Running from the Police Revisited

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Earlier this month, the court of appeals decided State v. Joe, __ N.C. App. __ (2011) (Stephens, J.). A Winston-Salem officer was patrolling a drug-infested apartment complex at 2:00 in the afternoon. The defendant was standing by the corner of a building in the complex, and when he saw the officer approach in his vehicle, his eyes “got big” and he walked behind the building. The officer followed, and the defendant ran. The officer chased him for several blocks, caught him, and arrested him. The officer found a bag of crack cocaine nearby.

The defendant was charged with resisting, delaying, and obstructing the officer; with PWISD cocaine; and with being a habitual felon. He moved to suppress the drugs and to dismiss the R/D/O charge, arguing that his flight from the officer didn’t justify the officer’s decision to arrest him. The trial judge granted the motion, suppressed all evidence from the arrest, and dismissed the R/D/O charge.

The state appealed, and the court of appeals affirmed the dismissal of the R/D/O charge. Initially, it agreed with the state that “[t]here is simply no authority in Chapter 15A of the General Statutes that authorizes dismissal pre-trial [based on] the sufficiency of the evidence,” but it said that the state could not rely on that argument because it had acquiesced in the trial judge’s decision to consider the motion to dismiss. On the merits of the dismissal ruling, the court followed State v. Sinclair, 191 N.C. App. 485 (2008), which held that a suspect’s flight from a consensual encounter does not provide probable cause to arrest the suspect for R/D/O.

As an aside, Sinclair is one of my favorite cases of all time, because it involves a defendant with the street name of PooSack. If you’ve been involved in a case where the defendant had a nickname that bad, feel free to share it in a comment.

Returning to Joe, The court of appeals also construed a somewhat confusing exchange between the prosecutor and the trial judge as being an oral dismissal by the state of the drug and habitual felon charges. Accordingly, it refused to consider the state’s appeal of the suppression issue, because there were no charges remaining in connection with which the suppressed evidence could be introduced: R/D/O was dismissed by the court, and the remaining charges by the state. The lesson for prosecutors is that when a judge grants a motion to suppress, don’t dismiss the charges unless you are sure that you aren’t going to appeal the decision.

The defendant probably caught a break in this case, because I doubt that the court would have affirmed the suppression order. Although the defendant was free to avoid or decline a consensual encounter with police, by running away from the officer, he almost certainly provided reasonable suspicion to support an investigative stop. (See my prior post here about running from the police.) The Sinclair case made this distinction when it noted that the “Defendant’s . . . flight may have contributed to a reasonable suspicion that criminal activity was afoot thereby justifying an investigatory stop,” even though it did not amount to R/D/O.

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8 comments on “Running from the Police Revisited

  1. You got me on that one, years on the street and I can not think of a better AKA then POOSACK in teh sinclair case.

  2. While I’ve not had any cases nicknames THAT good, I have had cases with Oatmeal and Lunchbox (co-defendants, by the way), Stank, BoomerClyde (which I can only assume is a corruption of Puma Clyde from when Clyde Drexler played for the Trailblazers and Puma released a shoe called the ‘Puma Clyde’) and my personal favorite: KaBoobie.

  3. “Although the defendant was free to avoid or decline a consensual encounter with police, by running away from the officer, he almost certainly provided reasonable suspicion to support an investigative stop.”

    I am a bit confused here. Is “reasonable suspicion” a crime in North Carolina? The officer charged the defendant with R/D/O of…?

    If the defendant running in the presence of a police officer aroused a reasonable suspicion that criminal activity was taking or had taken place, there was no actual crime at the time of the flight.

    The charge of resisting would also be in question. If the defendant ran and the officer did not communicate that the defendant was being placed under arrest, how could he resist something he had no knowledge was occuring?

    As for delaying and obstructing an investigation, the officer’s choice of commands would be called into question. Did the officer communicate to the defendant that he was to be placed under investigation for “reasonable suspicion” of alleged criminal activity? If not, how could the defendant possibly know he was obstructing or delaying an investigation when he had no knowlege that an investigation was being requested?

    It almost seems to me that police officers are using the charges of R/D/O ex post facto in the sense that running is a legal activity while running from criminal activity is not. Reasonable suspicion of criminal activity is not a crime in itself. how, therefore, can running at the sight of a police officer and arousing reasonable suspicion that warrants an investigation be considered as resisting an arrest(if the officer during the pursuit doesn’t communicate to the defendant that he is being placed under arrest) or delaying and obstructing an investigation(there again, if the request for investigation is not communicated before or during the pursuit)?

    Once the defendant is apprehended, informed of an arrest and investigation and an actual crime is established, any actions thereafter could be determined as R/D/O. However, all of the defendants actions preceding the apprehension should be protected under the United States constitution in my opinion.

    In the end, I neither justify criminal activity nor running from a police officer. However, I want to preserve the safety of my children as they age by ensuring that if they take off running down the street some day and a police officer happens to be present, they are not, at worse, shot or, at best, arrested for R/D/O.

  4. Two thoughts on this post:

    1. I know this is a blog, and the word “blog” kind of implies a less formal forum than a law review or journal, but still, this is a digital publication of the UNC SOG, a highly esteemed institution. For that reason, it seems inappropriate to turn it into a forum for making fun of defendants and witnesses nicknames. Yeah, the world of criminal law has its lighter side, and we’ve all had some belly laughs from crazy cases, but airing that in a serious post just seems crass.

    2. You characterize the apartment complex as “drug infested.” Was that a finding of fact from the case, or simply a loaded phrase that you used to help support your conclusion in the last paragraph that running from the police would support an investigatory detention? (since we all know that either running OR “high crime area” standing alone, would not support a Terry stop.)

    However much crime there is, it remains that the site of this case was an apartment complex, a place where a lot of people live. So here’s a guy standing around, who sees officers, and decides to take off. Period. He “caught a break,” you say? I don’t know about that. Seems like a pretty solid basis for suppression.

    • Here’s what the court said about the apartment complex, word for word: The officer’s job was to patrol “high crime areas.” At the time of the incident in question, he “was patrolling the Greenway Avenue Homes apartment complex . . . . He had personally made ‘no less than 10 drug arrests’ in that area, including one that month, and had assisted with ‘no less than 50 of those same type[s] of investigations in that area.’ [The officer] was aware of citizen complaints ‘mainly [for] illegal drugs’ in
      the apartment complex.”

      • One drug arrest that month, 10 drug arrests and 50 investigations over an unspecified period of time? Probably similar to the local high school or shopping mall. As anyone who works in criminal court knows, any police beat can be characterized as “high crime.” The question is whether we as lawyers and proponents of the constitution believe that this “high crime” status creates a de facto “almost reasonable suspicion” as to any pedestrian in the area.

  5. If the drugs were found nearby, apparently the defendant abandoned them before the arrest. If that is the case, why would the court suppress the drugs? At least under Federal law, chasing a defendant is not a seizure, so there should not be any suppression if he abandoned the drugs as a result of the officer chasing him. The prosecution would still have the burden of proving that the defendant possessed the drugs, but that is an entirely different matter than the issue of suppression.

    • Good point. Under a Hodari analysis, you’re definitely right. I didn’t bring that up because this blog entry focused more on the dynamics of high crime + running = RS (in addition to the odd procedural path this case followed to dismissal).

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