

Court has deferred to the needs of police to respond to immi-

nent criminal activity without the fear of judicial sec-

ond-guessing.

1. Supporting the officer.

Since Jerry, this Court has steadily supported the authority

of police officers to conduct various stops and frisks without the

threat of undue judicial interference. One notable example is

found in United States v. Cortez, 449 U.S. 411 (1981). Cortez

involved an investigative stop of a vehicle made after Border

Patrol officers deduced, by observing various footprints at a

border crossing, that groups of illegal aliens were being led

across the border on foot and then transported further via

vehicle. The officers used this deduction and their knowledge

that certain types of vehicles are used to carry illegal aliens to

stop defendant’s vehicle. After conducting an immigration

check, agents found six illegal aliens hiding in defendant's

camper. /d., at 413-416.

The Cortez Court recognized that under Terry and other

cases, this investigatory stop “must be justified by some objec-

tive manifestation that the person stopped is, or is about to be,

engaged in criminal activity.” /d., at 417. There were two

criteria for making this decision. “First, the assessment must be

based upon all of the circumstances. The analysis proceeds

with various objective observations, information from police

reports, if such are available, and consideration of the modes or

patterns of operation of certain kinds of lawbreakers.” /d., at

418. These data then allow officers to make inferences or

deductions that an average person might be incapable of

reaching. /hid. “The second element . . . is the concept that the

process just described must raise a suspicion that the particular

individual being stopped is engaged in wrongdoing.” /bid.

The two requirements do not straitjacket the police. Behind

the Cortez decision was the realization that this “process does

not deal with hard certainties, but with probabilities.” /bid.

The officers’ privilege to draw conclusions from a certain set of

circumstances simply reflects what had long been common

practice. “Long before the law of probabilities was articulated

as such, practical people formulated certain common-sense

conclusions about human behavior; jurors as factfinders are

permitted to do the same — and so are law enforcement offi-

cers.” Jbid. Thus, the evidence collected and conclusions

drawn “must be seen and weighed not in terms of library

analysis by scholars, but as understood by those versed in the

field of law enforcement.” /hid.

When viewed from this perspective, the action of the Border

Patrol became readily acceptable. The Cortez Court reviewed

each of the Border Patrol’s observations and deductions and

found the whole logical chain flawless. /d., at 419-421. “We

see here the kind of police work often suggested by judges and

scholars as examples of appropriate and reasonable means of

law enforcement.” /d., at 419.

The need for police to be able to do their jobs is recognized

in other post-7erry cases. In Adams v. Williams, 407 U.S. 143

(1972), Police Sergeant John Connally was driving alone on

patrol duty when a person known to the sergeant approached the

car and told him that a person seated in a nearby car was

carrying narcotics and had a gun at his waist. /d., at 144-145.

After calling for assistance, Sergeant Connally approached the

vehicle and asked the occupant to leave the car. When the

occupant rolled down the window, Sergeant Connally reached

into the car to where he thought a gun would be, and took a

loaded revolver from defendant's waistband. /d., at 145. In

12

upholding this stop and frisk, the Adams Court emphasized the

need to allow police to do their jobs.

“The Fourth Amendment does not require a policeman

who lacks the precise level of information necessary for

probable cause to arrest to simply shrug his shoulders and

allow a crime to occur or a criminal to escape. On the

contrary, Terry recognizes that it may be the essence of

good police work to adopt an intermediate response.” Ibid.

(emphasis added).

Part of an officer’s job is ensuring his own safety while

conducting his duties. Thus, an officer making a Terry stop

“should not be denied the opportunity to protect himself from

attack by a hostile suspect.” /d., at 146. Therefore, as Sergeant

Connally properly responded to an informant’s tip that the

suspect was armed, he could search defendant for the weapon

he suspected defendant of possessing. /d., at 147-148.

