INTRODUCTION
Why do people
run from the police? Many American's believe there is only one reason- they
are guilty of something. They think someone runs from the police because they
have done something illegal, are doing something illegal, or are about to do
something illegal. This belief is probably shared by many police officers throughout
the United States.(1) But in the United States
there may be reasons why a person may run from the police even when they are
doing nothing wrong and have nothing to hide.(2)
This note focuses on the reasons innocents run from the police. Specifically,
this note attempts to explain why minorities, in particular black males, run
from the police when they have nothing to hide. It also raises qustions about
the attachment of reasonable suspicion to the act of running from the police.(3)
The Fourth Amendment protects citizens from unlawful searches and seizures.(4) For the police to lawfully seize a person they must possess either an arrest warrant(5), properly issued by a magistrate, or probable cause to arrest under circumstances in which obtaining a warrant would be difficult or impossible to obtain.(6) Reasonable suspicion also allows temporary detentions which are not a full-blown seizure but fall within the scope of the Fourth Amendment.(7) Reasonable suspicion requires a lower quantum of proof than probable cause to justify the temporary seizure of persons.(8) The courts however, provide the police officer with less discretion in terms of the scope and length of the temporary seizure. (9) One criticism of this reduced standard concerns the difference in the quantum of proof for judges to issue a warrant, probable cause, and police officers to conduct a seizure on reasonable suspicion or no suspicion at all.(10)
The courts consistently
hold that "flight" from the police, alone, does not constitute probable cause.(11)
But, does "flight" amount to reasonable suspicion? This is the question posed
to the United States Supreme Court in Wardlow.(12)
This note is a compilation of the few empirical studies that examine the issue
of police-minority relations in the context of brief temporary detentions on
the street.
The "stop and frisk" exception in Terry v. Ohio(13) permits the seizure of a citizen without a warrant and can be justified on grounds less than probable cause.(14) Although the Court provided the police with great discretion to conduct temporary seizures and detentions, it also placed limitations upon the use of this lesser standard in justifying searches and seizures. Specifically the Court permitted these intrusions upon a citizen's liberty interests only when the police officer possessed a reasonable belief that the suspect posed a potential threat to the safety of the officer or the general public.(15) In addition to limiting the use of stop and frisk to situations where a potential physical threat was present, the court also limited the extent of the intrusion. The stop and frisk was limited to a pat down of the outer clothing where a suspect might reasonably hide a weapon.(16) It neither allowed the officer to conduct a more extensive search or prolong the detention if the frisk revealed nothing.(17)
Despite the restrictions delineated in Terry, later courts applied this expanded exception into other areas.(18) In Michigan v. Long the Court extended the "stop and frisk" exception to automobiles and containers within automobiles that might reasonably hide a weapon.(19) The parameters of Terry were also used to extend the lawful entry of a home in Maryland v. Buie. In Buie, the Court allowed, without a warrant, a "protective sweep" of a home for officer safety.(20) Although Terry was limited to instances where the police suspected the person may be in possession of a weapon and they posed a potential threat to the officer or the public, later decisions permitted the use of non-weapon evidence discovered in the course of a search though it posed no threat . By 1993, the Court expanded Terry to allow the confiscation of non-threatening contraband.(21)
In another line of cases, and relying on police and public safety grounds the Court diminished citizen privacy based on no articuable suspicion whatsoever. In Pennsylvania v. Mimms the Court held that police could order a driver out of a lawfully stopped motor vehicle without any grounds to justify the extension of the seizure.(22) This same police power was extended to passengers in Maryland v. Wilson.(23) The Court reasoned that the de minimus intrusion to citizen privacy was outweighed by the public policy concerns for officer safety.(24)
The overriding
theme in these cases, where less than probable cause is necessary, is that of
the police officers safety. Based on the brief analysis of the evolution of
reasonable suspicion and searches and seizures based upon less than probable
cause, it appears difficult for the police to justify the seizure of a fleeing
citizen absent additional information that under the totality of the circumstances
would warrant the seizure. It would be difficult for the Court to reconcile
its prior cases with allowing "flight" alone to constitute grounds justifying
a seizure even if the intrusion is brief and limited. Flight is the opposite
of fight. It indicates that the person does not wish to confront the police
officer and is therefore no threat to the police. If the police do not possess
other facts that might suggest the person is a threat to the general public,
or was or was about to commit an offense, a reconciliation of the Terry
standard and seizure based upon flight alone is unlikely. When officer safety
is not basis for the stop or search the Court has been reluctant to reduce the
standard of proof to less than probable cause.(25)
But in certain circumstances the Court has upheld the seizure of a suspect on
less than probable cause when there is no threat to public safety.(26)
Although the majority of holdings suggest that flight alone is unlikely to constitute
reasonable suspicion, it is not beyond reality for such a conclusion to be reached.
