People v. Wardlow, No. 83061 (9/24/98)
Docket No. 83061--Agenda 7--March 1998.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
SAM WARDLOW, Appellant.
JUSTICE HARRISON delivered the opinion of the court:
Defendant, Sam Wardlow, was convicted of unlawful use
of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 1994))
following a stipulated bench trial in Cook County and was
sentenced to a term of two years' imprisonment. On appeal, the
appellate court reversed defendant's conviction, finding that
defendant's motion to suppress evidence should have been
granted because the revolver seized from him was discovered as
a result of an improper investigatory stop. 287 Ill. App. 3d 367.
We allowed the State's petition for leave to appeal. 166 Ill. 2d
R. 315(a); 145 Ill. 2d R. 604(a)(2).
At the hearing on defendant's motion to suppress, Officer
Timothy Nolan testified that on September 9, 1995, he and his
partner, Officer Harvey, were assigned to the special operations
section of the Chicago police department. On that date, Nolan
and Harvey were among eight officers in four cars travelling
eastbound on West Van Buren Street with the purpose of
investigating narcotics sales in that area. Nolan stated that he
was working in uniform, but did not recall whether the police
car he drove, the last in the "caravan," was marked or
unmarked.
Nolan testified that as he was driving, he observed
defendant standing in front of 4035 West Van Buren. Defendant,
who did not appear to be violating any laws, looked in the
officers' direction and then fled. Nolan turned his vehicle
southbound toward Congress Avenue, continuing to observe
defendant, who ran southbound through a gangway and then
through an alley. Nolan stated that defendant, who was carrying
a white opaque bag under his arm, was cornered in the vicinity
of 4036 West Congress when he "ran right towards us."
Nolan exited his car and stopped defendant. Without
announcing his office or asking any questions, he conducted a
protective pat-down search of defendant. Nolan testified that he
could not see inside the bag defendant was carrying so he
"squeezed" the bag and felt a very heavy, hard object "that had
a similar shape to a revolver or a gun." Believing the object to
be a weapon, Nolan opened the bag and found a .38-caliber
handgun containing five live rounds of ammunition. Nolan then
placed defendant under arrest.[fn1]
Responding to the State's question as to why he "went to
that location on that date and time," Nolan answered that it was
"one of the areas in the 11th District that's high narcotics
traffic." Nolan further testified that, based upon his experience
in investigating areas in which narcotics were sold, it was
common for there to be weapons "in the near vicinity" and he
considered that fact as he approached "that specific scene." After
hearing arguments by the parties, the trial court denied
defendant's motion to suppress.
Generally, a trial court's ruling on a motion to suppress
evidence is subject to reversal only if manifestly erroneous.
People v. Dilworth, 169 Ill. 2d 195, 201 (1996). This clearly
erroneous or manifestly erroneous test is based on the
understanding that suppression motions usually raise mixed
questions of law and fact. See People v. Frazier, 248 Ill. App.
3d 6, 12 (1993). However, where, as here, neither the facts nor
the credibility of the witnesses is contested, the determination of
whether there is reasonable suspicion warranting an
investigatory stop is a legal question which a reviewing court
may consider de novo. See In re D.G., 144 Ill. 2d 404, 408-09
(1991); People v. Foskey, 136 Ill. 2d 66, 76 (1990); see also
People v. Besser, 273 Ill. App. 3d 164, 167 (1995).
The fourth amendment to the United States Constitution
guarantees the "right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures." U.S. Const., amend. IV. This provision applies to all
seizures of the person, including seizures that involve only a
brief detention short of traditional arrest. United States v.
Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 614, 95
S. Ct. 2574, 2578 (1975); People v. Smithers, 83 Ill. 2d 430,
433-34 (1980). In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889,
88 S. Ct. 1868 (1968), the United States Supreme Court held
that the public's interest in effective law enforcement makes it
reasonable to detain and question individuals under certain
circumstances in which probable cause to arrest is lacking.
