Facts.
For no specified reason, patrolling officers Lunge and Escoria decided to drive into an apartment complex parking lot where they observed defendant and two other men standing next to a Mercedes parked under a covered stall in the rear of the complex. As the officer's unmarked vehicle approached, the men dispersed. Defendant walked around the perimeter fence and into an adjacent open field where he was apprehended shortly thereafter.
Upon being detained, appellant duly informed the police that he was under a probationary search condition. No keys to the car were found on him, on the others or in the area around the car. However, based on defendant's search condition, Lang decided to search the Mercedes. Inside the unlocked car, the police observed and then retrieved a gun box containing a .45 calibre gun with magazine clips. They also retrieved 107 grams of marijuana.
At trial, defendant moved to suppress the evidence on the ground that his detention violated the Fourth Amendment.
At the hearing the police testified that they had not received any reports of presently occurring crime and that, on driving into the complex, they had no reason to suspect defendant of anything. However, according to Lunge the men “appeared to be shocked that we were there and they just kind of started stepping away from the vehicle a little bit.” Appellant “rapidly walked towards the rear of his vehicle and then went around the corner of the parking stall which ha[d] a side wall on it.” Lange could point to no criminality taking place. He testified, however, that he was “struck” by the fact that the car “had no license plates [sic] on it.” He also noticed that “the vehicle was parked a little odd. It was parked between two different parking stalls, not properly parked in one stall as if you were a resident you would park in a single stall.”
The trial court upheld the search ruling that the police had a reasonable suspicion to detain appellant. The court relied on three found factors: (1) the apartment complex qualified as a high crime area; (2) the vehicle was not parked correctly; and (3) appellant walked away briskly These factors, the court ruled, warranted the police to “at least stop and ask and make a determination what if anything or if nothing is going on in this area.”
Issue: Did Defendant's so called “flight” from the officers comprise a justifiable reason for detaining him?
Argument: No.
Lange's detention of appellant was without legal cause because he failed to articulate any facts amounting to a reasonable suspicion of possible criminality afoot as set forth in Terry v. Ohio (1968) 392 U. S. 1
1. Lange had failed to articulate facts which would support his conclusory characterization of the complex as a “high crime area.” According to Lange, in his 14 years of patrolling he had been in the complex “no less than 10 times” by which he must be understood to have meant a some few number of times. Ten times in 14 years amounts to 0.0019% of Lange's professional career and was an insufficient basis on which to draw any reliable conclusions as to the crime characteristics of the complex.
2. Assuming for the sake of argument that the complex was in fact a “high crime area” , “a 'high crime area' factor is not an 'activity' of an individual.” (People v. Bower (1979) 24 Cal.3d 638, 645.) Under caselaw the “high crime area factor” is given weight when a location's reputation for a specific type of criminality is matched with similar, specific conduct by the person who thereby becomes suspect. Otherwise, "mere presence in a high crime area is not, standing alone, 'sufficient to justify interference with an otherwise innocent-appearing citizen ....'” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
3. The salient fact of the case was that no criminally suspicious activity was observed. “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (United States v Cortez, supra, 449 U. S., at p. 417.) But Lunge admitted that he pulled into the complex simply “to take a look around.” Once looking around, he supposedly noticed missing plates on a badly parked car. {coff} Putting aside whether Lange could have actually have noticed that both license plates were missing when he approached the parked vehicle from the rear, the legal fact remains that Veh. Code, section 5200, subd. (a) [requiring plates] only applies to vehicles “while being operated” or held for sale. (Veh. Code, § 5202, subd. (a).) There was no evidence that the vehicle was being held for sale and it obviously was not being operated. There was therefore no objective factual basis for a detention based on an evident illegality (Whren v. United States (1996) 517 U.S. 806, 813.)
4. Given the dirth of specific, articulated facts to support a reasonable inference of suspect behavior, the sole remaining basis for defendant’s detention was his so-called “flight” upon seeing officer's unmarked vehicle. Consistent with established Terry principles, the California Supreme Court has held that furtive behavior can be “a key factor-in determining whether in a particular case the police have sufficient cause to detain.” (People v. Souza (1994), 9 Cal.4th 224, 235.) However, Souza specifically rejected the claim that “a person's evasion of police by running away or by driving away is, regardless of the surrounding circumstances, sufficient to draw an inference of criminal activity on the part of the fleeing person.” (Id, at p. 238.)
