No. 98-1036
In the Supreme Court of the United States
STATE OF ILLINOIS, PETITIONER
v.
SAM WARDLOW
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONER
SETH P. WAXMAN
Solicitor General
Counsel of Record
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor General
DEBORAH WATSON
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether respondent's sudden and unprovoked flight from an identifiable police
officer in a high-crime area gave rise to a reasonable suspicion that respondent
was involved in criminal activity, justifying a temporary investigative
detention.
In the Supreme Court of the United States
No. 98-1036
STATE OF ILLINOIS, PETITIONER
v.
SAM WARDLOW
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF ILLINOIS
BRIEF FOR THE UNITED STATES AS
AMICUS CURIAE SUPPORTING PETITIONER
INTEREST OF THE UNITED STATES
This case presents the question whether and under what circumstances an
individual's flight from an identifiable police officer will give rise to
a reasonable suspicion of criminal wrongdoing justifying a temporary investigative
detention. The Court's resolution of that question will affect the practices
of federal law enforcement agents who encounter that situation. The disposition
of this case will also affect the admission in federal prosecutions of evidence
obtained by federal, state, and local police officers who apprehend suspects
after such flight.
STATEMENT
1. On September 9, 1995, Police Officer Timothy Nolan, a nine-year veteran
with the Chicago Police Department, was investigating narcotics sales in
the 11th District. Officer Nolan and his partner Officer Harvey were among
eight officers in four police cars traveling in a "caravan" east
on West Van Buren Street. Officers Nolan and Harvey were in the last car
of the caravan. Officer Nolan was dressed in full police uniform, which
included his badge, name tag, and Chicago Police Department arm patch. At
the hearing conducted on respondent's motion to suppress, Officer Nolan
testified that the area in question had a high incidence of narcotics trafficking.
Officer Nolan further testified that he did not remember if his police car
was marked or unmarked. Pet. App. 1-2, 13-14; J.A. 4, 7-10.
As the four cars traveled down West Van Buren, Officer Nolan noticed respondent
Sam Wardlow standing in front of 4035 West Van Buren, looking in their direction.
When respondent saw the officers approaching, he began to run. He was carrying
a white opaque bag under his arm. As Officers Nolan and Harvey followed
in their car, respondent ran south down a gangway and through an alley,
but the officers caught up with and cornered him. Officer Nolan conducted
a protective "pat-down" search of respondent and the bag he was
carrying.1 When he squeezed the bag, Officer Nolan felt a hard object similar
in shape to a revolver. Officer Nolan looked inside the bag and found a
.38 caliber Colt handgun loaded with live rounds of ammunition. Respondent
was then arrested. Pet. App. 1-2, 15; J.A. 4-11.2
2. Following his indictment on various weapons charges, respondent filed
a motion to suppress the seized gun. After conducting an evidentiary hearing
at which Officer Nolan testified to the events leading to respondent's arrest,
the trial court denied the motion. J.A. 13-15. The court observed that "[a]lmost
anybody can identify a police car marked or * * * unmarked," J.A. 14,
and it concluded that "once a person flees after having looked in the
direction of the officer there's reasonable-there's reason to think there's
a problem, they have a right to make inquiry," J.A. 15.
After a bench trial at which the parties stipulated to the testimony introduced
at the suppression hearing, respondent was convicted of unlawful use of
a weapon by a felon and sentenced to two years' imprisonment. Pet. App.
15; 12/6/95 Tr. 15-20.
3. The Appellate Court of Illinois reversed. Pet. App. 13-19. The court
found Officer Nolan's testimony "simply too vague to support the inference
that [respondent] was in a location with a high incidence of narcotics trafficking."
Id. at 17. The court then held that respondent's "sudden flight from
an area past which police officers were driving" was insufficient,
standing alone, to "satisfy the requirements for a lawful investigatory
stop." Id. at 18.
4. The Supreme Court of Illinois affirmed. Pet. App. 1-12. The court found
that "Officer Nolan's uncontradicted and undisputed testimony, which
was accepted by the trial court, was sufficient to establish that the incident
occurred in a high-crime area." Id. at 5. It therefore framed the question
presented by the appeal as "whether an individual's flight upon the
approach of a police vehicle patrolling a high-crime area is sufficient
to justify an investigative stop of the person." Ibid. The court agreed
with respondent that "such flight alone is insufficient to create a
reasonable suspicion of involvement in criminal conduct." Ibid.
