Illinois v. Wardlow The Case Facts Sam Wardlow, a 44-year old black man, was standing on a sidewalk on Chicago's West Side when four police cars containing eight police officers came into sight. Though Wardlow was not doing anything visibly suspicious, he fled the scene when he saw the police officers. Timothy Nolan, a veteran police officer, chased Wardlow. They believed that his flight indicated unlawful activity since Wardlow was in what the officers believed to be a high crime area. They caught Wardlow and frisked him. During the pat-down search, the two officers found a handgun. Wardlow was charged in the Cook County Circuit Court with several counts of unlawful use of a weapon by a felon and unlawful use of a weapon. His attorney filed a motion to have the gun evidence suppressed before the trial. Wardlow and his attorney contended that the pat-down search violated the Fourth Amendment right against unreasonable search and seizure because the police had no reasonable cause to stop Wardlow. However, the motion was denied by the trial court. The court found that, although Wardlow was not engaged in a crime or acting otherwise suspiciously, the combination of Wardlow's flight and the knowledge that drugs and weapons are commonly carried in the area justified the stop and frisk by the police. The evidence was then allowed in court. Wardlow was convicted for unlawful use of a weapon by a felon. He appealed his case to the Illinois Appellate Court, First Division. That court unanimously ruled in Wardlow's favor, reversing the lower court decision. The appeals court ruled that there was not enough evidence to support the police's allegations that Wardlow was in a high crime area. That being the case, the police could not stop Wardlow for simply fleeing the scene. This time the State of Illinois appealed the case to the Illinois Supreme Court. That court sided unanimously with Wardlow, affirming the Appellate Court's decision. The Illinois Supreme Court agreed with the Circuit Court that the area where they saw Wardlow was indeed a high crime area; however, this did not justify the stop and frisk. Thus the Illinois Supreme Court declared that the search violated the Fourth Amendment. The State of Illinois then appealed the case to the U.S. Supreme Court. Background to the Fourth Amendment The Fourth Amendment 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. -- Fourth Amendment to the U.S. Constitution The Fourth Amendment was included in the Bill of Rights to protect people from unreasonable and arbitrary intrusion on their privacy by the government. It sets out broad guidelines for police searches of persons and property - that searches can be conducted with a warrant and they must be reasonable -- but the courts have had to make significant interpretations of the Fourth Amendment over time. For instance, it is not always clear what a "reasonable" search is; the courts must examine the facts and circumstances of each case to determine if the search was reasonable. In addition, the courts have found that some searches can be conducted without a warrant. When can police stop a person and conduct a frisk? At the time the Wardlow case was heard, past courts had determined that the police were allowed to conduct a warrantless "stop and frisk" search if the officer saw the person acting suspiciously or had reason to believe the person was likely to be armed. A frisk is a brief search of a person with the aim of determining whether the person is armed. It is not a full search, but is instead a pat-down of the outer clothing. The rule allowing a stop and frisk is certain circumstances came from the Supreme Court's ruling in Terry v. Ohio (1968). In their decision for that case, the Court said: "where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquires, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." The Terry decision requires that police have "reasonable" cause to conduct a stop and frisk. This is a lower standard of proof than "probable cause." In determining whether there is reasonable cause to stop a person, the police must be able to point to specific and articulable facts that support the inference of suspicion. In other words, the police cannot act on their "gut" feelings. The consequences of this lower standard is that police can stop and frisk when they have a suspicion (grounded in concrete facts) that illegal activity may be taking place, or about to take place. They do not have to see the illegal activity itself. In Sam Wardlow's case, the only indication that the police had of suspicious activity was Wardlow's flight from the police. He was not engaged in other activity, nor did they have any indication that he was carrying a gun. The question then became whether Wardlow's flight from the police was reason enough to justify a stop and frisk. The State of Illinois claims in this case that fleeing the police is suspicious in and of itself; in case the court doesn't agree, Illinois also claims that a person's flight in combination with the surroundings of a high crime area are enough to make the fleeing person suspicious. On the other hand, Wardlow claims that there are many reasons a person might flee at the sight of police, making it impossible for them to determine suspicion or