5. Last but not least, it is (supposedly) settled that, absent an order to the contrary, individuals have a constitutional right to "to disregard the police and go about his business," (Florida v. Bostick (1991) 501 U.S. 429, 434 California v. Hodari D., 499 U.S. 621, 628.) To detain defendant because he walked away punished him for his exercise of a constitutional right.
Court of Appeal
The Court of Appeal rejected appellant's arguments, holding that “Defendant was in a high-crime area known for stolen cars, gang activity and shootings, and fled the area after making eye contact with the officers. The combination of these same characteristics was sufficient to support a reasonable suspicion of criminal activity in Illinois v. Wardlow. (Illinois v. Wardlow, supra, 528 U.S. at p. 124 [“In this case, moreover, it was not merely respondent’s presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion, but his unprovoked flight upon noticing the police”].)”
The court of appeal, added, “It is a matter of common knowledge that automobile thieves often switch license plates from one car to another in order to conceal the identity of the stolen vehicle.” (People v. Galceran (1960) 178 Cal.App.2d 312, 316.)”
Critique
The appellate court was wrong. Galceran involved an operated car whose produced registration did not match the plates. In this case there was no evidence of possible switching. Moreover Lange never testified that he suspected the vehicle was stolen. It is not reasonably possible to uphold a suspicion which did not arise.
The appellate court was also wrong to state that such a “combination” of factors was relied upon in Wardlow. Wardlow did not involve any indicia of stolen cars, gangs, shootings, drugs, prostitution, burglaries or whatever. It involved the single factor of flight in a summarily designated “high crime area” (whatever that might specifically referred to).
Nevertheless, it is difficult to criticise the Court of Appeal's decision inasmuch as – putting aside static at the edges – it was a straightforward application of Wardlow's rule. Rather a criticism of disgust has to be registered against the Supreme Court's subversion of the Fourth Amendment and its perversion of the English language. Wardlow is the culmination of Rehnquist, C.J.'s fetid, cancerous juriscrudence.
The rotten denouement of the Court's deconstruction of the Fourth Amendment is that, while a citizen has a supposed right to disengage from an encounter with the police, the police can use that fact as a suspicious circumstance on which to detain him. (In factual reality, they can also use “that fact” as grounds to gun him down. No murmuring will be heard from the bench. )
The decision in Wardlow contained two components: (1) the basis for a police approach and (2) the right of the individual to desist from that approach.
Early American decisions both before and immediately after Independence held that common rumor or report, suspicion, or even strong reason to suspect was not adequate to support a warrant for arrest. Henry v United States (1959) 361 U.S. 98, 102. Little distinction was drawn between an “arrest” and a “detention;” after all, the words mean the same thing. If a person was “stopped from going on his way” he was “seized” for purposes of the Fourth Amendment. For near two hundred years after the adoption of the Constitution, police officers were permitted to effect arrests or searches without warrants only “when the facts within their personal knowledge would satisfy the constitutional standard of probable cause.” (Terry v. Ohio, supra, 392 U. S. 1 [Douglas, J., dissenting].)
Probable cause meant facts and circumstances which were sufficient (and sufficiently) reliable to warrant a prudent man in believing that the person in question had committed or was committing an offense. (Brinegar v. United States (1949) 338 U.S. 160, 175-176.) Probable cause did not require proof beyond doubt but rather (as the word probable might indicate to a reasonable jurist) information and evidence preponderating toward a conclusion of guilt. In all events, it was something more than a “mere suspicion”
In 1968, the “liberal” Warren Court, rewrote the Fourth Amendment, ruling that a person could be “temporarily detained” for further “investigation” on “reasonable suspicion” that he was committing or was about to commit a crime. In Terry v. Ohio, the court held that held was that, having approached three Negro boys who were acting “suspiciously” on a street corner, Officer McFadden could lay hands on them, spin them around and — for his personal safety only — search them for “possibly” or “assumedly” carrying weapons. (There were no facts whatsoever indicating that any of the boys were carrying a weapon, although in the event Terry was.)