Terry's basis in common sense has allowed this Court to

apply it to situations beyond those which first brought about the

ruling. Terry initially dealt with street encounters where a

police officer believed a crime was about to take place. Terry,

supra, 392 U. S., at 30. Since then, Terry has been applied to

Border Patrol checkpoints, United States v. Martinez-Fuerte,

428 U. S. 543, 566-567 (1976), automobile stops, Cortez,

supra, 449 U. S., at 417, and “sniff tests” of airport luggage.

United States v. Place, 462 U. S. 696, 702 (1983). Terry has

been expanded to include investigation of crimes that have

already been completed. United States v. Hensley, 469 U. S.

221, 229 (1985). The post-7erry decisions have also recog-

nized that Terry is not just a method for allowing a law enforce-

ment officer to protect himself. A general interest in law

enforcement can be enough to justify a Terry stop. See Place,

462 U. S., at 703-704. The many different uses of Terry

reiterates the practical essence of this decision.

13

2. Appropriate limits.

Terry does not, however, present police officials with a

blank check. An officer can only stop a person after developing

an articulable suspicion supported by facts that the person may

be involved in some suspicious activity. See Terry, supra, 392

U. S., at 21. This is intended to prevent an officer from making

Terry stops with unfettered discretion.

Time and again the cases in which this Court has invalidated

Terry stops turned on whether an officer’s justification for the

stop sufficiently limited his discretion. Thus, in Brown v.

Texas, 443 U.S. 47 (1979), this Court castigated the police for

making a stop for the sole reason that the suspect looked sus-

picious. /d., at 52. The primary reason behind the reversal was

to limit the discretion of police officers. “A central concern in

balancing these competing considerations in a variety of settings

has been to assure that an individual’s reasonable expectation

of privacy is not subject to arbitrary invasions solely at the

unfettered discretion of the _ in the field.” Id., at 51

(emphasis added).

Another example of conduct exceeding the limits of Terry

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

(1975). Here, Border Patrol agents operating a roving patrol for

illegal immigrants stopped a car near the Mexican border with

no justification except that the vehicle’s occupants appeared to

be of Mexican descent. /d., at 875. The Court rejected this as

the sole justification for a Terry stop, as it placed too much

discretion in the hands of Border Patrol officials.

“In the context of border area stops, the reasonableness

requirement of the Fourth Amendment demands something

more than the broad and unlimited discretion sought by the

Government.... To approve roving-patrol stops of all

vehicles in the border area, without any suspicion that a

particular vehicle is carrying illegal immigrants, would

subject the residents of these and other areas to potentially

unlimited interference with their use of the highways, sole/y

14

at the discretion of Border Patrol officers.” Id., at 882

(emphasis added).

Although it is clear that Terry's reasonable suspicion

standard is intended to prevent the harassment associated with

unfettered discretion, the exact limit the standard places on

police is less clear. It is not a “ ‘finely-tuned standard{},’

comparable to the standards of proof beyond a reasonable doubt

or of proof by a preponderance of the evidence.” Ornelas v.

United States, 517 U. S. 690, 696 (1996) (quoting J/linois v.

Gates, 462 U. S. 213, 235 (1983)). Reasonable suspicion and

probable cause are instead “fluid concepts that take their

substantive content from the particular contexts in which the

standards are being assessed.” /hid.

3. Innocence and suspicion.

This Court has established some guidelines broader than the

particular facts of the case. The information supporting

reasonable suspicion need not solely point to the suspect's

criminality; evidence that has both illicit and innocent explana-

tions may support reasonable suspicion. United States v.

Sokolow, 490 U.S. 1, 8-10 (1989) (paying for expensive airline

tickets with cash, combined with other factors).

The type of proof demanded by the reasonable suspicion

standard allows it to be supported by such ambiguous evidence.

Instead of some quantum of proof such as the reasonable doubt

or preponderance standards, the reasonable suspicion standard

“requires some ‘minimal level of objective justification’ for

making the stop.” /d., at 7 (emphasis added) (quoting /NS v.