not. Ambiguities like these make search and seizure law very complex and force the courts to address the law on a case-by-case basis. This is why it is very important to examine carefully the circumstances of the Wardlow case. Why is the suspicion attached to flight so important for Wardlow? Generally speaking, if a court finds a search to be unreasonable, then the evidence obtained during the search cannot be used against a defendant during trial. The principle by which illegally seized evidence is kept out of trials is called the exclusionary rule. When Sam Wardlow was preparing for trial, his attorney filed a pretrial motion to get the gun evidence suppressed. They claim that the search was unreasonable because Wardlow was doing nothing suspicious and was not obviously engaged in crime. Therefore, the gun should not be allowed as evidence to support the weapons charge. However, in this case, the trial court declared that his flight in a high crime area was suspicious and denied the motion to suppress the gun. During the trial, this evidence was enough to convince a jury to convict Wardlow. The evidence also became the reason for Wardlow's appeal to the Illinois Appellate Court. Majority Decision Chief Justice Rehnquist delivered the opinion of the Court. In finding for the petitioner, the State of Illinois, the Court referred back to the standard for a stop and frisk established in the case of Terry v. Ohio (1968). In that case, the Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. While noting that "reasonable suspicion" is a lower standard than "probable cause," the Court nonetheless reinforced that the officer must have at least a minimum level of objective (i.e. observable) justification for making the stop. The officer cannot act on a hunch. Though Sam Wardlow was not observably engaged in criminal activity, nor acting suspiciously other than running, the Court reiterated past decisions in asserting that "officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation." Therefore, the fact that the stop occurred in a "high crime area" is one of the relevant facts that an officer can consider when evaluating the suspiciousness of a person. The Court also affirmed the officer's contention that flight is indicative of suspicious behavior. "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." Based on what the Court understands about human behavior, therefore, the justices concluded that Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity. Therefore the stop and frisk was also justified. The justices went on to intercept arguments that their judgment contradicted the Court's findings in Florida v. Royer (1983). In that case, the Court held that people have the right to ignore the police and go about their business if there is no reasonable suspicion or probable cause of criminal activity. Rehnquist distinguished between unprovoked flight and refusal to cooperate. "Flight, by its very nature, is not 'going about one's business'; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning." The Court accepted Wardlow's argument that there are many reasons why a person might flee from officers, that the circumstances of flight are ambiguous and do not automatically indicate criminal activity. However, the justices countered that Terry v. Ohio "recognized that the officers could detain the individuals to resolve the ambiguity." In the final analysis, the Court did not establish a "bright-line rule" allowing police to stop fleeing people in every circumstance. Nor did the Court adopt a per se rule that fleeing alone could not justify a stop. The justices did establish that flight, in combination with other articulable circumstances, can be considered in evaluating the suspiciousness of the situation. Dissenting Opinion Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring in part and dissenting in part. The dissenters agreed with the majority that it would be unwise to adopt a rule always allowing the police to detain anyone who flees at the mere sight of a police officer. They also agreed with the Court that it should not adopt the opposite rule, that flight alone can never be sufficient to justify a temporary investigative stop. Like the majority, the dissenters introduced their opinion with a review of Terry v. Ohio (1968) and other Court decisions that clarified the circumstances under which an officer may conduct an investigatory stop. The dissenters remind us that the officers must take into account the totality of the situation and that it is appropriate to rely on "certain commonsense conclusions about human behavior" when evaluating the suspiciousness of a person or situation. The question in this case is "the degree of suspicion that attaches to" a person's flight, or what can an officer reasonably infer about the motives of a person fleeing the police. Certainly, the dissenters agree, there are many reasons why a person may break into flight - to catch up with a friend, to seek shelter, to answer the call of nature - and these reasons may happen to coincide with the arrival of a police officer on the scene. The inferences that police may draw about the motives of a fleeing person must rely on myriad other circumstances at the scene, such as the time of day, the character of the area, the direction of the flight, etc. In reinforcing this analysis, the dissenters discussed recent research about minorities and those living in high