In companion cases and ensuing cases, the Court affirmed in a variety of factual contexts “that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Adams v. Williams (1972) 407 U.S. 143, citing Terry at p. 22.) He may do so, without probable cause, provided he can point to specific and articulable facts which, taken together with rational inferences from those facts give rise to a suspicion that the individual is involved in criminal activity. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 881-882; Brown v. Texas (1979) 443 U.S. 47, 51.)
Eight years later, the Court lowered the bar below zero by announcing that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” (Florida v. Royer (1983) 460 U.S. 491.) Nor, said Royer, would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. (Citing United States v. Mendenhall, 446 U.S. 544, 555 (1980) (opinion of Stewart, J.). )
Since this was exactly what Officer McFadden had done in Terry (“ approached the three men, identified himself as a police officer and asked for their names”), the Court had to come up with some bullshit to cover up the trashing of the Fourth Amendment and gave miscarriage to the consensual encounter doctrine, viz:
The person approached, however, “need not answer any question put to him; indeed, he may decline to listen to the questions at all, and may go on his way.” [Citing Terry] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citing . Mendenhall]. But, If there is no detention ... then no constitutional rights have been infringed. “ (Royer, [460 U.S. 498]; Florida v. Rodriguez, (1984) 469 U.S. 1, 5-6. [initial contact between the officers and respondent, where they simply asked if he would step aside and talk with them, was clearly the sort of consensual encounter that implicates no Fourth Amendment interest.'].)
“Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," (California v. Hodari D., (1991) 499 U.S. 621, 628 , the encounter is consensual, and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” (Florida v. Bostick (1991) 501 U.S. 429 [“free to go” even when seated next to window on bus].)
In Illinois v Wardlow Kafkaesque Irreality became the Orwellian Nightmare. In that case, the police, in an unmarked vehicle, were patrolling a “high crime area” known for narcotics dealing. They noticed defendant standing and holding an “opaque bag.” The defendant looked at them and ran away. The police gave chase and ultimately apprehended him. The Illinois Supreme Court ruled that the police had lacked even a reasonable suspicion under Terry. Rehnquist, for the majority, reversed.
“An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” However, “unprovoked” and “[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion” which is “is certainly suggestive” of wrongdoing."
Thus while the police are “free” to approach you without any reason at all, if you exercise your right not to engage in a consensual encounter, that fact can be used to detain you. At this point, we must leave “law” and turn to “language.” Bad language makes for bad law and the Supreme Court's English is atrocious.
The word “flight” denotes “the act of running away, to escape or from expected evil; hasty departure.” (Webster's Revised Unabridged Dictionary (1913) p. 570 [italics added].) The word “evade” [from e (away) + vadere (go)] means “the act of avoiding somebody or of avoiding something that you are supposed to do” from e (out/away)+vadere (to go) In other words, the cornerstone of Rehnquist's ruling was a redundancy which ignored the true meaning of words.
The significance of flight – when it occurs – is that it evinces an apprehension of danger and – when the danger consists in getting caught in wrongdoing – it reflects a consciousness of guilt. (People v. Mason (1991) 52 Cal.3d, 909, 943) The word flight is not a description but an inference drawn from facts and circumstances as to a given person's state of mind. What a person does in any given case is to run, walk, skip, amble, shuffle, skulk, slouch, in a direction away from some other point. The word flight expresses a conclusion as to why he does so. An inference of flight “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” (People v. Ray (1996) 13 Cal.4th 313,345.)
However, Wardlow itself previously stated that presence in a high crime area was not in itself suggestive of criminality and the majority opinion never once mentioned any other fact or circumstance from which a pre-existing or predicate supposition of wrongdoing might be inferred.
In Sibron v. New York (1969) 392 U.S. 40 – the companion case to Terry – the court itself stated that “deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.”(Id., at p 66.)
In Wardlow there was no coupling. Rehnquist simply seized on the ambiguous usage of “flight” to make it, in and of itself, a sufficient justification for a detention. But in and of itself “flight” in the sense of running away means nothing. The majority in Wardlow understood that fact which is why they packaged emptiness with meaningless rhetorical embellishments like “headlong” and “unprovoked.”