As noted earlier, state courts have been reluctant to hold that flight by itself is sufficient to constitute reasonable suspicion. This section will briefly discuss the state cases that address this issue.
Many state courts have consistently held that flight from the police does not amount to reasonable suspicion. Two primary reasons ground this conclusion. The first is that flight without other grounds for suspicion does not satisfy the reasonable suspicion standards articulated in Terry. Although flight, when accompanied by other actions may amount to reasonable suspicion, by itself it does not.(27)
The second but less frequent rationale is that citizens may ignore police requests.(28) This rationale, and other decisions, are often supported in part by the varied court acknowledgments that certain groups, in particular minorities, do not maintain good relations with the police.(29) This flight, though unfortunate, may simply be an expression of fear from police abuse.
Reasonable suspicion
requires that the police have some articuable reason to believe that a person's
actions would lead them to a reasonable conclusion that the person has or is
about to commit an offense. Flight alone does not appear to satisfy this requirement.
The following two sections seek to further expand upon the discussion of the
courts on why minority males may be motivated to flee from the police without
any wrong doing.
It has been well established that police-citizen tensions are at their highest in minority communities, thus this section will only briefly gloss over the expansive research on police-minority conflicts. In the 1960s there were a series of police-minority conflict leading to the creation of a special presidential commission to the causes of the conflicts. The President's Commission on Riots and Civil Disorders established in its 1968 report that the police use of excessive force on minority citizens' was a central causal factor in the riots of the 1960s.(30) Minorities(31) have historically perceived that they are treated unfairly by the police and criminal justice system in a wide range of circumstances.(32) One instance of unfair treatment is the police practice of stopping and frisking minorities. Even the Terry Court demonstrated a serious concern for the abuse of the stop and frisk justification in minority communities. As the Terry Court noted the "stop and frisk" justification can be used for " . . . wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain . . .".(33) The Court continued in a similar vein stating:
"It was reported that the friction caused by '(m)isuse of field interrogations' increases 'as more police departments adopt 'aggressive patrol' in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose of being abroad is not readily evident.' . . . This is particularly true in situations where the 'stop and frisk' of youths or minority group members is 'motivated by the officers' perceived need to maintain the power image of the beat officer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets."(34)
A more recent
example of police-minority tensions is evident in the recent proliferation of
litigation on racial profiling on interstate highways and other motor vehicle
stops.(35) In such cases substantial evidence
has been put forth that police departments stop minority motorists on the pretext
of a traffic stop for the sole purpose of investigating the motorists for drugs.
With these brief examples it seems well established that the police are viewed
with suspicion by many in minority communities. This provides the impetus for
further inquiry into why innocent minorities may flee from the police.
Although many books on policing rely on descriptive analysis of police-citizen encounters there is little statistical research which examines these interactions. There is even less empirical research on police-minority street encounters. Even fewer research efforts investigate the police-minority encounter in the context of the Fourth Amendment. One reason for the limited analysis is that the police generally control the collection of data, the maintenance of records and the proliferation of information. Further, the police are often reluctant to share this information when it does exist. Only two studies examine the nature of the police-minority interactions within a Fourth Amendment context.
One study collected data from a major U.S. city for ten consecutive days in 1973.(36) The data included all police-citizen encounters where the person was detained by the police.(37) Of the total number of people detained by the police very few resulted in any additional action by the criminal justice system. There were sixty traffic tickets issued and eighteen people were taken into custody for a prior offense.(38) The study found that people stopped by the police differed significantly from the people who were arrested.(39) Young people and blacks were stopped at a disproportionate rate when compared to the number of their arrests.(40) The author concluded that the findings raised serious questions concerning "the quality of the 'police expertise' utilized in making the judgement to stop a person on the street."(41) This essentially challenged the existing perception of the courts that somehow police officers have specific knowledge that other non-police personnel do not have at detecting criminality. Also the people who were stopped tended to view the criminal justice system and the police as treating them unfairly, namely minorities and young adults, and based upon the findings of this particular study these feelings may be well-founded.(42) This study indicates that in one urban center of the United States, about twenty five years ago, minorities and young adults, presumably young males, are stopped at rates disproportionate to their numbers and these stops do not result in proportionate arrest rates. This strongly suggests that there are factors influencing the police officers decision to stop a suspect that are unrelated to any actual criminal wrong doing. This would presumably naturally result in feelings of being targeted by the police without reasonable justification, in essence harassment. Continued harassment by the police may constitute a sound justification for fleeing at the sight of a patrol car.
