North Carolina Criminal Law NC Criminal Law

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.