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Stop – Basis – Reasonable Suspicion, “Evasion and Flight”

State v. Charles E. Young, 2006 WI 98, affirming 2004 WI App 227
For Young: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Refusal to obey an officer’s command to halt reinforces extant reasonable suspicion to stop the individual:

¶73      Officer Alfredson testified that after he ordered Young to return to the car the first time, Young “turned and started walking away.” We acknowledge that people may have the right to disregard the police and walk away without giving rise to reasonable suspicion. …

¶74      Plainly, however, a person who disregards a police officer’s order assumes the risk that the officer cannot establish that he had reasonable suspicion for an investigatory stop. The person who believes he is exercising his Fourth Amendment rights by disregarding the officer may be subjecting himself to criminal prosecution if the officer has reasonable suspicion to make a stop. [20]

¶75      Young’s actions were not consistent with disregarding the police presence and going about his business. Young had remained in the car for at least five to 10 minutes. The instant Alfredson illuminated Young’s car with the spotlight, Young altered his course of conduct and got out of the car. It is improbable that the timing of Alfredson’s appearance and Young’s abrupt departure, with no word to the officer, were mere coincidence. Young’s action smacked of evasion and flight, which can properly give rise to reasonable suspicion when viewed in the totality of the circumstances. See Wardlow, 528 U.S. at 125. Thus, we conclude that Young’s evasive action, set against the above-described facts, reinforced reasonable suspicion.

Read too broadly, the meaning would be: you have the right to walk away from a “consensual” encounter – remember, the court all but says the cop didn’t seize any one at first – but if you do it’ll be regarded as “evasion and flight” and for that reason alone ground for a stop. That can’t be right, and it isn’t (though future courts may be tempted to say it is.) The court previously held that the copalready had reasonable suspicion, ¶64, and even though that holding seems like more than a stretch on the facts, it does limit this discussion on “flight and evasion.” Note the crucial qualifier in the last quoted sentence: “reinforced reasonable suspicion.” Reinforced, not created. In this sense the holding is a somewhat mundane exemplar of the idea that “police avoidance” behavior is a factor in reasonable suspicion calculus but alone isn’t enough for reasonable suspicion, e.g., State v. Alisha M. Olson, 2001 WI App 284, ¶8.

One other, factual detail: Young got out of the car, the cop ordered him back in, Young began to walk away, the cop issued a second order and then Young started running, ¶11. Once he began running his behavior could be characterized as “headlong flight,” which under Wardlow is an important factor supporting reasonable suspicion. And yet the court leaves no doubt that Young’s mere walking away, before the second order was enough:

¶76      Because Alfredson had reasonable suspicion before he issued his second command for Young to return to the car, we conclude Alfredson was acting with lawful authority when he issued this second order. Thus, there is sufficient evidence in the record for a jury to have convicted Young of obstruction.

So the court indeed is serious when it says that exercising your right to walk away from a consensual encounter exposes you to obstructing conviction.


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