Although this research supports the claim that minorities are harassed by the police it does not tell us what the police minority encounter of today is like. There have been many reforms in the area of police-minority relations in the past twenty-five years suggesting these findings may not be applicable today.(43) The findings of twenty five years ago may be a graphic illustration of the past, but it provides little guidance as to the current nature of police-minority relations today. In essence, these findings may explain why minority youth ran from the police twenty five years ago, but provides little insight for why minority youth would run today. The following study addresses this exact issue.
The second study examined was conducted in 1993 by the Illinois Criminal Justice Information Authority (ICJIA).(44) The ICJIA administered a survey to on 12,281 full-time municipal police officers in Illinois.(45) The survey asked officers about the behavior of fellow officers. Specifically they were asked whether they witnessed the use of excessive force, harassment of citizens, and conducting illegal searches during the last year. 25.4% of officers admitted to witnessing an illegal search, 24.3% witnessed the frisk of a citizen for the purpose of harassing them, and 21.1% witnessed the use of excessive force.(46) In addition 26.8% witnessed an officer racially harass a citizen.(47)
Notably, there are several grounds why these surprisingly high figures might be considered an under estimate. First, in group comparisons there are rather blatant disparities. Female police officers reported witnessing nearly double the rate of excessive use of force than male police officers.(48) Although this might be interpreted as women being more sensitive to the use of force than men, these disparities held consistent in other areas. Namely, 36.3% of female police officers reported witnessing an illegal search while only 24.6% of male police officers did.(49) Only 23.1% of male police officers reported witnessing someone being frisked for the purpose of harassment, while 45.9% of female police did.(50) In the area of racial harassment, 36.3% of female officers reported witnessing such conduct by other police officers while only 26.1% of male police officers reported witnessing the same conduct.(51)
Similar disparities were observed when comparing the length of the officers service. Fifty-eight percent of police officers with less than one year on the police force reported witnessing police stop and frisk a person to harass them, while officers with more than one year in policing reported varying ranges between 12.5% to 34%, yet substantially lower than new police officers.(52)
It is well established that police are very distrustful of outsiders and the likelihood of misrepresentation in the answers of police officers is probably more likely to occur than it is with other occupations.(53) This proposition is further supported by the disparate reporting between men and women police officers and inexperienced versus experienced officers. In addition, discovering that younger officers are more trusting of outsiders than older officers would be of little surprise. The consistent difference between male and female officers and younger and older officers suggests artificially low estimates of police misconduct. Finally, it should be noted that this survey did not ask police officers how many times they witnessed a particular kind of misconduct. In many instances it is possible that a particular officer witnessed the same misconduct on dozens of occasions. The survey merely asked if it was witnessed at all.
Taken at face
value almost 27% of police officers reported witnessing the racial harassment
of a citizen by another officer. This finding offers strong support for the
distrust between minority citizens and the police.
Why do minorities run from the police? In some circumstances it is because they are in possession of narcotics, firearms, or have just committed an offense and they simply do not want to be caught. But this is not all cases, or even the majority of minorities who run from the police. Many are simply children and young adults who have learned from family, friends, peers, and their community that the police are to be feared, or at least not trusted. Many may have learned from personal experiences that the police are "after" them or have targeted them for "special" treatment. Many live in urban centers of the United States and have very little access to places outside of their community. Unlike suburban and rural residents where police can be avoided and privacy can be had without extreme measures, in urban communities there are few places to be left alone and the police are ever present. With the statistics from the Illinois Municipal Police Officer study perhaps the question is properly presented as "why don't minority males run from the police when they see them?"
Although there
have been significant improvements between the minority community and the police
in recent years and decades, those improvements are not sufficient to dispel
the often real belief that the police are "out to get" minorities. There are
real reasons for a minority and perhaps other young males to run from the police.
The simple desire to be left alone.