Delgado, 466 U.S. 210, 217 (1984)). “That level of suspicion

that is considerably less than proof of wrongdoing by a prepon-

derance of the evidence.” /bid.

Rather than the level of proof, reasonable suspicion is

concerned with finding some specific objective fact or facts

supporting an inference of criminality. Objectivity is the

hallmark of the Fourth Amendment, a fact noted by the Jerry

Court. See Terry, supra, 392 U. S., at 21, n. 18. By being

15

a a ee ial crieninality,

reasonable suspicion helps to prevent the harassment that was

the central concern of the Terry Court, while its “minimal” level

of suspicion allows police to investigate suspicious activity

without fear of undue judicial interference.

In re Tony C., 21 Cal. 3d 888, 582 P. 2d 957 (1978)

demonstrates this point. The California Supreme Court first

provides an excellent summary of what Terry requires:

“(T]he courts have concluded that in order to justify an

investigative stop or detention the circumstances known or

apparent to the officer must include specific and articulable

facts « wsing him to suspect that (1) some activity relating

to crime has taken place or is occurring or about to occur,

and (2) the person he intends to stop or detain is involved in

that activity. Not only must he subjectively entertain such

a suspicion, but it must be objectively reasonable for him to

do so: the facts must be such as would cause any reason-

able police officer in a like position, drawing when appro-

priate on his training and experience [citation], to suspect

the same criminal activity and the same involvement by the

person in question.” /d., at 893, 582 P. 2d, at 959 (citation

and footnote omitted).

This decision then gives further substance to reasonable

suspicion when it rejects the notion that only unambiguously

suspicious behavior supports a Jerry stop. “Indeed, the

principal function of [the officer’s] investigation is to resolve

that very ambiguity and establish whether the activity is in fact

legal or illegal ... .” /d., at 894, 585 P. 2d, at 960. This

reinforces Jerry's role as an investigative tool. A decision so

closely tied to the core of police work requires a deferential

standard. That standard is defined by what Jerry seeks to

prevent.

“The citizen’s undoubted interest in freedom from abuse of

this procedure is protected—so far as it is within the law’s

power to do so—by the correlative rule that no stop or

detention is permissible when the circumstances are not

16

reasonably ‘consistent with criminal activity’ and the

investigation is therefore based on mere curiosity, rumor, or

hunch.” /bid.

Therefore, reasonable suspicion is satisfied by no more

evidence than that necessary to raise the officer's suspicion

beyond “mere curiosity, rumor, or hunch.” What matters is not

the level of suspicion, but the existence of some articulable fact

and an objectively reasonable, but minimal, inference of

possible criminality. So long as there is some suspicion beyond

the level of a hunch or rumor then the threat of harassment is

averted, and Jerry is satisfied.

Terry was decided with the recognition that the police

encounter many difficult situations when working in the field.

The needs of the police and the rights of individuals are bal-

anced by allowing relatively unintrusive stops and frisks so long

as some legitimate law enforcement goal justifies the intrusion.

The only requirement is that the officer have some reasonable

suspicion that the suspect is engaged in some suspicious activi-

ty. Terry is a practical case and it should be used in a practical

manner. So long as the officer’s discretion is sufficiently limit-

ed and the purpose of his actions are properly related to legit-

imate law enforcement goals, courts should not second-guess

decisions made by officers in the field.

Il. Unprevoked flight from a police officer

justifies a Terry stop.

This case represents a common problem. An individual

spots a police officer and flees. The officer must decide

whether to pursue and find out the reason behind the flight, or

allow the individual to escape. Before examining flight's

justification for a Terry stop, it is important to understand what

is not present in this case. Defendant did not flee from an

undercover officer. Although it is uncertain whether Officer

Nolan’s car was marked, he was in uniform, and defendant fled

after looking in his direction. People v. Wardlow, 701 N. E. 2d

17

484, 485 (Ill. 1998). Since the arrest report was filed at 12:15

p.m. it is reasonable to conclude that this encounter took place

during daylight, reinforcing the conclusion that defendant's

flight was caused by the presence of the police.