Relying substantially on the Nebraska Supreme Court's decision in State
v. Hicks, 488 N.W.2d 359 (1992), cert. denied, 507 U.S. 1000 (1993), the
court concluded that a rule permitting investigative stops based on flight
alone would "upset the balance struck in Terry [v. Ohio, 392 U.S. 1
(1968),] between the individual's right to personal security and the public's
interest in prevention of crime." Pet. App. 7 (quoting Hicks, 488 N.W.2d
at 364). The court explained:
Flight upon approach of a police officer may simply reflect the exercise-at
top speed-of the person's constitutional right to move on. Terry and [Florida
v. Royer, 460 U.S. 491 (1983),] stand for the proposition that exercise
of this constitutional right may not itself provide the basis for more intrusive
police activity.
* * * * *
A prime concern underlying the Terry decision is protecting the right of
law-abiding citizens to eschew interactions with the police. Authorizing
the police to chase down and question all those who take flight upon their
approach would undercut this important right.
Pet. App. 6-7 (quoting Hicks, 488 N.W.2d at 363-364) (citation and quotation
marks omitted). The court thus agreed with respondent's argument that "[i]f
the police cannot constitutionally force otherwise law-abiding citizens
to move, the police cannot force those same citizens to stand still at the
appearance of an officer." Id. at 8.
The Illinois Supreme Court further concluded that the high incidence of
narcotics trafficking in the pertinent area did not give rise to a reasonable
suspicion that respondent was engaged in wrongdoing. The court noted that
the officers "were not responding to any call or report of suspicious
activity in the area." Pet. App. 10. It observed as well that respondent
"gave no outward indication of involvement in illicit activity prior
to the approach of Officer Nolan's vehicle," but "was simply standing
in front of a building when the officers drove by." Ibid. The court
concluded that "because Officer Nolan was not able to point to specific
facts corroborating the inference of guilt gleaned from [respondent's] flight,
his stop and subsequent arrest of [respondent] were constitutionally infirm."
Id. at 12. The court accordingly affirmed the judgment of the Illinois Appellate
Court reversing respondent's conviction. Ibid.
SUMMARY OF ARGUMENT
In Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, this Court held that
the Fourth Amendment permits brief investigative stops based on "reasonable
suspicion" of criminal wrongdoing. To protect the safety of the officers
conducting such a stop, moreover, when law enforcement officers have a reasonable
suspicion that the individual may be armed and dangerous, they may conduct
a limited search for weapons. The reasonable suspicion standard does not
require an officer to have probable cause to believe that an individual
has committed a crime. United States v. Sokolow, 490 U.S. 1, 7 (1989). Rather,
it requires only "some minimal level of objective justification,"
INS v. Delgado, 466 U.S. 210, 217 (1984), for believing that the individual
"is, or is about to be, engaged in criminal activity," United
States v. Cortez, 449 U.S. 411, 417 (1981).
Respondent's sudden and unprovoked flight from the caravan of police cars
and a uniformed police officer gave rise to a reasonable suspicion of his
possible involvement in criminal activity. Law enforcement officers have
historically treated flight as a suspicious circumstance warranting further
investigation. This Court has repeatedly held that efforts to evade police
scrutiny are directly relevant to reasonable suspicion and probable cause
determinations. The Court has also recognized that flight may properly be
treated as probative (though not conclusive) evidence of guilt in a criminal
prosecution.
Flight from an identifiable police officer may be susceptible of innocent
explanations. The purpose of a Terry stop, however, is not to apprehend
persons who are known to be guilty of criminal offenses; it is to clarify
situations in which unlawful activity is suspected but probable cause has
not been established. Unprovoked flight from identifiable police officers
is ordinarily a sufficiently valid indicator of illicit conduct to justify
a brief investigative stop. Although such flight may be undertaken for innocent
reasons, it is not behavior in which innocent persons commonly engage -and
it is far more likely to signal a consciousness of wrongdoing and a fear
of apprehension. An immediate investigatory seizure is especially appropriate
in these circumstances because the effect of flight is often to foreclose
the possibility of further observation of the individual that might reveal
additional signs of unlawful behavior.
