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To Flee or Not to Flee: The Implications of Illinois v. Wardlow on the Practice of Criminal Law in

Criminal Law

The issue of whether the flight of a person, upon encountering law enforcement, constitutes an indicia of guilt or criminal activity, has long been the subject of much debate and litigation. Indeed, quite often you will find that when faced with the issue of how to interpret a person’s flight upon the arrival of law enforcement, criminal justice scholars quickly split into two polarized factions: One faction will insist that it is an accepted axiom of criminal law that “the wicked flee when no man pursueth,” while the other faction will assert with equal fervor that “the righteous are as bold as a lion.”1

The U.S. Supreme Court was asked recently to side with one of the aforementioned factions. In Illinois vs. Wardlow, No. 98-1036, the State of Illinois asked our highest court to announce a “bright-line rule” that would serve to authorize law enforcement to temporarily detain anyone who flees at the mere sight of a police officer. Attorneys for the respondent likewise sought a “bright-line rule,” albeit one that would serve to hold that the fact a person takes flight upon encountering law enforcement can never, in and of itself, justify a temporary investigative stop of the ilk permitted in the landmark ruling of Terry v. Ohio, 392 U.S. 1 (1968).2 Rather than adopting either party’s per se rule, the Supreme Court opted for what can best be categorized as a “totality of the circumstances” test, in determining whether law enforcement officers are justified in stopping a person who flees upon encountering them.3 The fallout of the Supreme Court’s ruling will, in all likelihood, prove to be most significant in terms of the objective limitations on the broad powers granted to law enforcement.

The facts of Wardlow are fairly straightforward: Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking and other illicit activities. Two officers gave chase, overtook Wardlow, and patted him down for weapons. The officers found Wardlow to be in possession of a. 38 caliber handgun and subsequently arrested him. The stop, according to Chief Justice Rehnquist, who delivered the opinion of the Court, did not violate the Fourth Amendment to the U.S. Constitution.4

The Illinois trial court denied Wardlow’s motion to suppress, ruling that the weapon was found during a lawful stop and frisk. Following a stipulated bench trial, Wardlow was convicted of unlawful use of a weapon by a felon.5 The Illinois Appellate Court reversed Wardlow’s conviction, concluding that the gun should have been suppressed as the arresting officers lacked reasonable suspicion sufficient to justify an investigative stop pursuant to Terry vs. Ohio, 392 U.S. 1. The Illinois Supreme Court affirmed the appellate court ruling, holding, inter alia, that mere, sudden flight in a high crime area does not give rise to reasonable suspicion thereby justifying a Terry stop.6

Chief Justice Rehnquist offered several interesting rationales for reversing the Illinois Supreme Court. Specifically, the Justice wrote that it was Wardlow’s “unprovoked flight” that aroused the officers’ suspicion, not Wardlow’s mere presence in a high crime area. The Chief Justice observed that the Court’s holding is consistent with its decision in Florida v. Royer, 460 U.S. 491 (1993), in which the Court held that an individual has the right to ignore the police and go about his business in those instances when law enforcement lacks reasonable suspicion or probable cause to detain him or her.7 He distinguished Royer from the facts leading up to Wardlow’s arrest by opining that flight constitutes more than a mere refusal to cooperate, but rather, flight, by its very nature is anything but “going about one’s business.”8

Justice Stevens, dissenting in part, took exception with Chief Justice Rehnquist’s notion of “unprovoked flight.” “It is a matter of common knowledge,” the Justice wrote, “that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as guilty parties, or from an unwillingness to appear as witnesses.”9 He further observed that there exists citizens who, regardless of justification, fear that a confrontation with law enforcement can itself prove dangerous, “apart from any criminal activity associated with the officer’s sudden presence.” For such people, the Justice concluded, unprovoked flight is neither aberrant nor abnormal.10

Justice Rehnquist did not fail to recognize that there exists innocent reasons for flight from police, nor is fight “necessarily indicative of ongoing criminal activity.” Still, the Justice opined, despite one of a myriad of reasons a person may fly upon encountering law enforcement, the detainment of same to conduct an investigation does not establish a Fourth Amendment violation.11 Referring back to Terry, the Justice noted that the actions of the two persons arrested in Terry, to wit, the pacing back in forth in front of a store, was a lawful activity. As such, the stop was ambiguous and susceptible of an innocent explanation.12 Still, the Justice went on, that same conduct suggested that the individuals were casing the store for a planned robbery. The Terry court determined that the arresting officers were empowered to detain the individuals to dispel the ambiguity.13

Historically, Florida courts have struggled with the issue of whether flight from law enforcement, standing alone, may sustain a charge of resisting officer without violence to his or her person. In recent years, however, Florida courts have consistently held that flight alone does not constitute obstructing an officer and as such does not give rise to a well-founded suspicion of criminal activity under the statutory prohibition against resisting an officer.14 What effect then, if any, will Wardlow have on the manner in which Florida prosecutors and the criminal defense bar litigate cases? A plain reading of the opinion implies that the scales may just have tipped a bit in favor of the prosecution. It also appears this ruling will somewhat change the rules of the game in terms of arrests and prosecution for resisting arrest without violence and other charges depending upon what is learned or discovered by law enforcement once they apprehend the person who took flight. Justice Rehnquist noted that “reasonable suspicion must be based on commonsense judgments and inferences about human behavior.”15 Still, he likewise observed that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”16 I do not think it naive to surmise that, based upon Wardlow Florida’s law enforcement community will soon be putting the Court’s decision to the test. It remains to be seen if our courts will be inundated with a flurry of arrests for resisting arrest without violence, etc., and civil rights suits for false arrest, and related causes of action. In fact, the ACLU viewed the Supreme Court’s ruling as a significant one that has the potential to tread on the general public’s Fourth Amendment rights, prompting the organization to file an amicus brief. In a statement issued by ACLU General Counsel Susan Herman, the ACLU stressed the potential impact Wardlow may have on minority residents of poor neighborhoods “if the Court rules that flight from the police, if coupled with a presence in a ‘high-crime’ neighborhood” is enough justification for a stop and frisk.17 It can be presumed, however, that the restrictions on arresting those who take flight provided by F.S. §843.02 may just have lost their punch. q

5 Illinois vs. Wardlow, 287 Ill. App. 3d 367, 678 N.E.2d 65 (1997).
6 Illinois vs. Wardlow, 183 Ill.2d, 701 N.E.2d 484 (1998).
7 Illinois vs. Wardlow, No. 98-1036, citing Florida v. Royer, 460 U.S. 491 (1993). Royer held that, when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to go about his business. Id. at 498.
8 Illinois vs. Wardlow, No. 98-1036.
9 Id. Justice Stevens dissented in part and concurred in part.
10 Id.
11 Id.
12 Terry vs. Ohio, 392 U.S. at 1, 5, 6.
13 Id. at 30.
14 See Fla. Stat. §843.02 (1996); and Mosely v. State, 739 So. 2d 672 (Fla. 4th D.C.A. 1999).
15 Illinois vs. Wardlow, No. 98-1036.
16 Id.
17 Statement of Susan Herman, ACLU general counsel, In The Courts, January, 2000.

Joseph G. Jarret practices civil litigation and criminal defense law in Winter Haven with Byron P. Hileman, whom the author thanks for reviewing this article. Mr. Jarret holds a B.S. in criminal justice from Troy State University, a masters in public administration from Central Michigan University, and a J.D. from Stetson. He is a former U. S. Army combat arms officer and former Department of the Air Force special investigator.
This column is submitted on behalf of the Criminal Law Section, George E. Tragos, chair, and Randy E. Merrill, editor.

Criminal Law