1. Amicus Brief Americans for Effective Law Enforcement 1999 WL 397769 People v. Wardlow 98-1036 at 5-6 citing State v. Anderson, 454 N.W.2d 763, 766 (Wis. 1990) ("Flight at the sight of police is undeniably suspicious behavior. Although many innocent explanations could be hypothesized as the reason for flight, a reasonable police officer who is charged with enforcing the law as well as maintaining peace and order cannot ignore the inference that criminal activity may well be afoot. Although it does not rise to a level of probable cause, flight at the sight of a police officer certainly gives rise to a reasonable suspicion that all is not well.")
2. Cynthia Kwei Yung Lee, 1996, Race and Self-Defense: Toward a Normative Conception of Reasonableness, 81 Minn. L. Rev. 367, 455 (". . . [W]hile flight at the sight of a police officer might be an abnormal reaction for a white person living in neighborhood in which the police have good relations with residents, it might be the natural response of a black person living in neighborhood known for police brutality and police harassment of blacks.") See also: Tracey Maclin, 1998, Race and the Fourth Amendment, 51 Vand. L. Rev. 333 ("In America, police targeting black people for excessive and disporportionate search and seizure is a practice older than the Republic itself."); Honorable Jack B. Weinstein and Mae C. Quinn, 1998, Terry, Race, and Judicial Integrity: The Court and Suppression During the War on Drugs 72 St. John's L. Rev. 1323 (" . . . [T]he way in which the 'reasonable suspicion' standard has been used against minority communities during this country's War on Drugs is disturbing in its inequalities of enforcement.")
3. Terry v. Ohio, 392 U.S. 1 (1968)
4. Amendment IV specifically states: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized."
5. Commonly referred to as the warrant clause of the Fourth Amendment
6. For a discussion of these exceptions see: Anthony Amsterdam (1973) "Perspectives on the Fourth Amendment" 58 Minn.L.R. 349 at 358 See Also: See: Freda Adler, Gerhard Mueller and William Laufer (1993). Criminal Justice. 208-219. See also: James Haddad (1977) "Well Delineated Exceptions, Claims of Sham, and Fourfold Probable Cause". 68 Journal of Criminal Law and Criminology 198-225; Elise Clare et al (1996). "Warrantless Searches and Seizures". 84 Geo.L.J. 743. These exceptions to the warrant clause where a warrant would be difficult or impossible to obtain include: automobile searches Carrol v. U.S. 267 U.S. 132, 45 S.Ct. 280 (1925); See also Colorado v. Bannister, 449 U.S. 1 (1980), hot pursuit Santana v. U.S., 427 U.S. 38 (1976); See also Warden v. Hayden, 387 U.S. 294 (1967), plain view Horton v. California, 496 U.S. 128 (1990); See also: Coolidge v. New Hampshire, 403 U.S. 443 (1971), stop and frisk Terry v. Ohio, 392 U.S. 1 (1968); See also: Michigan v. Long, 463 U.S. 1032 (1983) (Reasonable suspicion applied to automobile searches); Maryland v. Buie, 494 U.S. 325(1990) (Reasonable suspicion applied to searches of a private residence during lawful entry), exigent circumstances Michigan v. Tyler, 436 U.S. 499 (1978); See also: Schmerber v. California, 384 U.S. 757 (1966), searches incident to an arrest Chimel v. California, 395 U.S. 752 (1969), and plain feel Minnesota v. Dickerson, 508 U.S. 366 (1993).
7. Terry at 26 The frisk may ". . . be characterized as something less than a 'full' search, even though it remains a serious intrusion."
8. Terry at 22 " . . . [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."
9. Terry at 26 The search " . . . must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full' search, even though it remains a serious intrusion."
10. Terry v. Ohio, 392 U.S. 1, 36 (1968) (J. Douglas Dissenting) ("We hold today that the police have greater authority to make a 'seizure' and conduct a 'search' than a judge has to authorize such action.")
11. See: People v. Wardlow, 701 N.E.2d 484 (Ill. 1998) Cert Granted; See also other state supreme court decisions on this same issue: State v. Tucker, 642 A.2d 401 (NJ 1994); State v. Hicks, 488 N.W.2d 359 (1992); People v. Shabaz, 378 N.W.2d 451 (Mich. 1985); People v. Aldridge, 674 P.2d 240 (Cal 1984); People v. Thomas, 660 P.2d 1272 (Colo. 1983); Watkins v. State, 420 A.2d 270 (Md 1980).
12. People v. Wardlow, 701 N.E.2d 484 (Ill. 1998) Cert Granted.
15. See Sibron v. New York, 392 U.S. 40, 64 (1968) "The suspect's mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime."
