Should I Stay or Should I Go?

Author: Richard C. Cleary


A recent decision of the U.S. Supreme Court may have ordinary citizens and criminal defendants alike asking the above question.

Historically, individuals, when confronted by police, had the right to ignore the officers and continue on with their business without threat of restraint, search and arrest. In January 2000 the Supreme Court decided, in Illinois v. Wardlow, that running in the opposite direction of approaching police officers gave the police sufficient “reasonable suspicion” to stop the runner and search him. The reasoning behind, and concerns arising from the decision are discussed in this article.

On September 9, 1995 Officers Nolan and Harvey were working as uniformed officers in the special operations section of the Chicago Police Department. The officers were driving the last car in a four car squad converging on a “high crime area” known for narcotics trafficking. As the officers passed 4035 West Van Buren, Nolan saw William,a/k/a “Sam”, Wardlow standing next to a building holding a bag. Wardlow spotted the officers and began running. Nolan and Harvey turned their cruiser around and pursued Wardlow as he ran through an alley. They eventually cornered him on the street and immediately conducted a pat-down search.

During the frisk, Nolan squeezed the bag Wardlow was carrying and felt a hard object similar to the shape of a gun. The officers opened the bag and discovered a loaded .38-caliber handgun. Wardlow was arrested for unlawful use of a weapon by a felon. Wardlow was subsequently convicted of the charge and he appealed. The Illinois Supreme Court sided with the defendant and ruled that sudden flight, even in a high crime area, does not give the police reasonable suspicion justifying a stop and frisk. The court explained that although police have the right to approach individuals and ask questions, the individual has no obligation to remain or respond. If the person declines to answer and simply goes on his or her way, that does not give the officer a legitimate basis for a stop. The court then reasoned that running away was simply an exercise of this right to “go on one’s way” in a speedier fashion.

The U.S. Supreme Court disagreed, stating “headlong flight,” wherever it occurs, is the consummate act of evasion. The Court dismissed the idea that unprovoked flight was merely an exercise of a person “going about one’s business,” stating such flight was the exact opposite. The Court equated this flight with “nervous, evasive behavior” which could form a legitimate basis for stopping a person and searching him. Wardlow argued that there are innocent reasons for flight from police and therefore such behavior is not indicative of ongoing criminal activity. The court agreed, but stated, the officer’s determination of reasonable suspicion must be based on “commonsense judgments and inferences about human behavior.” The Court affirmed Wardlow’s conviction.

This decision leaves open several questions.
If a person refuses to make eye contact and walks away can the officers use “commonsense judgments and inferences about human behavior” and assume the person is hiding something, thus justifying a stop?
May a person walk away from the officers quickly, or will that too justify a stop?
How fast is too fast?
What if the person remains in the location where he was confronted by the police officers, but doesn’t answer any questions?
Is that individual “going about his business” by remaining?
Can an individual skip away whistling show tunes without justifying a stop?

By basing its decision on the speed of the individuals exercise of his or her right to distance themselves from the confrontation with police, the Court has expanded police power to stop ordinary citizens without clear guidelines.

The decision will leave many wondering "should I stay or should I go?"