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Reasonable Suspicion – Stop – Basis – Flight

State v. Kelsey C.R., 2001 WI 54
For Kelsey C. R.: Susan Alesia, SPD, Madison Appellate

Issue: Whether the police seizure of Kelsey, after she fled upon encountering them, was based on reasonable suspicion that she had committed, or was about to commit, a crime.

Holding: (Lead, 3-vote opinion:)

¶42 … Upon de novo review, we conclude that the circuit court’s determination that Kelsey’s appearance, sitting alone in a high-crime neighborhood, her demeanor, sitting in a huddled position with her hood up over her head, and her flight from the police all justified the stop is a correct application of the law. In Anderson III, we held that flight from the police, in and of itself, creates reasonable suspicion that criminal activity is afoot. 155 Wis. 2d at 84.

¶43. The totality of the circumstances here supports a finding of reasonable suspicion to detain Kelsey. The fact that Kelsey was leaning against a store-front at a time when most of the stores were closed gave the officers reasonable suspicion that something was amiss. It was dark outside, and there were few people around. Criminal activity is more likely under such conditions. A reasonable person in the officers’ position would reasonably suspect, based on the totality of these circumstances, that Kelsey had committed, was committing, or was about to commit, a crime. We therefore conclude that the investigative detention of Kelsey was reasonable.

The lead opinion concludes, alternatively, that her “flight heightened the officers’ suspicion that she was a runaway,” hence the community caretaker doctrine justified their detention of her. ¶¶45-46. (2-vote concurrence: The officers reasonably decided that Kelsey’s flight justified a citation for resisting, ¶68.)

Kelsey did not, apparently, contest the officers”>Kelsey did not, apparently, contest the officers’ authority to detain her after she fled. Certainly, an argument to the contrary would be well-nigh impossible, after Illinois v. Wardlow, 528 U.S. 119 (2000) (headlong, unprovoked flight from police in high-crime area justified temporary stop). But the lead opinion is odd in a couple of ways. First, its claim that flight alone supports a stop probably isn’t defensible after Wardlow. More oddly still, the lead opinion slips seamlessly between claims that the police had to protect Kelsey because she was a poor, vulnerable girl, herself at risk from criminals, and that they had to protect society because she was the one up to criminal mischief.

See also Interest of J.G., 2004 PA Super 385, 10/1/04 (juvenile’s presence in high crime area coupled with decision to “walk away” from police on seeing their approach insufficient for reasonable suspicion); contrast, Commonwealth v. Jefferson, 853 A.2d 404 (Pa. Super. 2004) (unprovokedflight from police in high crime area does establish reasonable suspicion). The distinction, as J.G. puts it, is that J.G. “did not immediately run away or turn away into headlong flight, but merely ‘started to walk away.'” U.S. v. Lawshea, 05-4098, 8/24/06 (“Lawshea’s flight from Officer McCord in a highcrime area just before midnight gave the officer a reasonable suspicion to stop Lawshea.”).

companion’s flight may be attributable to the non-fleeing suspect so as to support reasonable suspicion, at least where the suspect is heard at the police approach to shout something to the companion, prompting the latter’s “immediate flight.” State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶50 (also distinguishing, ¶¶48-50, State v. Jason L., 129 N.M. 119, 2 P.3d 856 (2000), which “refused to impute a companion’s evasive conduct to another individual in the context of determining whether a reasonable suspicion of criminal activity existed”).

For an interesting and increasingly frequent caselaw variant — motorist’s avoidance of a police roadblock — see U.S. v. Smith, 4th Cir No 04-4311 (court applies principles of Wardlow to roadblock-avoidance and on facts finds reasonable suspicion; court’s analysis is consistent with idea that avoidance (or “flight”) isn’t alone enough, but is merely a permissible factor):

We therefore hold that when law enforcement officers observe conduct suggesting that a driver is attempting to evade a police roadblock—such as unsafe or erratic driving or behavior indicating the driver is trying to hide from officers —police may take that behavior into account in determining whether there is reasonable suspicion to stop the vehicle and investigate the situation further.

Of course, just because flight provides reasonable suspicion for a stop and frisk doesn’t mean that it also provides the probable cause necessary for a more intrusive search of the person, see State v. Ragsdale, Iowa App No. 05-1316, 5/24/06.

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