It is equally important to remember that defendant's

decision to flee was his own. If an officer tries to scare some-

one into fleeing, the flight is no longer suspicious, and the

attempt to provoke the flight is unconstitutional. See Hobson,

Flight and Terry: Providing the Necessary Bright Line, 3

Md. J. Contemp. Legal Issues 119, 150 (1992).

Defendant's unprovoked flight from a known police officer

provided reasonable suspicion for his Terry stop. As this type

of flight is inherently suspicious regardless of other factual

contexts, it should always satisfy Terry's reasonable suspicion

standard.

A. Flight and Suspicion.

Flight from a police officer justifies a Jerry stop

because of the close relationship between flight from authority

and a guilty mind. In California v. Hodari D., 499 U.S. 621,

623 (1991), this Court confronted a Terry stop involving flight.

Because the argument that the stop was justified had not been

preserved in the court below, the Hodari Court did not reach

this issue. See id., at 623, n. 1. Even so, the Hodari Court

understood flight’s potential relevance to a Terry stop. “That it

would be unreasonable to stop, for brief inquiry, young men

who scatter in panic upon the mere sighting of the police is not

self-evident, and arguably contradicts proverbial common sense.

See Proverbs 28:1 (“The wicked flee when no man pursueth’).”

Ibid.

This Court has long recognized that flight is evidence of a

guilty mind. In Sibron v. New York, 392 U.S. 40 (1968), an

off-duty police officer surprised two men who were acting

furtively in his apartment building's hallway. /d., at 48. Upon

seeing him, they fled, and he pursued. He caught, arrested, and

searched one of the suspects. /d., at 48-49.

The search was upheld as incident to a lawful arrest. /d., at

66. Defendant's flight was a major factor in the probable cause

determination. /d., at 66-67. While the Sibron Court relied on

several factors in addition to flight to justify the arrest, this does

not mean that flight alone cannot justify a Terry stop. The

Sibron Court used these factors to find probable cause to make

an arrest. /bid. A Terry stop is less intrusive than an arrest,

however, and thus requires a smaller quantum of evidence than

probable cause. See Terry v. Ohio, 392 U.S. 1, 26 (1968).

Given the different requirements for an arrest and Jerry stop, it

_would not be inconsistent with Sibron to allow flight to justify

a Terry stop. In Sibron, flight was one of the several factors

that combined to give overwhelming probable cause to arrest.

It was clearly among the most important factors, being one of

the two “strong indicia of mens rea” cited by the Sibron Court,

see 392 U. S., at 66, demonstrating the importance of this type

of evidence.’ Sibron’s use of flight is consistent with the

approach of Learned Hand, who found flight strongly support-

ive of probable cause to arrest in United States v. Heitner, 149

F. 2d 105, 106-107 (CA2 1945). As Judge Hand noted,

regardless of any criticism leveled at flight, “it has at no time

been doubted that flight is a circumstance from which a court or

3. This Court's dismissal of flight as justification for probable cause in Wong Sun

v. United States, 371 U.S. 471, 483-484, n. 10 (1963) must be read in light of

Hodari D and flight's benign treatment in Hodari D. and Sibron. As Wong

Sun was a probable cause case, see id., at 479, its rejection of flight alone ts not

controlling in this case.

The facts surrounding defendant's flight in Wong Sun further distinguish it from

the present case. Wong Sun's actual holding was based on the officer's failure

to identify himself with the requisite clarity. The narcotics agent “affirmatively

misrepresented his mission at the outset... [a]nd before [the suspect] fed, the

officer never adequately dispelled the misimpression engendered by his own

ruse.” /d., at 482-483. Therefore, the flight expressed no more than “a natural

desire to repel an apparently unauthorized intrusion.” /d., at 483. This does not

govern the unprovoked flight from a uniformed > ‘icer found in the present

case, see supra, at 16, and any general condemnation of flight in footnote 10 of

Wong Sun is pure dictum.

