January 13, 2000

SUPREME COURT ROUNDUP

Person's Flight Can Justify Police Stop and Search, Supreme Court Rules

By LINDA GREENHOUSE

WASHINGTON, Jan. 12 -- The Supreme Court ruled today that flight at the mere sight of a police officer could often, in the context of other factors, be suspicious enough to justify the police in conducting a stop-and-frisk search.

Although all nine justices agreed with that broadly stated view, the court split 5 to 4 on how to apply it to the facts of a Chicago case in which a man bolted at the sight of a convoy of police cars. An officer chased him down an alley and found that he was carrying a loaded gun.

The majority, in an opinion by Chief Justice William H. Rehnquist, held that the man's presence in an area known for heavy narcotics trafficking, combined with his unprovoked flight, justified the search.

The dissenters, in an opinion by Justice John Paul Stevens, said the known facts of the case were too ambiguous to justify the conclusion that the officer had the requisite level of suspicion under the Fourth Amendment's prohibition against unreasonable searches.

The decision overturned a ruling by the Illinois Supreme Court that fleeing at high speed could not provide the "reasonable suspicion" necessary to justify a stop-and-frisk search. The state court reasoned that because people have the right to walk away from an encounter with the police -- a right that earlier Supreme Court decisions have made clear -- they also had the right to leave the scene at high speed.

In its appeal, Illinois had requested a flat rule the other way: that unprovoked flight from the police always gave rise to reasonable suspicion, regardless of the presence or absence of any other element. The court today did not go that far, adhering instead to its traditional inquiry into the broader context.

"The determination of reasonable suspicion must be based on common-sense judgments and inferences about human behavior," the Chief Justice said.

The situation in the case today is one that occurs frequently in ordinary police work, and the state courts have been in considerable disarray over the circumstances under which flight from the police justifies a search. Most, including state courts in New York and New Jersey, have held that running from the police, even in a high crime area, is not enough to justify being stopped and searched by the police.

The Connecticut Supreme Court has ruled that it is.

The full import of the ruling today, Illinois v. Wardlow, No. 98-1036, will be uncertain until state courts begin applying it in actual cases. Chief Justice Rehnquist's five-page majority opinion was sufficiently cryptic to permit several shades of interpretation over how much weight to attach to the element of flight.

The majority opinion did make clear that flight alone would not automatically justify a stop, but it should be given heavy weight in any analysis. Justice Rehnquist said, "Headlong flight -- wherever it occurs -- is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such."

The Rehnquist opinion said flight was not a "mere refusal to cooperate" with the police, or an aspect of "going about one's business," but was "just the opposite." He added: "Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning."

Law-enforcement organizations that had filed briefs in the case regarded the outcome as a substantial victory. Robert T. Scully, executive director of the National Association of Police Organizations, said the decision was a victory for "effective law enforcement."

On the other hand, Prof. Barry Friedman, a criminal law expert at New York University Law School, said the decision was a "troubling indication of the court's obliviousness to what's really going on in the country." Professor Friedman said the majority opinion failed to acknowledge the growing evidence of police practices of "racial profiling" and the singling out of black people and members of other minority groups.

Justice Stevens's dissenting opinion contained lengthy references to such incidents and investigations in New Jersey, Massachusetts and other areas. "Among some citizens, particularly minorities and those resident in high crime areas," Justice Stevens said, "there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence."

The incident that led to the decision today occurred at mid-day on a Chicago street in 1995. As four police cars on narcotics patrol approached the sidewalk where he was standing, Sam Wardlow turned and ran down an alley. An officer caught him and, in a pat-down search, felt a gun in a bag he was carrying under his arm. Justice Stevens said the police officer's testimony about what actually happened was too vague to support a finding of reasonable suspicion. The decision was an application of the court's 1968 decision in Terry v. Ohio, which for the first time authorized a warrantless, brief detention and search of a person acting suspiciously but under circumstances less conclusive than probable cause to believe that a crime had been committed.

Chief Justice Rehnquist said today that "in allowing such detentions, Terry accepts the risk that officers may stop innocent people."

The majority opinion was joined by Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas. Justices David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer joined the dissent.

These were among the court's other actions today:

Appeal Rights

The Court ruled, 9 to 0, that criminal defendants do not have a constitutional right to represent themselves on appeal. The decision, Martinez v. Court of Appeal, No. 98-7809, upheld a ruling by a California appellate court.

The case was somewhat unusual in that a California prison inmate, convicted of embezzlement and serving a sentence of 25 years to life under the state's three-strikes law, filed his own Supreme Court appeal on the representation issue and persuaded the justices to take his case. But that was as far as the court went; it appointed a lawyer, Ronald D. Maines, to represent the inmate, Salvador Martinez.

The basis for the debate on the right of self-representation was a 1975 Supreme Court decision, Faretta v. California, which gave criminal defendants the right to represent themselves at trial.

Writing for the Court today, Justice Stevens said the historical analysis that supported the 1975 ruling did not apply to appeals, which were not available under common law and, although provided for by law in the state and federal systems today, are not guaranteed by the Constitution.

Justice Stevens said states were "clearly within their discretion" to conclude the government's interest in the integrity, efficiency and fairness of the appellate proceeding outweighs the inmate's interest in acting as his own lawyer.

Parents' Rights

The justices displayed a lively interest during an argument on whether a state can constitutionally permit grandparents or others to petition for the right to visit with a child over the objection of parents who have not been shown to be unfit.

The Washington Supreme Court declared that state's law unconstitutional; all states have some form of "grandparents' visitation" law, although the Washington law, permitting petitions by any third party, was one of the broadest.

In fact, the law was "breathtakingly broad," Justice O'Connor told Mark D. Olson, the lawyer for grandparents, Jennifer and Gary Troxel, who are seeking visitation with the children of their late son, Natalie, 10, and Isabelle, 8.

Most of the justices appeared troubled by the law but, at the same time, appeared unready to give full endorsement to the argument of Catherine W. Smith, representing the children's mother, Tommie Granville Wynn, that in the absence of evidence that children are being harmed, the parents should have an absolute veto power over who gets to see them. The case is Troxel v. Granville, No. 99-138.