To treat flight as a basis for an investigative stop does not unlawfully
impair an individual's right to avoid contact with the police. If respondent
had paid no attention to the officers, or had continued on his prior course
of conduct or activity, his decision to do that despite the police presence
would not (by itself) have justified an investigative stop. Instead, respondent
dramatically altered his conduct in response to the officers' arrival, in
an evident attempt to avoid police scrutiny. That pattern of activity is
much more aberrational, and much more uncharacteristic of innocent persons,
than a simple insistence on freedom from official interference.
ARGUMENT
RESPONDENT'S UNPROVOKED FLIGHT FROM POLICE OFFICERS PATROLLING A HIGH-CRIME
AREA GAVE RISE TO A REASONABLE SUSPICION OF CRIMINAL ACTIVITY AND JUSTIFIED
A TEMPORARY INVESTIGATIVE STOP BY THE POLICE
A. The Fourth Amendment Permits Limited Investigative Stops And Attendant
Protective Searches Based On Reasonable Suspicion Not Rising To The Level
Of Probable Cause
The Fourth Amendment provides that "[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated." U.S. Const. Amend. IV.
Under well-established precedent, the formal arrest of an individual is
"reasonable" only if it is based on probable cause to believe
that the person has engaged in unlawful activity. See, e.g., United States
v. Watson, 423 U.S. 411, 417, 421 (1976). The probable cause standard also
applies, as a general matter, in determining the reasonableness of "searches."
See, e.g., National Treasury Employees Union v. Von Raab, 489 U.S. 656,
665 (1989); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987).
Since its decision in Terry v. Ohio, 392 U.S. 1 (1968), however, this Court
has recognized that not every restriction on personal privacy or liberty
sufficient to constitute a "search" or "seizure" requires
the degree of individualized suspicion necessary to satisfy the probable
cause standard. Rather, the Court's decisions establish that "the police
can stop and briefly detain a person for investigative purposes if the officer
has a reasonable suspicion supported by articulable facts that criminal
activity 'may be afoot,' even if the officer lacks probable cause."
United States v. Sokolow, 490 U.S. 1, 7 (1989). As the Court has explained:
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. A brief stop of a suspicious individual,
in order to determine his identity or to maintain the status quo momentarily
while obtaining more information, may be most reasonable in light of the
facts known to the officer at the time.
Adams v. Williams, 407 U.S. 143, 145-146 (1972) (citation omitted).
The Court in Terry also recognized that an officer should not be required
to take unreasonable risks when, in an investigatory stop, the suspect may
be "armed with a weapon that could unexpectedly and fatally be used
against him." Terry, 392 U.S. at 23. Rather, "[s]o long as the
officer is entitled to make a forcible stop, and has reason to believe that
the suspect is armed and dangerous, he may conduct a weapons search limited
in scope to this protective purpose." Adams, 407 U.S. at 146 (footnote
omitted); see also, e.g., Minnesota v. Dickerson, 508 U.S. 366, 373 (1993)
(an officer in conducting a Terry stop may search "on the basis of
reasonable suspicion less than probable cause," so long as the search
is "limited to that which is necessary for the discovery of weapons
which might be used to harm the officer or others nearby").
The standard applicable to investigative stops and pat-down searches under
Terry-a standard most often characterized as "reasonable suspicion"-"effects
a needed balance between private and public interests." United States
v. Montoya de Hernandez, 473 U.S. 531, 541 (1985). Although the reasonable
suspicion standard precludes random or arbitrary seizures, or those based
merely on a subjective "hunch," the burden of justification that
it imposes "is considerably less than proof of wrongdoing by a preponderance
of the evidence." Sokolow, 490 U.S. at 7. Rather, that standard requires
only "some minimal level of objective justification to validate the
detention or seizure." INS v. Delgado, 466 U.S. 210, 217 (1984); see
also, e.g., United States v. Cortez, 449 U.S. 411, 417 (1981) ("An
investigatory stop must be justified by some objective manifestation that
the person stopped is, or is about to be, engaged in criminal activity.").3
B. Flight Has Historically Been Treated As Probative Evidence Of Involvement
In Criminal Activity
Under the foregoing principles, respondent's unprovoked flight from the
caravan of police cars and a uniformed police officer furnished a sufficient
objective basis for the officers to form a reasonable suspicion that he
was involved in criminal activity. Law enforcement officers have historically
treated flight as a suspicious circumstance warranting further investigation.