What on God's earth does “unprovoked” mean? Clearly, Winslow's running away was triggered by the cops' presence. If that was “unprovoked” then did the Chief Smudgist mean to say that it would have been less suggestive of guilt if Wardlow had waited until the cops laid a hand on him and then “evaded”? This sort of embellishing is just garbage.
Just as much garbage was the judicial huffing and puffing about “headlong” flight. It is a regrettable fact of Anglo-American jurisprudence that judges putty up their leaky thinking with high sounding homiletics more suitable to Bible thumpers and Puritan snits. Two hundred years ago they gave us “willful and wanton malice aforethought with a depraved and malignant heart” as an inexhaustible conundrum to tax, vex and delight the legal profession.
One could very well distinguish the present case from Wardlow on the basis that here there was no headlong flight but merely an ordinary walking away. By doing so, one could initiate a cascade of judicial literature on the contours of headlongness in the Fourth Amendment context. But in constitutional substance there is no difference between this case and Wardlow; either walking away justifies being detained or it doesn't
It is here that one comes against the appalling signficance and insidious deceit of Wardlow.
“[h]eadlong flight -- wherever it occurs -- is the consummate act of evasion” which is “is certainly suggestive” of wrongdoing."
In so writing, the Chief Smudger displayed his consumate artifice: the true lie
It is absolutely correct to say that when properly so-called “flight” occurs it is certainly suggestive of wrongdoing. It is equally true that if it is suggestive of wrongdoing it is immaterial where it occurs. Flight down the cathedral nave is still flight. But if that is the case, the fact that Wardlow's flight occurred in a “high crime area” was irrelevant. The “high crime area” was just another embellishment for effect. Pixie dust in your eye.
Of course, a high crime area is not irrelevant. It casts a certain light on conduct which would otherwise be innocuous. It is one of the factors from which one can deduced that the running or walking away is a guilty-minded flight. What Rehnquist was doing was stirring up a brew of ambiguities, tautologies and redundancies out of which to metamorphose a rule that made any act of distancing or disengaging from the police a basis for detention.
As explained, the Court had previously held that we are not obligated to stop and stand in place when “approached” by a cop. We are free to leave unless by a show of authority we are commanded to stay. According to Royer a person “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.” (Royer, supra, at p. 498 [italics added].) There was no show of authority in Wardlow. The police were in an unmarked car. Even had the car be marked, the Court in its wisdom has also held that “merely” wearing a badge and carrying a gun is not a commanding show of authority such as deprives us of our freedom to ignore the police and go about our business unimpeded.
Thus, if the defendant in Wardlow was supposed to remain put upon coming into police view, he was detained. If he could not be detained even for a moment, then he was free to leave. Rehnquist was quite aware of the contradiction. Here is how he dealt with it.
“But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business"; in fact, it is just the opposite. Allowing officers confronted [sic] 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.”
Where did “stay put and remain silent” come from? Nothing in the Court's disgraceful jurisprudence had ever gone so far as to state that the citizen must “stay put” and “remain silent” during a supposedly consensual encounter. None of the Court's previous cases talked about a right (oh quoth!) to “stay put.” What Rehnquist did was to insinuate a gloss on the rule to be picked up and turned into a holding a later date
Rehnquist ever the underhanded spewing sack of shit that he was, knew perfectly well that the phrase “to go about one's business” was an expression denoting what Justice Brandeis called, the “right to be left alone.” In turning the phrase inside out to do the work of “left off doing whatever guilty stuff he was up to” Rehnquist simply begged the question and foisted on Mr. Wardlow a presumption of guilt.
Wardlow effected yet another perversion to a jurisprudence which is a compendium of perversions: while the police can “approach” you for “no reason” you can only depart if you can show that you are going about your business; in other words prove that you are doing something innocent and not guilty.
It was said of National Socialist law that the question became not what was prohibited but what was allowed. That point was reached in Wardlow. In Wardlow, Terry devoured itself. The police need no reason to “approach” and ask questions but, even though they have no reasonable grounds to detain you, you must have the right to remain silent, while “staying put.” Given the appalling wretchedness of Wardlow, the California Court of Appeal can hardly be blamed for following the instructions, which are...
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