19

officer may infer what everyone in daily life inevitably would

infer.” /bid.

Another example of flight’s probative value is the use of

defendant's flight from the scene of the crime or the jurisdiction

against him at trial. A court may instruct the jury that it may

consider defendant’s flight against him unless he provides an

explanation because “the law is entirely well settled that the

flight of the accused is competent evidence against him as

having a tendency to establish his guilt.” Allen v. United States.

164 U. S. 492, 499 (1896). While flight from a crime scene

does not create a presumption of guilt, and can have innocent

explanations, see A/berty v. United States, 162 U. 8. 499, 510

(1896),* this fact does not disqualify flight alone as a basis for

reasonable suspicion. A/berty disapproved an instruction on

flight that was “tantamount to saying to the jury that flight

created a legal presumption of guilt so strong and so conclusive

that it was the duty of the jury to act on-it as axiomatic truth

...” Ibid. While disapproving this presumption, A/berty

expressly allowed the jury “to take into consideration the

defendant's flight from the country as evidence bearing upon

the question of his guilt... .” /d., atS10-511. The problem

was that the trial court gave flight a presumptive strength it did

not warrant. “The criticism to be made upon this charge is, that

it lays too much stress upon the fact of flight, and allows the

jury to infer that this fact alone is sufficient fo create a pre-

sumption of guilt.” Id., at 511 (emphasis added). A/berty’s

treatment of flight is consistent with flight supporting reason-

able suspicion. Although in Alberty flight could not support a

4. The presumption of guilt from flight condemned in A/berty was probably a

holdover from a common law provision that allowed the accused's goods and

chattels to be forfeited if the jury found that he had fled because “the very flight

is an offense, carrying with it a strong presumption of guilt, and is at least an

endeavor to clude and stifle the course of justice prescribed by the law.”

4 W. Blackstone, Commentaries 380 (Ist ed. 1769). The harshness of this

penalty kept it from being enforced. /hid. It is believed that the rule was

designed to deter flight from the jurisdiction instead of being a rule of evidence.

See 2 J. Wigmore, Evidence § 276, p. 122 (Chadbourne rev. 1979).

20

presumption of guilt, it is evidence of guilt. Similarly, although

flight from police alone does not provide enough evidence to

amount to probable cause, it will satisfy the lower standard of

reasonable suspicion. Jerry does not require proof of guilt; the

inference of guilt allowed in Alberty and Allen is more than

enough suspicion for Jerry.

By simply dismissing flight as a justification for a Terry

stop, the Illinois Supreme Court avoids the balancing approach

that has been taken by this Court in Jerry and its progeny. The

Illinois high court therefore avoids recognizing the great burden

that its decision places on the police officer in the field. An

officer’s decision to initiate a Terry stop “must be judged from

the perspective of a reasonable officer on the scene, rather than

with the 20/20 vision of hindsight.” See Graham v. Connor,

490 U. S. 386, 396 (1989) (use of force at Terry stop) (citing

Terry, supra, 392 U.S., at 20-22). The officers in the present

case drove by a young man who fled as the officers’ car

approached. The officers were then presented with two choices:

pursue or allow him to flee. In deciding to pursue, the officers

made a logical decision consistent with police practices that

served a crucial government interest.

Suspicions are naturally aroused when someone flees from

your approach. The suspicion will be all the greater when the

person fled from is a police officer. A primary function of the

police officer is investigation. See Miranda v. Arizona, 384

U. S. 436, 477 (1966). The investigative powers of the police

initiating a Jerry stop can be aimed at past, future, or current

criminal conduct. See United States v. Hensley, 469 U.S. 221,

227-228 (1985). As flight is indicative of a guilty mind, it

would be bad police practice to not investigate why the youths

fled. Cf. Terry, supra, 392 U. S., at 23. “A person who

manifests concern for the presence of police . .. who flees at the

sight of an officer will commonly be detained and questioned.”