crime areas who are fearful of the police because of actual or perceived police discrimination and abuse. They recognized that for many people the sight of police is enough to provoke flight even though no criminal activity is afoot. "For such a person, unprovoked flight is neither 'aberrant' nor 'abnormal.'" The dissenters include in their decision numerous footnotes regarding bystander victimization, statistics on views of African-Americans towards the police, incidents of innocent people being picked up in drug sweeps, and racial profiling in traffic stops. It is clear to the dissenters that given these and other circumstances, no set rule can be adopted that treats flight as always suspicious, or never suspicious, because incident must be evaluated on a case-by-case basis. Where the dissenters part from the majority is in the application of the "totality of the circumstances" test in this particular case. The dissenters support the Appellate Court's contention that the official record of the incident was "too vague to support the inference that defendant's flight was related to his expectation of police focus on him." The dissenters note that Officer Nolan could not recall whether the police cars were marked or unmarked, that the testimony did not indicate how fast the cars were driving, or whether Wardlow noticed the other police cars in the caravan. The dissenters also part with the majority in the assertion that being in a high crime area can support the suspicion of a person. They note that there are so many factors that might make a person flee in a high crime area that the adverse character of the neighborhood probably makes an inference of guilt even less appropriate. The dissenters contend that the State of Illinois failed to provide enough objective, articulable evidence to support the reasonable suspicion needed to justify a stop and frisk.
Illinois v. Wardlow The Case in the Courts SUPREME COURT OF THE UNITED STATES IS A PERSON S SUDDEN AND UNPROVOKED FLIGHT FROM A CLEARLY IDENTIFIABLE POLICE OFFICER, WHO IS PATROLLING A HIGH CRIME AREA, SUFFICIENTLY SUSPICIOUS TO JUSTIFY A TEMPORARY INVESTIGATORY STOP, PURSUANT TO TERRY V. OHIO? ILLINOIS SUPREME COURT Court sides with Wardlow. An individual s flight from police in a high crime area is not sufficient cause to justify a police investigatory stop. ILLINOIS APPELLATE COURT, FIRST DIVISION Court sides with Wardlow. Not enough evidence of a high crime area and the flight alone cannot justify a police investigatory stop. COOK COUNTY CIRCUIT COURT (trial) Trial court denies Wardlow s motion to suppress the gun evidence stating that the high crime area coupled with Wardlow s flight justifies the investigatory stop. Wardlow is convicted of unlawful use of a weapon by a felon.
Can Police Detain an Individual Solely Because He Ran Away from Them? By Ronald J. Bretz In this case, petitioner, the State of Illinois, asks the Court to create a per se rule that unprovoked flight from a police officer is inherently suspicious and permits a so-called Terry stop. Alternatively, the petioner argues that such flight in a high-crime area provides the police with reasonable suspicion of criminal activity. Both the Illinois Appellate Court and the Illinois Supreme Court rejected these arguments and held that the stop and search of respondent Sam Wardlow violated the Fourth Amendment. In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court created an exception to the rule that police must have probable cause to believe a person has committed a crime before the police can physically seize that person. The Terry Court, recognizing that ther is a strong public interest in permitting the police to investigate suspicious individuals in order to prevent or ferret out criminal activity, held that the police may conduct a brief investigatory stop based on a reasonable suspicion that the person is about to engage or has engaged in criminal activity. While the Court refrained from clearly defining reasonable suspicion, it is certainly less than probable cause. In order to justify an investigatory detention, the officer must be able to articulate the facts that led to the reasonable suspicion. The officer must point to specific facts along with any reasonable inferences that justified the intrusion on the individual s liberty. The Court has stressed that each case must viewed on is own merits using a totality of the circumstances analysis. On the other hand, the Court has held that absent reasonable suspicion justifying a seizure, the individual has the right to refuse to cooperate with the police and to go his or her own way. Just as in the situation in which an individual refuses consent to search, this lack-of-cooperation standing alone does not justify the conclusion that the individual is engaging in criminal behavior. The question raised by this case is whether flight or running away from a police officer by itself or in conjunction with the police assessment of the area of the flight as high crime is more than simply going one s own way and is therefore inherently suspicious enough to justify an investigatory stop. The State concedes that respondent Wardlow had not engaged in any objectively suspicious activity before he ran from the police