As one empirical study of police investigative practices concluded, "[c]ertainly,
officers on patrol assume that flight is strong evidence of guilt. They
almost always attempt to stop and question a person who flees from them,
even though they suspect no specific crime." Lawrence P. Tiffany et
al., Detection of Crime 32 n.19 (Frank J. Remington ed. 1967). Because flight
"may seem to indicate both the existence of a crime and participation
in it by the person who flees," id. at 19, "[a] person who * *
* changes his direction in an apparent attempt to avoid confronting [a police]
officer, or who flees at the sight of an officer will commonly be detained
and questioned," id. at 32.4
That historical practice is eminently reasonable. This Court has repeatedly
held that efforts to avoid police scrutiny are directly relevant to reasonable
suspicion and probable cause determinations. See, e.g., Sokolow, 490 U.S.
at 8-9 (suspect's "evasive or erratic path through an airport,"
and his apparent use of an alias, were factors relevant to the reasonable
suspicion inquiry); Florida v. Rodriguez, 469 U.S. 1, 6 (1984) ("Respondent's
strange movements in his attempt to evade the officers aroused further justifiable
suspicion."); United States v. Brignoni-Ponce, 422 U.S. 873, 885 (1975)
("erratic driving or obvious attempts to evade officers can support
a reasonable suspicion"); Sibron v. New York, 392 U.S. 40, 66-67 (1968)
("deliberately furtive actions and flight at the approach of strangers
or law officers are strong indicia of mens rea, and when coupled with specific
knowledge on the part of the officer relating the suspect to the evidence
of crime, they are proper factors to be considered in the decision to make
an arrest"); Husty v. United States, 282 U.S. 694, 701 (1931) (finding
of probable cause for search of automobile was based on, inter alia, "the
prompt attempt of [the defendant's] two companions to escape when hailed
by the officers").5
To treat flight as evidence of possible criminal conduct is consistent not
only with this Court's Fourth Amendment jurisprudence, but with well-established
principles of substantive criminal law. More than a century ago, this Court
observed that "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). Although
flight cannot properly be treated as "conclusive proof of guilt,"
Hickory v. United States, 160 U.S. 408, 421 (1896), "the flight of
the accused is a circumstance proper to be laid before the jury, as having
a tendency to prove his guilt," Alberty v. United States, 162 U.S.
499, 510 (1896).6
C. Respondent's Sudden Flight From Identifiable Police Officers Gave Those
Officers Reasonable Suspicion That He Was Involved In Criminal Activity
Courts that have refused to treat flight as a sufficient basis for a Terry
stop have offered two basic justifications for that holding. First, courts
have sometimes reasoned that flight by itself is ambiguous, since it may
have been inspired by innocent motives. See, e.g., Watkins v. State, 420
A.2d 270, 273-274 (Md. 1980). Second, courts have expressed the view that
an individual's right to avoid contact with police would be impaired if
flight were accepted as a sufficient basis for an investigative stop. See,
e.g., Pet. App. 6-7; State v. Hicks, 488 N.W.2d 359, 363-365 (Neb. 1992),
cert. denied, 507 U.S. 1000 (1993); State v. Talbot, 792 P.2d 489, 493-494
(Utah Ct. App. 1990); People v. Shabaz, 378 N.W.2d 451, 460-461 (Mich. 1985).
Neither of those rationales withstands scrutiny.
1. Sudden flight from an identifiable police officer may be susceptible
of innocent explanations. Investigative detentions are routinely based,
however, on conduct that is neither inherently blameworthy nor definitely
indicative of criminal behavior. As the Court explained in Sokolow,
"Innocent behavior will frequently provide the basis for a showing
of probable cause," and * * * "[i]n making a determination of
probable cause the relevant inquiry is not whether particular conduct is
'innocent' or 'guilty,' but the degree of suspicion that attaches to particular
types of noncriminal acts." That principle applies equally well to
the reasonable suspicion inquiry.