16. Terry at 18 "The scope of the search must be 'strictly' tied to and justified by the circumstances which rendered its initiation permissible."
17. Terry at 26 "Thus it [the search] must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full search', even though it remains a serious intrusuions."
21. Minnesotta v. Dickerson, 508 U.S. 366 (1993)
24. Id. 414-415 "While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal."
25. Sibron v. New York, 392 U.S. 40, 64 (1968); Florida v. Royer, 460 U.S. 491, 499 (1983) (The police may not " . . . seek to verify their suspicions by means that approach the conditions of arrest."), U.S. v. Place, 462 U.S. 696, 706 (1983) ("Obviously, if this investigative procedure is itself a search requiring probable cause, the initial seizure of respondant's luggage for the purpose of subjecting it to the sniff test- no matter how brief - could not be justified on less than probable cause.")
27. People v. Wardlow, 701 N.E.2d 484 (Ill.1998); State v. Tucker, 642 A.2d 401 (N.J. 1994); State v. Hicks, 488 N.W.2d 359 (Neb. 1992); People v. Shabaz, 378 N.W.2d 451 (Mich. 1985); People v. Aldridge, 674 P.2d 240 (Cal. 1984); People v. Thomas, 660 P.2d 1272 (Co. 1983); Watkins v. State, 420 A.2d 270 (Md. 1980).
28. State v. Hicks, 488 N.W.2d 359 (Neb. 1992); People v. Shabaz, 378 N.W.2d 451 (Mich. 1985)
29. State v. Tucker, 642 A.2d 401 (N.J. 1994); State v. Hicks, 488 N.W.2d 359 (Neb. 1992); People v. Shabaz, 378 N.W.2d 451 (Mich. 1985); People v. Aldridge, 674 P.2d 240 (Cal. 1984); People v. Thomas, 660 P.2d 1272 (Co. 1983)
30. Jerome H. Skolnick and James J. Fyfe, Above the Law, with the exception of the riots following the assassination of Dr. Martin Luther King in 1968, all of the riots in the 1960s were linked to police-minority relations. Id. 78 ("[T]he police are usually found to be at fault or deeply implicated").
32. Stan Albrecht and Miles Green (1977). "Attitudes Toward the Police and the Larger Attitude Complex: Implications for Police Community Relations". 15 Criminology 67, 79; Michael Hindelang (1974). "Public Opinion Regarding Crime, Criminal Justice, and Related Topics." 11 Journal of Research in Crime and Delinquency 101, 104; Herbert Jacob (1971). "Black and White Perceptions of Justice in the City". 6 Law and Society Review 69, 87; Ilana Hadar and John Snortum (1975). "The Eye o the Beholder: Differential Perceptions of Police by the police and the Public". 2 Criminal Justice and Behavior 37, 45; Michael Hindelang (1974) "Public Opinion Regarding Crime, Criminal Justice, and Related Topics." 11 Journal of Research in Crime and Delinquency 101, 105; Thomas and Jeffery Hyman (1977). "Perceptions of Crime, Fear of Victimization, and Public Perceptions of Police Performance." 5 Journal of Police Science and Administration 305, 316; Roger Dunham and Geoffrey Alpert (1988). "Neighborhood Differences in Attitudes Toward Policing: Evidence for a Mixed-Strategy Model of Policing in a Multi-Ethnic Setting". 79 Journal of Criminal Law and Criminology 504, 514; J.R. Lasely (1994). "The Impact of the Rodney King Incident on Citizen Attitudes Toward Police". 3 Police and Society 245, 249; Paul Smith and Richard Hawkins (1973). "Victimization, Types of Citizen-Police Contacts, and Attitudes Toward the Police". 8 Law and Society Review 135, 143.
35. Sean Hecker, 1997, Race and Pretextual Traffic Stops: An Expanded Role for Civilian Review Board, 28 Colum. Hum. Rts. L. Rev. 551, 558-567.
36. Robert L. Bogomolny, 1976, Street Patrol: The Decision to Stop a Citizen. 12 Crim L Bull 544, 567.
39. Id. 568 (The demographics o the people stopped were compared to the arrested population from the prior year.)
43. Jim Fyfe, 1996, Methodology, Substance, and Demeanor in Police Observational Research: A Response to Lundman and Others. 33 Journal of Research in Crime and Delinquency 337, 338.
44. Christine Martin, Illinois Municipal Officers' Perceptions of Police Ethics, 1994 at 2.