I was teaching a class about charging documents recently when the conversation turned to the rule that a charge of resisting, delaying, or obstructing a public officer in violation of G.S. 14-223 must describe the particular duty that the officer was discharging at the time of the resistance. A member of the class asked whether it would suffice to describe the duty as “protecting and serving.” I gave my best guess about the answer but I thought I would see how others react to the question. So take the poll below, then read the rest of the post for a little history about the rule, a summary of a recent case, and a discussion of authority about the sufficiency of a general description like “protecting and serving.”
Tag Archives: resisting
Running from the Police Revisited
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.
False Names and Identity Theft
[Editor’s note: Regular readers will notice two changes to the blog today. One, for the first time, my posts have a byline. Two, a photograph of the author now appears next to each post. Both changes are intended to make it more obvious who wrote what, so that questions and comments can be accurately directed, and blame and credit can be appropriately attributed.]
Under G.S. 14-113.20, our identity theft statute, it is a felony to use “identifying information of another person” in order to make fraudulent financial transactions or to “avoid legal consequences.” So, for example, it would be illegal for you to use my credit card number to order some new shoes from Zappos, because credit card numbers are “identifying information.” G.S. 14-113.20(b)(5).
A question that I’ve had several times is whether a person’s name is “identifying information.” The issue seems to arise most often when a person is stopped by police, is asked to identify himself, and gives another person’s name, perhaps because giving his real name would allow the police to discover that the person is the subject of an outstanding arrest warrant. It certainly seems that the person is attempting to avoid legal consequences, but is he using “identifying information of another person” in order to do so? In other words, may he properly be charged with identity theft?
I tend to think so, although the answer isn’t completely clear. To some, it may seem obvious that a person’s name is quintessential “identifying information.” After all what is more often used to identify a person than his or her name? But “identifying information” is a statutorily defined term, so the proper analysis starts not with common usage but with the definition of “identifying information” in G.S. 14-113.20(b). The term is defined as including a list of fourteen items, including things like social security numbers, bank account numbers, and passwords. The list specifically includes “electronic mail names,” “digital signatures,” and “[p]arent’s legal surname prior to marriage,” but it doesn’t include “names” generally, and none of the enumerated items fit the false name scenario above.
However, the statute also contains G.S. 14-113.20(b)(10), a catchall provision that includes “[a]ny other numbers or information that can be used to access a person’s financial resources.” A person’s name can be used to access their financial resources, so it seems to fit within the catchall. The counter-argument is that when the General Assembly chose to include “electronic mail names,” “digital signatures,” and “[p]arent’s legal surname prior to marriage” within the definition of “identifying information,” it implicitly chose not to include names more generally, so the catchall should not be interpreted in a way that is inconsistent with that choice.
I tend to think that a person’s name is “identifying information” because it falls within the catchall, based mainly on the plain language of the statute and slightly, by analogy, on the federal identity theft statute, 18 U.S.C. § 1028, which defines “means of identification” to include a person’s name. I think that the argument about the General Assembly’s implicit exclusion of names generally is too speculative. But I’m sure that others view the issue differently, perhaps including some of my colleagues. The court of appeals expressly declined to decide the issue in State v. Barron, __ N.C. App. __, 690 S.E.2d 22 (2010).
Finally, I should note that the conduct in the example clearly constitutes resisting, delaying, or obstructing an officer, so it is certainly criminal, whether or not it amounts to identity theft.
You Can Run, But You Can’t Hide
I did a little research yesterday morning about running from the police. It started when, in connection with a presentation for which I was preparing, I reviewed State v. Mewborn, __ N.C. App. __, 684 S.E.2d 535 (2009). Mewborn arose in Kinston. Officers were “patrolling a high crime neighborhood” and specifically, were “approaching and questioning people in the neighborhood to ‘make sure [the people were] in the right area.'” When the officers approached the defendant and asked him to “hold up for a minute,” the defendant took off running. The officers gave chase, caught the defendant, and determined that he was in possession of drugs and a gun.
Although it wasn’t directly the issue in the case, I started wondering if fleeing from the police always provides reasonable suspicion for a Terry stop. In other words, if you run from police, can they always give chase?
The answer is basically yes, but with a few caveats. What follows is a list of cases in this area, then my short synthesis of the law.
- Illinois v. Wardlow, 528 U.S. 119 (2000) (presence in a high crime area, coupled with unprovoked “headlong flight” from police provides reasonable suspicion)
- State v. Butler, 331 N.C. 227 (1992) (presence at a known drug corner where several recent arrests have been made, coupled with turning and walking away as officers approach provides reasonable suspicion)
- State v. Sinclair, 191 N.C. App. 485 (2008) (presence in a “drug activity area,” then running after declining an officer’s request to search “may have contributed to . . . reasonable suspicion”)
- In re J.L.B.M., 176 N.C. App. 613 (2006) (juvenile’s decision to walk away from approaching patrol car insufficient to provide reasonable suspicion)
- State v. Fleming, 106 N.C. App. 165 (1992) (presence in high drug area plus decision to walk away from police did not give rise to reasonable suspicion)
- United States v. Jones, 584 F.3d 1083 (D.C. Cir. 2009) (stating in dicta that “[m]erely walking away, even quickly . . . upon the arrival of the uniformed police officer would not provide articulable suspicion”)
- Jewett v. Anders, 521 F.3d 818 (7th Cir. 2008) (flight from police at Wal-Mart plus a report that a suspect in an attempted murder was at the Wal-Mart amounted to reasonable suspicion)
- United States v. Bonner, 363 F.3d 213 (3rd Cir. 2004) (passenger’s flight from traffic stop supports Terry stop of passenger)
Now for the synthesis: (1) It isn’t clear whether running from police, all by itself, provides reasonable suspicion. (2) But running from police combined with any other circumstance that provides even a minimal amount of suspicion is enough. Thus, in Wardlow, running plus presence in a high crime area was enough. In Jewett, running plus a report of a fugitive being in the vicinity was enough. And I would expect, for example, that running plus having a substantial known criminal record would be enough. Since an officer will almost always be able to point to some factor other than flight as a basis for suspicion, it isn’t surprising that there’s no case on flight alone. (3) Walking away is much less suspicious than running. In California v. Hodari D., 499 U.S. 621 (1991), Justice Scalia famously quoted Proverbs 28:1 — “The wicked flee when no man pursueth” — to suggest that flight is an important factor in the reasonable suspicion calculus. But the Court has also often noted that citizens are free to ignore the police and go on about their business. Walking away from a potential encounter with police is closer to going about one’s business, and is farther from the “headlong flight” described in Wardlow. For this reason, I think that Butler is a borderline case, and if I were an officer, I would be hesitant to stop a person who calmly walked away from me absent significant additional indicia of suspicion.
As a aside, there’s a little body of case law on whether the flight of a person’s companion’s tends to provide suspicion justifying a stop of the person. Although it isn’t as strong an indicator as an individual’s own flight, most cases find that the flight of a companion provides at least some basis for suspicion. See, e.g., State v. Mello, __ N.C. App. __, 684 S.E.2d 483 (2009) (majority and dissent disagreeing about this to some extent); United States v. Edmonds, 240 F.3d 55 (D.C. Cir. 2001).
Finally, although unprovoked flight may give rise to reasonable suspicion, it doesn’t constitute resisting, delaying, or obstructing an officer, at least not unless and until the officer orders the fleeing person to stop.