490 U.S. at 10 (quoting Illinois v. Gates, 462 U.S. 213, 243-244 n.13 (1983)).
Indeed, the point of this Court's Terry stop jurisprudence is to enable
police officers "to adopt an intermediate response" when they
possess a degree of individualized suspicion not rising to the level of
probable cause. Adams, 407 U.S. at 145. Situations in which probable cause
is lacking are by definition situations in which the suspect's behavior
is susceptible of an innocent explanation.7 Thus, "[d]oubtless, many
innocent explanations for [respondent's] conduct could be hypothesized,
but suspicious activity by its very nature is ambiguous. Indeed, the principal
function of the investigative stop is to quickly resolve the ambiguity and
establish whether the suspect's activity is legal or illegal." State
v. Jackson, 434 N.W.2d 386, 391 (Wis. 1989).8
The propriety of the investigative stop in this case therefore does not
depend on a showing that respondent's flight unequivocally evidenced his
involvement in criminal activity. Rather, the stop was appropriate so long
as respondent's behavior provided the "minimal level of objective justification"
necessary to satisfy the reasonable suspicion standard. Sokolow, 490 U.S.
at 7 (quoting INS v. Delgado, 466 U.S. 210, 217 (1984)). Unprovoked flight
from identifiable police officers is ordinarily a sufficiently probative
indication of illicit conduct to justify a brief investigative stop. Although
such flight may be undertaken for innocent reasons, it is not behavior in
which innocent persons commonly engage. Compare Reid v. Georgia, 448 U.S.
438, 441 (1980) (circumstances that "describe a very large category
of presumably innocent travelers" could not provide the basis for an
investigative stop). As the Wisconsin Supreme Court has explained,
[f]light at the sight of police is undeniably suspicious behavior. Although
many innocent explanations could be hypothesized as the reason for the flight,
a reasonable police officer who is charged with enforcing the law as well
as maintaining peace and order cannot ignore the inference that criminal
activity may well be afoot. Although it does not rise to a level of probable
cause, flight at the sight of a police officer certainly gives rise to a
reasonable suspicion that all is not well.
State v. Anderson, 454 N.W.2d 763, 766 (1990); see also 4 Wayne R. LaFave,
Search and Seizure § 9.4(f), at 181-182 (3d ed. 1996) (agreeing that
"behavior which evinces in the mind of a reasonable police officer
an intent to flee from the police is sufficiently suspicious in and of itself
to justify a temporary investigative stop by the police").
The Illinois Supreme Court appeared to agree that an individual's flight
from the police is relevant to the reasonable suspicion inquiry. It concluded,
however, that an investigative detention is permissible only "if there
are corroborating circumstances sufficient to create the reasonable suspicion
necessary for the stop." Pet. App. 8. As we explain above, unprovoked
flight is sufficiently unusual, and sufficiently uncharacteristic of innocent
persons, to satisfy the reasonable suspicion standard. There is, however,
an additional flaw in the court's suggestion that officers observing a individual's
flight should seek evidence "corroborating" the inference of possible
criminal involvement. In many if not most cases, the effect of flight is
to foreclose the possibility that close observation of the individual will
reveal additional signs of unlawful behavior. An immediate seizure is particularly
appropriate in cases, like the present one, in which officers have no practical
alternative means of further investigating the suspicious individual. Cf.
Adams, 407 U.S. at 146 ("A brief stop of a suspicious individual, in
order to determine his identity or to maintain the status quo momentarily
while obtaining more information, may be most reasonable in light of the
facts known to the officer at the time.") (emphasis added).
This Court has emphasized that in determining whether an investigative stop
was supported by reasonable suspicion, "the totality of the circumstances-
the whole picture-must be taken into account." Cortez, 449 U.S. at
417. Cases may occasionally arise in which other contextual factors refute
the inference of criminal activity that would otherwise attend an individual's
flight from identifiable police officers.9 In this case, however, the only
additional circumstance bearing on the reasonable suspicion inquiry was
the fact that the episode occurred in a high-crime area. An individual's
presence in a high-crime neighborhood is not in itself sufficient to justify
an investigative stop. See Brown v. Texas, 443 U.S. 47, 52 (1979). Nor is
presence in a high-crime area necessary to justify an officer's conclusion
that sudden and unprovoked flight from an identifiable police officer gives
rise to reasonable suspicion. But presence in such an area may contribute
to a finding of reasonable suspicion when combined with other relevant circumstances,
such as the flight in this case.10
2. In Florida v. Royer, 460 U.S. 491 (1983), a plurality of this Court stated
that an individual who is approached by the police
need not answer any question put to him; indeed, he may decline to listen
to the questions at all and may go on his way. He may not be detained even
momentarily without reasonable, objective grounds for doing so; and his
refusal to listen or answer does not, without more, furnish those grounds.
Id. at 498 (opinion of White, J.) (citation omitted). Some courts-including
the Illinois Supreme Court in this case-have concluded that a Terry stop
based on an individual's flight from the police impairs the individual's
right to "go on his way" and is therefore inconsistent with Royer.