officers. The State argues that respondent s flight after making eye contact with a uniformed police officer in a high-crime neighborhood of Chicago gave the officer a reasonable suspicion that Wardlow was engaging in criminal behavior and that he was armed and dangerous. Thus, the officer was warranted in his pursuit, seizure, and frisk of Wardlow. The trial judge accepted the State s argument and denied Wardlow s pretrial motion to suppress a gun discovered during the officer s frisk. However, both the Illinois Appellate Court and the Illinois Supreme Court unanimously agreed with Wardlow that his seizure violated the Fourth Amendment prohibition against unreasonable search and seizure. Although the United States Supreme Court has never definitively ruled on the argument raised by the State in this case, lower courts have split on the issue. The Wardlow case gives the Court the opportunity to resolve this split of authority. Issue The parties state the issue differently in this case. The petitioner states that the issue is whether a person s unprovoked flight from the police in a high-crime area provides the police with reasonable suspicion to justify an investigative detention of that person. The respondent counters that the issue is whether a person s flight from four police cars containing eight police officers caravanning through an undefined area constitutes reasonable suspicion sufficient to justify an investigatory stop.
Facts On September 9, 1995, eight Chicago police officers in four police cars converged on an area in the city of Chicago that, according to the testimony of one of the police officers, was known for narcotics trafficking. As the caravan of police cars drove down West Van Buren, Officer Timothy Nolan, a nine-year veteran of the force, saw respondent Sam Wardlow standing in front of one of the buildings. Wardlow was not apparently violating any laws at the time or doing anything else the officers thought suspicious. Wardlow looked in the direction of Officer Nolan and began running. Nolan and his partner pursued respondent Wardlow and eventually caught up with him. Both officers were dressed in their police uniforms. Officer Nolan stopped respondent and conducted a pat-down frisk. Officer Nolan felt a hard object that he believed was handgun inside a white, opaque plastic bag. Nolan looked in the bag and found a loaded.38 caliber handgun. He then placed Wardlow under arrest. Respondent Wardlow was charged in the Cook County Circuit Court with two counts of unlawful use of a weapon by a felon and two counts of unlawful use of a weapon. He filed a pretrial motion to suppress physical evidence, which the trial court denied. That court found that although the police had no articulable facts that respondent was engaged in criminal conduct, the officers knowledge that drugs are sold in certain areas and weapons are commonly carried in such areas coupled with respondent s flight, justified the stop and frisk under a totality of the circumstances test. Following his bench-tried conviction for unlawful use of a weapon by a felon, respondent Wardlow appealed his conviction to the Illinois Appellate Court, First Division. That court unanimously reversed the conviction. The court held that the evidence at the suppression hearing did not support the inference that Wardlow was in a high-crime area or that was a location where drugs were sold. Respondent s flight from the police, standing alone, did not provide the police with reasonable suspicion to justify an investigatory stop. On the State s appeal to the Illinois Supreme Court, that court unanimously affirmed the appellate court. In doing so, it rejected the appellate court s conclusion that the area where Wardlow was first seen was not shown to be a high-crime area. The Illinois Supreme Court held instead that flight from the police, even in a highcrime area, did not justify a police investigative stop. Thus, the stop and frisk of respondent Wardlow violated the Fourth Amendment. The United States Supreme Court granted the State of Illinois petition for certiorari on May 3, 1999. Case Analysis The Illinois Supreme Court described the issue before it as simply whether an individual s flight from a police vehicle patrolling a high-crime area is sufficient to justify an investigatory stop of that individual. Answering that question in the negative, the court held that respondent was subjected to an unconstitutional search and seizure because there were no articulable facts available to the officers upon which they could conclude there was a reasonable suspicion of criminal activity. According to the Illinois Supreme Court, Officer Nolan was simply acting on a hunch; he failed to articulate any facts that would support a reasonable inference that respondent had engaged or was about to engage in criminal activity. In its brief before the United States Supreme Court, the petitioner, the State of Illinois, raises two arguments. First, the State argues that unprovoked flight from the police is always suspicious and by itself justifies a brief investigative stop. Alternatively, the State argues that flight from the police in a high-crime area, as occurred in this case, is sufficient to induce a reasonable suspicion of criminal activity permitting the police to detain the fleeing individual.