L. Tiffany, D. McIntyre, & D. Rotenberg, Detection of Crime

21

_ 32 (1967). Terry was never intended to punish officers for

good, aggressive investigation. See United States v. Cortez,

449 U.S. 411, 419 (1981).

B. Flight vs. Walking Away.

Balanced against the interest of police officers in doing

good work is defendant's interest in not being pursued and

stopped. A person who has done nothing to arouse suspicion

towards himself has a right not to have contact with or be

questioned by the police. Therefore, if defendant wanted to

avoid contact with the police and the police had no articulable

suspicion of criminal conduct on his part, then the police must

let him go. This was the basis of the Illinois Supreme Court's

decision to invalidate the Terry stop. See People v. Wardlow,

701 N. E. 2d 484, 486-487 (1998) (quoting State v. Hicks, 241

Neb. 357, 363-364, 488 N. W. 2d 359, 363-364 (1992)). The

Illinois Supreme Court apparently saw no difference between

walking away and running away.

The problem with this decision is that it fails to take into

account that there are many different ways of ending an en-

counter with police. A simple straightforward denial of a police

request will not provide the officer with cause for a Jerry stop.

Thus a simple refusal to identify oneself cannot justify a frisk.

See Brown v. Texas, 443 U.S. 47, 52-53 (1979). Similarly, a

person is entitled to walk away from a police officer when

asked to stop and respond to questioning. See Smith v. United

States, 558 A. 2d 312, 316-317 (D. C. App. 1989) (en banc)

(walking at “fast pace” but not “bolting” or “running” does not

justify stop; running cases distinguished). If approached and

questioned, a person may decline to answer and simply walk

away. Florida vy. Royer, 460 U.S. 491, 497-498 (1983).

Defendant's actions, however, were not the kind normally

associated with innocence. He did not simply assert his right to

5. This publication is the primary authority on police procedure in Jerry. See

Terry, 392 U_S., at 13-14, nn. 9-10

22

avoid contact; he ran when he saw the officers’ car. Wardlow,

supra, 701 N. E. 2d, at 485. This indicated to the police that

respondent had a guilty mind, which is worthy of investigation.

Had defendant simply walked away, see Smith, supra, or had he

simply held his ground and refused to answer any questions

posed to him by the officers, see Brown, supra, there would

have been no grounds for a Jerry stop.

In People v. Souza, 9 Cal. 4th 224, 234-235, 885 P. 2d 982,

988 (1994), the California Supreme Court directly addressed the

notion that the right to walk away somehow negated the

suspicion that would otherwise arise from flight:

“The United States Supreme Court’s observation in

Florida v. Royer, supra, 460 U. S. 491, 498 [75 L. Ed. 2d -

229, 236-237], that a person approached by police for

questioning may decline to answer the questions and ‘may

go on his way,’ does not imply that the manner in which a

person avoids police contact cannot be considered by police

officers in the field or by courts assessing reasonable cause

for briefly detaining the person. There is an appreciable

difference between declining to answer a police officer's

questions during a street encounter and fleeing at the first

sight of a uniformed police officer. Because the latter

shows not only unwillingness to partake in questioning but

also unwillingness to be observed and possibly identified,

it is a much stronger indicator of consciousness of guilt.”

(Emphasis in original).

As it was defendant’s own decision to flee that imparted this

information to the officers, he should not be allowed to use any

right to avoid contact to negate their reasonable suspicion.® The

Illinois Supreme Court's reasoning, if upheld, makes it too

difficult for an officer to find out why someone flees from his

presence. “The fact of flight is of itself significant; it becomes

6. The mght to tender payment in Federal Reserve Notes, see 31 U.S.C. $5103,

does not negate the suspicion of buying airline tickets with a wad of $20 bills.