See Pet. App. 6-7 (quoting Hicks, 488 N.W.2d at 363-364); Talbot, 792 P.2d
at 494; Shabaz, 378 N.W.2d at 458, 460-461. That reasoning is erroneous.
The general constitutional bar on suspicionless seizures of the person reflects
the fact that an individual has a liberty interest in pursuing his chosen
course of conduct free from official interference. In the Terry stop context,
that interest may be overridden if, but only if, government officials have
an objective basis for suspecting that the individual may be involved in
criminal or similar wrongful behavior. The bar on suspicionless seizures
would be effectively negated if the police could request that an individual
stop voluntarily, and then treat his refusal to do so as the basis for a
compulsory stop. Thus, the Court has "consistently held that a refusal
to cooperate, without more, does not furnish the minimal level of objective
justification needed for a detention or seizure." Florida v. Bostick,
501 U.S. 429, 437 (1991). The Royer plurality's recognition of the individual's
right to "go on his way," 460 U.S. at 498, and its assertion that
the exercise of that right cannot provide the basis for a stop, ibid., are
best understood to refer to situations in which a person simply refuses
to cease or modify his behavior in response to police entreaties.
Respondent, by contrast, did not insist on hewing to his predetermined course
of conduct. To the contrary, respondent dramatically altered his behavior
in direct response to the officers' arrival, and in an evident attempt to
avoid police scrutiny. That pattern of activity is much more aberrational,
and much more uncharacteristic of innocent persons, than is a simple insistence
on freedom from official interference. To treat such behavior as grounds
for an investigative stop would not permit suspicionless seizures. Had respondent
simply ignored the officers, his refusal to alter his behavior in response
to their arrival would not have furnished a basis for an investigative stop.
Recognition of that principle adequately protects the individual's right
to be free from arbitrary government intrusion. It is both unnecessary and
counterproductive to take the further step of barring police from drawing
the inferences that naturally flow from sudden and dramatic shifts in private
conduct.11
It is true that no state or federal law prohibited respondent from taking
flight when Officer Nolan appeared. In that sense it is accurate to say
that respondent had a "right" to flee and could not be punished
for that behavior. As we explain above, however (see pp. 14-15, supra),
Terry stops are routinely undertaken on the basis of conduct that is not
inherently unlawful.12 In Terry itself, the two suspects simply strolled
down a street and peered into a street window, met with and conversed with
a third person, and continued on their way-but in a manner that gave rise
to the suspicion that they were casing the store for a possible robbery.
392 U.S. at 5-6. The fact that respondent could not be punished for the
flight itself did not preclude the police from treating the flight as evidence
of possible involvement in criminal activity. Cf. Wisconsin v. Mitchell,
508 U.S. 476, 489 (1993) ("The First Amendment * * * does not prohibit
the evidentiary use of speech to establish the elements of a crime or to
prove motive or intent.").13
CONCLUSION
The judgment of the Supreme Court of Illinois should be reversed.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
JAMES K. ROBINSON
Assistant Attorney General
MICHAEL R. DREEBEN
Deputy Solicitor General
MALCOLM L. STEWART
Assistant to the Solicitor General
DEBORAH WATSON
Attorney
JUNE 1999
1 Officer Nolan testified at the suppression hearing that he "conducted
a protective pat down for [his] own safety" before asking respondent
any questions. J.A. 6. The officer also testified that in his experience
it is common for weapons to be found in the vicinity of drug trafficking
activities. J.A. 11.
2 Officer Nolan's arrest report indicates that respondent was arrested at
12:15 p.m. Pet. App. 2 n.1, 15.
3 Although investigatory stops are often based on the seizing officer's
firsthand observation of a suspect's unusual or idiosyncratic behavior,
the reasonable suspicion standard can be satisfied even without such observations.
For example, an informant's tip may furnish reasonable suspicion for an
investigative stop, particularly if some details of the tip are verified
independently. See, e.g., Alabama v. White, 496 U.S. 325, 329-332 (1990).
Reasonable suspicion may also exist where an individual closely matches
the description of the perpetrator of a prior crime. See, e.g., United States
v. Simpson, 992 F.2d 1224, 1226 (D.C. Cir.) (investigative stop was justified
where the seized individual "was wearing clothing similar to that described
by the victim, was of the same general age group * * *, was of the same
race and physical build of the alleged rapist, and was in the vicinity of
the crime"), cert. denied, 510 U.S. 906 (1993). An officer's observation
of "suspicious" behavior is therefore a frequent but not a necessary
predicate for an investigative stop.