The investigative stop or stop and frisk involved here has its constitutional origins in the Terry decision. Int that case, the Supreme Court made it clear that while reasonable suspicion of criminal activity justifies a seizure of the person, the seizure may only last as long as necessary for the police to confirm or dispel their suspicions. The Court also held that while reasonable suspicion required a lesser degree of suspicion than probable cause, it was still an objective standard. In order to justify the stop, the police must be able to point to specific and articulable facts that, together with reasonable inferences, warrant the intrusion on the suspect s liberty. Along with the stop of the individual, the Terry decision also permits a warrantless search or frisk of the person if the police have a reasonable suspicion that the person is armed and dangerous. The frisk is limited to a pat down of the person s outer clothing or possessions solely to determine if the person is carrying a weapon. The purpose of permitting this limited search is to defuse the danger and protect the police. The right to search under Terry is not automatic in every case in which the police have the right to stop. The police must be able not only to articulate the reasonable suspicion of criminal activity but also to articulate a reasonable suspicion that the suspect is armed. A weapons frisk is justified if, as in the Terry case itself, the police reasonably suspect that the person is about to commit a violent offense. While Terry did not involve a fleeing individual, the Supreme Court did have an opportunity to consider flight in a subsequent case, California v. Hodari D., 499 U.S. 621 (1991). Like respondent in the instant case, Hodari fled when he saw an approaching police car. The police gave chase and ordered Hodari to stop. While he was running, Hodari, threw away what turned out to be crack cocaine. After the police retrieved the cocaine, they were able to subdue Hodari. In the Supreme Court, Hodari argued that the police action of chasing him and ordering him to stop amounted to a seizure of his person without the requisite reasonable suspicion. The Court, in an opinion by Justice Scalia, held that Hodari was not seized until he actually yielded to the police command to stop. Since this occurred after the discovery of the discarded cocaine, the police had ample reasonable suspicion of criminal activity to effectuate the seizure. Since the Court found that the seizure in Hodari did not occur until after the evidence was discovered, it never reached the issue of whether the defendant s unprovoked flight from the police amounted to a reasonable suspicion of criminal activity. However, language in both the majority and dissenting opinions indicates that the Court has very divergent views in this area. After observing that the issue had not been decided by the Court, Justice Scalia stated in a footnote his opinion that the notion that it is unreasonable to stop young men who flee at the mere sight of the police arguably contradicts proverbial common sense. As authority for this proposition, Justice Scalia cited Proverbs 28:1: The wicked flee when no man pursueth. In the dissenting opinion in Hodari, Justice Stevens took an opposite view of mere flight from the police. According to Justice Stevens, if the officer had subdued the defendant before the defendant dropped the cocaine, the cocaine unquestionably would have been excluded as fruit of the officer s unlawful seizure. Not surprisingly, the State of Illinois in its brief cites Justice Scalia s biblical quotation. According to the State, the act of fleeing from the mere sight of a police officer is such extreme behavior that it should cause a reasonable police officer to become suspicious enough to conduct an investigation. The State argues that while citizens can have a variety of reactions to the presence of police it is objectively reasonable for the officer to become suspicious of one who runs away. Thus, the State asks the Court to adopt a bright-line rule permitting a Terry stop in any case in which the individual s only suspicious activity is to run from the police. The State supports its proposed bright-line rule not only with the biblical and common sense arguments suggested by Justice Scalia but also by its contention that flight at common law was invariably regarded as a confession of guilt. Indeed, at common law, flight was treated so severely that, according to Blackstone, the law required the defendant to forfeit all his goods and chattels if the jury found that he had fled whether or not he was also found guilty of the charged offense. The State reasons that since the common law in effect at the time of the drafting of the Fourth Amendment attached such harsh consequences to flight, including a bright-
