"To flee, or not to flee": the implications of Illinois v. Wardlow on the practice of criminal law in Florida.

• Author: Jarret, Joseph G.
• Position: U.S. Supreme Court

The Court opted for a "totality of the circumstances" test to determine whether law enforcement officers are justified in stopping a person who flees upon encountering them.

The issue of whether the flight of a person, upon encountering law enforcement, constitutes an indicia of guilt or criminal activity, has long been the subject of much debate and litigation. Indeed, quite often you will find that when faced with the issue of how to interpret a person's flight upon the arrival of law enforcement, criminal justice scholars quickly split into two polarized factions: One faction will insist that it is an accepted axiom of criminal law that "the wicked flee when no man pursueth," while the other faction will assert with equal fervor that "the righteous are as bold as a lion."[1]

The U.S. Supreme Court was asked recently to side with one of the aforementioned factions. In Illinois vs. Wardlow, No. 98-1036, the State of Illinois asked our highest court to announce a "bright-line rule" that would serve to authorize law enforcement to temporarily detain anyone who flees at the mere sight of a police officer. Attorneys for the respondent likewise sought a "bright-line rule," albeit one that would serve to hold that the fact a person takes flight upon encountering law enforcement can never, in and of itself, justify a temporary investigative stop of the ilk permitted in the landmark ruling of Terry v. Ohio, 392 U.S. 1 (1968).[2] Rather than adopting either party's per se rule, the Supreme Court opted for what can best be categorized as a "totality of the circumstances" test, in determining whether law enforcement officers are justified in stopping a person who flees upon encountering them.[3] The fallout of the Supreme Court's ruling will, in all likelihood, prove to be most significant in terms of the objective limitations on the broad powers granted to law enforcement.

The facts of Wardlow are fairly straightforward: Wardlow fled upon seeing police officers patrolling an area known for heavy narcotics trafficking and other illicit activities. Two officers gave chase, overtook Wardlow, and patted him down for weapons. The officers found Wardlow to be in possession of a .38 caliber handgun and subsequently arrested him. The stop, according to Chief Justice Rehnquist, who delivered the opinion of the Court, did not violate the Fourth Amendment to the U.S. Constitution.[4]

The Illinois trial court denied Wardlow's motion to suppress, ruling that the...