4 We are aware of no empirical studies regarding the frequency with which
persons detained on the basis of flight are found to be involved in criminal
activity. Pursuit of fleeing suspects, however, is difficult and potentially
dangerous. Officers would likely not devote their energies to the pursuit
of fleeing persons unless those efforts played a genuine and necessary role
in detecting and preventing crime. The absence of any obvious motive for
police abuses reinforces the appropriateness of deference to the judgment
and experience of trained police officers.
5 Cf. California v. Hodari D., 499 U.S. 621, 623 n.1 (1991) ("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."); Michigan v. Chesternut, 486
U.S. 567, 576 (1988) (Kennedy, J., concurring) ("It is no bold step
to conclude, as the Court does, that the evidence should have been admitted,
for respondent's unprovoked flight gave the police ample cause to stop him.");
United States v. Sharpe, 470 U.S. 675, 705 (1985) (Brennan, J., dissenting)
("where police officers reasonably suspect that an individual may be
engaged in criminal activity, and the individual deliberately takes flight
when the officers attempt to stop and question him, the officers generally
no longer have mere reasonable suspicion, but probable cause to arrest").
6 This Court has often looked to common-law principles in assessing the
Fourth Amendment reasonableness of various types of searches and seizures.
See, e.g., Wilson v. Arkansas, 514 U.S. 927, 931 (1995); United States v.
Watson, 423 U.S. 411, 418-419 (1976); Gerstein v. Pugh, 420 U.S. 103, 111,
114 (1975); Carroll v. United States, 267 U.S. 132, 149-153 (1925). At common
law, flight created so strong a presumption of guilt that the flight of
one accused of treason, felony, or petit larceny resulted in the forfeiture
of his goods and chattels, whether he was found guilty or acquitted. See,
e.g., Hickory, 160 U.S. at 418; 4 William Blackstone, Commentaries 387 (St.
George Tucker ed. 1803); 2 John Henry Wigmore, Evidence § 276, at 122
& n.1 (James H. Chadbourn ed. 1979 & Supp. 1999). This Court has
moderated the common-law approach, holding that evidence of a defendant's
flight may not be treated as raising a conclusive presumption of guilt,
while recognizing that such evidence has probative value and may properly
be submitted to the jury. See Allen, 164 U.S. at 498-499; Alberty, 162 U.S.
at 508-511; Hickory, 160 U.S. at 416-423. The courts of appeals have continued
to recognize that evidence of flight may properly be admitted in a criminal
trial to show consciousness of guilt. See, e.g., United States v. Candelaria-Silva,
162 F.3d 698, 705 (1st Cir. 1998); United States v. Amuso, 21 F.3d 1251,
1258-1259 (2d Cir.), cert. denied, 513 U.S. 932 (1994); United States v.
Murphy, 996 F.2d 94, 96-97 (5th Cir.), cert. denied, 510 U.S. 971 (1993);
United States v. Hegwood, 977 F.2d 492, 498 n.3 (9th Cir. 1992), cert. denied,
508 U.S. 913 (1993); United States v. Pungitore, 910 F.2d 1084, 1151 (3d
Cir. 1990), cert. denied, 500 U.S. 915 (1991). Accord, e.g., 2 Wigmore,
supra § 276, at 122 ("It is universally conceded today that the
fact of an accused's flight * * * [is] admissible as evidence of consciousness
of guilt, and thus of guilt itself."); 1 Christopher B. Mueller &
Laird C. Kirkpatrick, Federal Evidence § 85 (2d ed. 1994); 2 John W.
Strong et al., McCormick on Evidence § 263 (4th ed. 1992).
7 Even the probable cause standard applicable to an arrest or full-scale
search requires only a "fair probability" that the suspect has
committed criminal acts or that the specified items will be found in the
location to be searched. Sokolow, 490 U.S. at 7; Gates, 462 U.S. at 238.
"[T]he level of suspicion required for a Terry stop is obviously less
demanding than that for probable cause" and requires "considerably
less than proof of wrongdoing by a preponderance of the evidence."
Sokolow, 490 U.S. at 7.