line forfeiture rue, adoption of the State s proposed bright-line rule in this case would not be inconsistent with common law. The State of Illinois brief cites a number of federal and state decisions that have apparently concluded that flight from the police alone is sufficient to give the police officer reasonable suspicion that the fleeing suspect is engaged in criminal activity. Included in the list of cases are decisions from three of the federal circuits. The State acknowledges that there are a number other jurisdictions that have reached the opposite result. The latter list also includes three federal circuit courts of appeal. However, the State argues that some of the courts that have concluded that mere flight is not enough did so based on the theory that flight from the police is inherently ambiguous and therefore not sufficient to give rise to a reasonable suspicion of criminal activity. Petitioner Illinois criticizes these cases as lacking common sense and an understanding of police work. According to petitioner, even if flight from the police may be indicative of something other than criminal behavior, a reasonable police officer cannot and should not ignore the possibility that the flight may be indicative of criminal activity. After all, a reasonable suspicion does not need to rise to the level of probable cause and may, as the Terry case itself demonstrates, be based on ambiguous behavior. As an alternative to the mere flight bright-line rule, petitioner argues that flight from the police in a high-crime area, as occurred in this case, is sufficient for the police to have a reasonable suspicion under the totality of the circumstances. Thus, the State argues for an alternative bright-line rule; flight from a clearly identifiable police officer combined with the officer s evaluation of the general area as a high-crime area provides sufficient reasonable suspicion for a Terry stop. The State relies on a number of cases in which the Supreme Court as well as lower courts stressed that a police officer is allowed to take into account any information or knowledge about the area where the suspect is located. Since in this case Officer Nolan testified that the area was known to the police for its high incidence of drug trafficking,, respondent Wardlow s flight was reasonably suspicious. The respondent vigorously opposes adoption of either of the petitioner s bright-line rules. First, petitioner Wardlow argues that the bright-line approach is inconsistent with the Terry Court s holding that the police and the reviewing court must look at the totality of circumstances in each case. The Supreme Court has refused to explicitly define the boundaries of reasonable suspicion. Whether it exists in a given case is dependent on the officer s particularized observations and the unique facts of that case. The bright-line flight rule ignores the context of the flight. Other critical factors such as the time of day, the person s location, the number of persons present, the weather, and any furtive gestures would no longer be relevant. Adoption of the petitioner s suggested rule would effectively bestow unfettered discretion on the police and gut judicial review. The respondent argues that flight from the police, like other avoidant behavior, even in a high-crime area, is inherently ambiguous and cannot be deemed automatically suspicious. The respondent points out many plausible reasons why an innocent individual would flee at the sight of the police. For example, in its 1896 decision in Alberty v. United States, 162 U.S. 499 (1896), the Supreme Court noted that sometimes the innocent flee from the police out of a fear of being mistaken for the guilty party or a fear of humiliation. The respondent also argues that the innocent take flight fro other reasons such as a fear of harassment, beatings, or having evidence planted on them. In response to the petitioner s reliance on the common-law flight rules, respondent Wardlow suggests that the case law relied on by the State is based on post-accusation flight. While flight following accusation of criminal behavior is strongly supportive of an inference of guilt, pre-accusation flight is not. As noted above, avoidance of police contact before any accusations are leveled is not necessarily probative of guilt. The petitioner asserts in its reply brief that respondent s distinction between pre-accusation and post-accusation flight is not supported by the authorities. However, the State does concede that the four United States Supreme Court decisions cited in its brief all involve post-accusation flight. Respondent Wardlow also takes issue with the State s characterization of the flight in this case as unprovoked. Neither of the Illinois appellate courts referred to Wardlow s flight as unprovoked. Petitioner emphasizes the