See | nited States v. Sokolow, 490 U.S. 1, 8-9 (1989).

23

most significant when after all no explanation is forthcoming.”

2 J. Wigmore, Evidence § 276, p. 129 (Chadbourne rev. 1979).

Officers should be able to find the explanation for the individ-

ual’s flight. 7erry is meant to give the officer the opportunity

to determine if ambiguous behavior betrays criminal intent. See

In re Tony C., 21 Cal. 3d 888, 894, 582 P. 2d 957, 960 (1978).

The reasonable suspicion requirement was affixed to Terry

to limit police discretion.’ Basing the stop on something more

than a rumor or hunch limits the opportunity to harass civilians.

See supra at 15-16. Flight provides exactly the type of objec-

tive basis for suspicion that properly limits the discretion of the

officer in the field. Flight is both self-evident and articulable.

It does not conjure up some vague and subjective standard. Cf.

Brown v. Texas, supra, 443 U. S., at 49 (suspect “looked

suspicious”). Although whether the suspect fled from police

officers is occasionally at issue, flight is evident in the over-

whelming majority of cases. See Hobson, supra, 3

Md. J. Contemp. Legal Issues, at 136-137, n. 138. It does not

threaten arbitrary application, such as an officer’s decision to

pull a motorist over because he had nothing better to do. Cf.

Delaware v. Prouse, 440 U. S. 648, 650-651 (1979). Flight is

not indiscriminately applicable to a large number of innocent

people, and it is not a “suspect classification.” Cf. United

States v. Brignoni-Ponce, 422 U. S. 873, 885-886 (1975)

(Mexican ancestry).

In the heat of the moment, Officers Nolan and Harvey

decided to find out what defendant was up to. In so doing, the

officers did their jobs well. They were able to stop defendant,

and they determined that he was engaging in criminal acts

without arbitrarily infringing upon any of his rights. Good

police work such as this deserves commendation, not condem-

nation.

7. See Part | B 2, supra, at 13-14.

24

C. A Single Rule.

Unprovoked flight from known police not only justifies the

stop in the present case, but also supports a Terry stop in any

circumstance. Although this Court is wary of establishing

bright-line rules in Fourth Amendment cases, see Ohio v.

Robinette, 519 U.S. 33, 39 (1996), this Court will draw lines to

guide officers and the courts through the Fourth Amendment

when appropriate. See Maryland v. Wilson, 519 U. S. 408, 413,

n. | (1997). Although the factual context of defendant's flight

in the present case strengthens reasonable suspicion, flight from

a uniformed police officer will justify a Terry stop in almost any

conceivable circumstance. This Court should recognize such

flight’s widespread strength and relevance, and establish that it

always justifies a Terry stop.

Terry stops are evaluated under the “totality of circum-

stances” surrounding the stop and frisk. United States v.

Cortez, supra, 449 U. S., at 417. In the present case, this

involves placing defendant's flight in the context of its time and

place, during the daytime, and in a high-crime area. See supra

at 2. Both circumstances can give relatively innocent facts the

proper context to support a reasonable suspicion finding. While

the frequency of crime in an area does not alone justify a

detention, see Souza, supra, 9 Cal. 4th, at 240-241, 885 P. 2d,

at 992, the area’s reputation for crime is an appropriate factor to

consider when determining whether the Jerry stop is reason-

able. /bid (citing United States v. Sharpe, 470 U. S. 675, 682-

683, n. 3 (1985)).

The time of day is also relevant to some Jerry stops.