8 To the extent that innocent people flee from the police, seizures undertaken
on the basis of flight will sometimes result in incursions on the liberty
of persons who have committed no crime. That prospect, however, does not
make such stops unconstitutional. As the Court has explained in the context
of searches, the Fourth Amendment's reasonableness requirement
does not demand that the government be factually correct in its assessment
[of] what a search will produce. * * * If a magistrate, based upon seemingly
reliable but factually inaccurate information, issues a warrant for the
search of a house in which the sought-after felon is not present, has never
been present, and was never likely to have been present, the owner of that
house suffers one of the inconveniences we all expose ourselves to as the
cost of living in a safe society; he does not suffer a violation of the
Fourth Amendment.
Illinois v. Rodriguez, 497 U.S. 177, 184 (1990). The same principle applies
to Terry stops-except that the reasonable suspicion standard contemplates
a greater willingness to tolerate the seizure of persons who turn out to
be innocent, in light of the lesser intrusion that such stops entail.
9 For example, an officer who moved towards an individual while shouting
threats of violence or instructing people to clear an area could not plausibly
construe that person's flight as evidence of involvement in illicit conduct.
No such circumstances, however, are present in this case; the flight, instead,
was entirely unprovoked.
10 See, e.g., United States v. Brown, 159 F.3d 147, 149-150 (3d Cir. 1998),
cert. denied, 119 S. Ct. 1127 (1999); United States v. Gutierrez-Daniez,
131 F.3d 939, 942-943 (10th Cir. 1997), cert. denied, 118 S. Ct. 1334 (1998);
United States v. Atlas, 94 F.3d 447, 450-451 (8th Cir. 1996), cert. denied,
520 U.S. 1130 (1997); United States v. Evans, 994 F.2d 317, 322 (7th Cir.),
cert. denied, 510 U.S. 927 (1993); United States v. Lender, 985 F.2d 151,
154 (4th Cir. 1993); United States v. Lucas, 778 F.2d 885, 888 (D.C. Cir.
1985) (per curiam). See also 2 LaFave, supra §3.6(g), at 335 ("To
require police to disregard facts which, as a practical matter, are highly
relevant to the determination of probable cause, would do violence to the
underlying purpose of the Fourth Amendment's probable cause requirement
and would in fact do a disservice to the 'honest citizen' residing in a
high-crime area.") (footnote omitted).
11 We do not suggest that police can "force otherwise law- abiding
citizens * * * to stand still," Pet. App. 8, or that running in the
opposite direction from identifiable law enforcement officers can under
all circumstances be regarded as suspicious behavior. A marathoner engaged
in a training run could rush past police officers without arousing reasonable
suspicion. And that would be so even if the runner ignored a shouted police
request for a voluntary interview. Under those circumstances, it would be
accurate to say that the individual had "exercise[d] his constitutional
right to 'go on his way'-at top speed." Shabaz, 378 N.W.2d at 460.
The suspicious aspect of respondent's behavior was not running per se. It
was the fact that respondent deviated dramatically from his prior course
of conduct in response to the officers' arrival, and for the apparent purpose
of avoiding police scrutiny.
12 Indeed, a Terry stop will sometimes be appropriate even where police
have not observed the suspect engaging in any form of suspicious or unusual
conduct. See notes 3, 8, supra.
13 For essentially the same reasons that the investigative stop in this
case was permissible, Officer Nolan was justified in conducting a protective
pat-down of respondent's person. Respondent's flight suggested both that
he might be involved in illicit activity, and that he might be willing to
take extreme measures to avoid police questioning. Officer Nolan testified
that the area in which the stop occurred was known for "high narcotics
traffic," and that in his experience weapons are commonly found in
the vicinity of such areas. J.A. 8, 11. Based on those factors, Officer
Nolan "had reasonable grounds to believe that [respondent] was armed
and dangerous." Terry, 392 U.S. at 30. It was also reasonable for Officer
Nolan to feel the opaque bag that respondent carried. A weapon could as
easily be concealed in the bag-and as quickly retrieved-as if it were hidden
under respondent's clothing. Compare Michigan v. Long, 463 U.S. 1032, 1045-1052
(1983) (police conducting a vehicle stop reasonably searched areas of the
car, including a leather pouch, over which the suspect would have immediate
control, and that might contain a weapon). Thus, while the right to conduct
an investigative stop does not invariably include the right to perform a
weapons frisk, id. at 1049 n.14, the pat-down of respondent and his bag
was reasonable under the circumstances of this case.