circumstances leading up to his flight: he was standing in front of a build on a public street in the middle of the day doing nothing suspicious when four caravanning police vehicles containing eight officers converged on the area. Such a sight might cause a reasonably prudent person to flee. Respondent Wardlow acknowledges that flight from the police can be a factor in the totality of the circumstances analysis but argues that if cannot alone justify a Terry stop. He cites a number of federal and state decisions that have rejected a per se flight rule. The Supreme Court has stated in both Florida v. Royer, 460 U.S. 491 (1983), and Brown v. Texas, 443 U.S. 47 (1979), that absent individualized suspicion, a person has a right to refuse police contact and to go his or her own way. Respondent argues that the Court did not put any limitations on the speed at which one could go one one s way. Under the State s proposed rule, that right would be limited to a polite refusal to cooperate or a slow walk away. Once the individual increases foot speed, an exercise of a recognized constitutional right becomes criminally suspicious behavior. Respondent Wardlow suggests that the proposed rule would allow the police complete discretion to qualify a person s response as flight whether the person ran away, walked away too quickly, rode off on a bike, or got into a cab. Finally respondent opposes the State s alternative rule that flight from the police in a high-crime area should permit a police stop. Respondent characterizes this proposed rule as location plus evasion and argues that the area in which the evasion takes place is not enough to raise the flight to a reasonable suspicion. Reasonable suspicion, like probable cause, reflects a level of individualized suspicion. The characterization of the location as a high-crime area is not a factor that directly relates to the individual s activity and therefore does not significantly increase the individualized suspicion. If this rule is adopted the Court would be saying that the Constitution permits a person to run from the police some areas but not in others. Significance The significance of this case is evidenced by the number of amicus curiae briefs filed. The State of Illinois is asking the Supreme Court to expand the scope of the rule the Terry Court itself described as narrowly drawn. If the Court adopts on of the per se rules, it will be easier for the police to detain and investigate people. Amici in support of respondent Wardlow warn the Court that such an expansion of Terry is unwarranted and could lead to police intimidation and harassment of innocent people. Amici in support of the petitioner argue that the police need the freedom to stop and investigate someone who engages in the inherently suspicious activity of flight from the police. It seems that both views have advocates on the Court. Justice Scalia has expressed support for the State s position and its reliance on the Book of Proverbs. Interestingly, while Justice Scalia apparently believes that it is a matter of common sense that the wicked flee when no man pursueth, the Supreme Court in an 1896 decision, Alberty v. United States, explicitly rejected the accuracy of this biblical proverb. Justice Stevens, on the other hand, has stated that a person s flight from the police, standing alone, is unquestionably insufficient to support a Terry stop. The State s argument in favor of a bright-line rule is problematic. The Court has expressed a preference for bright-line rules to guide the police but has also indicated that Fourth Amendment cases involving reasonable suspicion and probable cause do not lend themselves to bright-line rules. See Ohio v. Robinette, 519 U.S. 33 (1996). The respondent and supportive amici offer examples to underscore the difficulty of applying petitioner s bright-line rule. For example, is it suspicious flight if the person gets into a car or cab and drives away immediately upon seeing the police? What if the person pedals off on a bike or steps quickly into a nearby building? The State s proposed per se rule does not provide an easy answer. If the Court adopts a bright-line rule here, it must carefully define flight. The Court can attempt to take a middle road here by rejecting a per se rule and still finding that the stop of respondent Wardlow was justified under the totality of the circumstances. The problem with this result is that it will likely be interpreted as a per se rule. After all, all Wardlow did that was arguably suspicious was to flee
from the police in a high-crime area. The only other fact that could conceivably give rise to suspicion was that he was carrying a white plastic bag. However, the State does not argue that the possession of the bad added to the reasonable suspicion equation. Both parties and all amici agree that the only facts relied on by the officers in this case were the flight and the location. If the Court finds that the stop and frisk of Sam Wardlow did not violate the Fourth Amendment, it will effectively authorize the bright-line rule advocated by the petitioner.