Officers believe that innocent people are less likely to be out at

night. See 4 W. LaFave, Search and Seizure § 9.4(f), p. 187 Gd

ed. 1996); L. Tiffany, D. McIntyre, & D. Rotenberg, Detection

of Crime 21 (1967). Courts also look to the time of day, finding

that late hours and darkness make some actions more suspi-

cious. See, e.g , Souza, supra, 9 Cal. 4th, at 241, 885 P. 2d, at

992-993; United States v. Lender, 985 F. 2d 151, 154 (CA4

1993); United States v. Watson, 953 F. 2d 895, 897 (CAS

owe —_

25

1992). Some courts have also found that some activities such

as “hanging around” or loading boxes are not suspicious when

conducted in daylight. See, e.g., Gibbs v. State, 306 A. 2d 587,

593 (Md. App. 1973) (“hanging around”); United States v.

Kerr, 817 F. 2d 1384, 1387 (CA9 1987) (loading boxes).

Unlike more innocent activities, flight from police is

suspicious at any time, in any place. As noted above, nighttime

is most often associated with criminal activity, giving police

more reason to suspect that the fleeing suspect is planning or

engaging in a crime. Suspicion also flows from daylight flight,

however. Night's association with crime, and the difficulty of

separating friend from foe in the darkness makes the night

encounter potentially threatening to the person encountering the

police. Therefore, an individual fleeing from an officer at night

may think that he is fleeing from a potential aggressor rather

than a police officer. This explanation does not hold during the

day, as individuals can much better determine the identity and

intent of approaching people. Daytime flight is also so unex-

pected it raises its own suspicions which a reasonable officer

should investigate.

Nor does location fully explain flight. While, like darkness,

the threat of crime reinforces the criminal intent associated with

flight, flight from police in low-crime areas generate their own

suspicions. As with darkness, people in high-crime areas may

be more wary towards strangers. Unfortunately, some people

in these areas may also be more fearful of police, such as recent

immigrants from police states. Such innocent explanations are

largely missing in lower-crime locations.* Activity that has

both innocent and illicit possibilities supports a Terry stop. See

Part I B 3, supra, at 14-16. Flight from police in safer locations

is less likely to be innocent and is thus also suspicious.

8. The existence of innocent reasons for flight in high-crime areas does not prevent

reasonable suspicion from being formed Ambiguous but suspicious behavior

supports reasonable suspicion. See Part | B 3. supra, at 14-16

26

If flight supports reasonable suspicion without regard to

time or place, two of the more important variables in a Terry

stop, see 4 LaFave, supra, §9.4(d), at 161-165 (discussing

suspicious conduct regarding property and premises); id.

§ 9.4(f), at 187-191, then flight from police will support a Terry

stop under almost any conceivable circumstance. So long as the

flight is unprovoked and from uniformed officers or a similarly

known police presence, cf. Wong Sun v. United States, 371

U. S. 471, 482-483 (1963), amicus cannot conceive of a

situation that would invalidate flight under Terry. Although

courts must look to the factual context of the stop, see Cortez,

supra, 449 U. §S., at 417-418, flight from police is its own

context. Drawing a bright line that allows flight alone to justify

Terry stops will almost always yield the same result as would

full analysis.

Holding that flight from a visible police presence will per

se justify a Terry stop is thus the appropriate standard. Flight

in this context creates a real suspicion of wrongdoing that

warrants further investigation. See Part | B, supra. This level

of suspicion is much more than enough to rise above the level

of rumor or hunch, thus limiting opportunities for harassment.

See supra, at 15-16. Since flight from police will justify a

Terry stop in virtually any factual context, there is little to lose

by making plain what will anyway become evident after

painstaking case-by-case adjudication. Officers and the public

will gain in the extra certainty and the freedom to investigate

this inherently suspicious behavior. Recognizing that flight

justifies a Terry stop would advance the primary goal of Terry

—allowing police to do their jobs.

27

CONCLUSION

The decision of the Illinois Supreme Court should be

reversed.

June, 1999

Respectfully submitted,

CHARLES L. HOBSON

Attorney for Amicus Curiae

Criminal Justice Legal Foundation