Revisiting State v. Jackson, the Pedestrian Evasion Case

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Last summer, I wrote about State v. Jackson, __ N.C. App. __, 758 S.E.2d 39 (2014), in which the court of appeals ruled that an officer lacked reasonable suspicion to stop a pedestrian who engaged in what the officer viewed as suspicious and evasive behavior. Last month, the state supreme court reversed the court of appeals. The opinion is here; my summary and analysis of it is below.

Facts. The case arose at 9:00 p.m., when a Greensboro officer saw the defendant and another man talking outside a convenience store. The store was a frequent site of drug transactions, and the officer was familiar with both men from prior investigations. When the pedestrians saw the officer, they split and began walking away in opposite directions. The officer continued driving past the store, made a U-turn, and came back. The same two men were talking again outside the store. As the officer began pulling into the store’s parking lot, the men again separated and began walking in opposite directions. The officer detained the defendant, obtained consent to search, and found a gun.

Trial court. The officer charged the defendant with being a felon in possession of a firearm. The defendant moved to suppress, arguing that the officer lacked reasonable suspicion for the stop. A superior court judge denied the motion and the defendant pled guilty, reserving the right to appeal the motion.

Court of appeals. The court of appeals reversed. It acknowledged that presence at a location known for drug activity, combined with evasive action, can provide reasonable suspicion. But it held that “merely walking away from one’s companion in the presence of law enforcement officers” does not amount to evasive action. Judge Dillon dissented.

North Carolina Supreme Court. The state supreme court reversed the court of appeals unanimously. The opinion doesn’t attempt to announce any new legal rules or principles. It simply, and briefly, concludes that the facts provide reasonable suspicion, emphasizing that the events took place at a “specific location known for hand-to-hand drug transactions” and that the defendant and his interlocutor “walked apart a second time” upon seeing the officer.

United States Supreme Court? I don’t think a cert petition has been filed in this case, though there’s still plenty of time for the defendant to do so if he wishes. The case is rather fact-bound so it may not make a strong candidate for Supreme Court review.

Analysis. As I see it, the factors supporting reasonable suspicion here were (1) the location, (2) the pedestrians’ decision to walk away as the officer approached, (3) the fact that the pedestrians went in opposite directions, and (4) the fact that they reconvened when the officer left, and separated again when the officer returned. I think (4) is the key.

As to (1) and (2), walking away from a law enforcement officer, even in a high crime area, generally isn’t enough to provide reasonable suspicion to support an investigative stop. See, e.g., State v. Fleming, 106 N.C. App. 165 (1992) (officers patrolling housing project lacked reasonable suspicion to stop pedestrians who walked away from them, as it was “neither unusual nor suspicious that they chose to walk in a direction which led away from the group of officers”); United States v. Beauchamp, 659 F.3d 560 (6th Cir. 2011) (“[W]alking away from an officer does not create . . . reasonable suspicion.”).

For the sake of completeness, I will add that when the decision to walk away is prompted by making eye contact with the officer, reasonable suspicion may be present under State v. Butler, 331 N.C. 227 (1992). And of course, headlong, unprovoked flight from an officer may support reasonable suspicion. Illinois v. Wardlaw, 528 U.S. 119 (2000).

As to (3), the fact that two individuals walked in different directions as police approach also is generally insufficient to establish reasonable suspicion. Brown v. Texas, 443 U.S. 47 (1979) (no reasonable suspicion where officers “observed appellant and another man walking in opposite directions away from one another in an alley”); Duhart v. United States, 589 A.2d 895 (D.C. Ct. App. 1991) (“Neither does the . . . fact . . . that appellant and the other person began walking in opposite directions as the officer approached, add to a finding of reasonable suspicion.”).

Thus, it strikes me that it is the fourth factor, the reconvening of the pedestrians and their decision to walk away from one another again when the officer returned, that most strongly supports the court’s finding of reasonable suspicion. That factor suggests that the pedestrians had some business with one another that they wanted to conduct, but did not want a police officer to see. If I were to try to distill a rough legal rule from Jackson, it would be that a person who walks away from an officer once is just going about the person’s business, while a person who walks away from an officer twice in quick succession is suspiciously evasive.

5 comments on “Revisiting State v. Jackson, the Pedestrian Evasion Case

  1. Jeff I respect your opinion and expertise in the law, but I have to disagree with your analysis of this case. I was the trial judge for this case who heard the suppression motion and entered the order denying the motion to dismiss. You opined that your number (4) was the key to the decision, the fact that they reconvened when the officer left, and separated again when the officer returned. While you are partially correct, it was facts (1) the location, (2) the pedestrians’ decision to walk away as the officer approached, (3) the fact that the pedestrians went in opposite directions as well as a number of other facts I placed in the order. My order consisted of 25 uncontested facts that formed the basis for this investigatory stop. An officer needs reasonable suspicion to make an investigatory stop. Reasonable suspicion is determined by the totality of the circumstances. It is the totality of circumstances in this case, not just one fact, that I based my decision. In addition I relied upon State vs. Watkins, 337 NC 437, 441 (1994) where the North Carolina Supreme Court held “Reasonable suspicion requires [t]he stop must be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training. The only requirement is a minimal level of objective justification, something more than an “unparticularized suspicion or hunch.” As far as suppression motions go, I did not think this was a particularly difficult case to determine, and I am still puzzled why my order was overturned by the COA.

    • I didn’t mean to suggest that (4) alone was sufficient, rather that (1) through (3) alone might not be sufficient — i.e., that (4) is what put the case “over the top.” It is true that it is always the totality of the circumstances that matters, but I wish the state supreme court had said a bit more regarding which specific circumstances it found significant.

    • Judge, thanks for taking the time to respond to this, it provides a bit more in-depth information to what we received during our annual in-service training this year at my agency.

  2. jeff, what about the fact that the officer was familiar with both men through prior investigations? Do you think this could be a factor also?

  3. In my career in law enforcement, I have made a lot of stops based on the totality of the circumstances. The time, place and the history of the location are often the main bases for the stop. The article indicates that the location was known to the officer as a place narcotics are sold (history), the officer knew the males from prior investigations (criminal history) the males separated when observing the officer (activity associated with drugs), the males return to eachother as the officer is out of view turning around (suspicious activity), the males separating again when the officer returns (suspicious activity. The officer stops the defendant and obtains CONSENT to search and finds a gun. Sounds like pretty good police work to me. The TOTALITY of the circumstances is absolutely Reasonable Suspicion. I don’t know wthat Court of Appeals was thinking to reverse the trial judge’s decision, but with the facts as I read them to be, the COA made a mistake.

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