However, in order to protect "the individual's right to personal
security free from arbitrary interference by law officers"
(Brignoni-Ponce, 422 U.S. at 878, 45 L. Ed. 2d at 615, 95 S. Ct.
at 2579), the Terry Court held that such limited investigatory
stops are permissible only upon a reasonable suspicion based
upon specific and articulable facts that the person has
committed, or is about to commit, a crime. Terry, 392 U.S. at
21-22, 20 L. Ed. 2d at 906, 88 S. Ct. at 1880; Smithers, 83 Ill.
2d at 434.
This Terry standard has been codified in our Code of
Criminal Procedure of 1963. People v. Flowers, 179 Ill. 2d 257,
262 (1997); People v. Long, 99 Ill. 2d 219, 228 (1983). Section
107--14 of the Code provides, in pertinent part: "A peace officer
*** may stop any person in a public place for a reasonable
period of time when the officer reasonably infers from the
circumstances that the person is committing, is about to commit
or has committed an offense ***." 725 ILCS 5/107--14 (West
1994). The same standard is applied in determining the propriety
of an investigatory stop under article I, section 6, of the Illinois
Constitution of 1970 (Ill. Const. 1970, art. I, sec. 6). See People
v. Tisler, 103 Ill. 2d 226, 242-43 (1984) (the protection against
unreasonable searches and seizures under the Illinois
Constitution is measured by the same standards as are used in
defining the protections contained in the fourth amendment to
the United States Constitution).
Turning to the case before us, defendant contended on
direct appeal that the trial court erred in denying his motion to
suppress because his presence in a high-crime area and flight
from police were insufficient to justify his investigatory stop.
The appellate court agreed, but found the record "simply too
vague to support the inference that defendant was in a location
with a high incidence of narcotics trafficking" and limited its
holding accordingly. 287 Ill. App. 3d at 370-71. However, we
believe Officer Nolan's uncontradicted and undisputed
testimony, which was accepted by the trial court, was sufficient
to establish that the incident occurred in a high-crime area. See
Ornelas v. United States, 517 U.S. 690, 699, 134 L. Ed. 2d 911,
920, 116 S. Ct. 1657, 1663 (1996) (as a general matter
determinations of reasonable suspicion and probable cause
should be reviewed de novo on appeal, but reviewing court
should take care both to review findings of fact only for clear
error and to give due weight to inferences drawn from those
facts by judges and local law enforcement officers). Thus, the
issue presented by this appeal is whether an individual's flight
upon the approach of a police vehicle patrolling a high-crime
area is sufficient to justify an investigative stop of the person.
Defendant contends that such flight alone is insufficient to
create a reasonable suspicion of involvement in criminal
conduct. We agree.
A majority of jurisdictions addressing this issue have held
that flight alone is insufficient to justify a Terry stop. See, e.g.,
State v. Tucker, 136 N.J. 158, 642 A.2d 401 (1994); State v.
Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992); People v. Shabaz,
424 Mich. 42, 378 N.W.2d 451 (1985); People v. Aldridge, 35
Cal. 3d 473, 674 P.2d 240, 198 Cal. Rptr. 538 (1984); People
v. Thomas, 660 P.2d 1272 (Colo. 1983); Watkins v. State, 288
Md. 597, 420 A.2d 270 (1980). "Instead, courts require proof of
some independently suspicious circumstance to corroborate the
inference of a guilty conscience associated with flight at the
sight of the police. [Citations.]" Hicks, 241 Neb. at 362-63, 488
N.W.2d at 363; see also Tucker, 136 N.J. at 169, 642 A.2d at
407 (for departure to take on the legal significance of flight,
there must be some circumstances present and unexplained
which, in conjunction with the leaving, reasonably justify an
inference that it was done with a consciousness of guilt and
pursuant to an effort to avoid an accusation based on that guilt).
In Hicks, the Nebraska Supreme Court examined a number
of these "location plus evasion" cases and, in a well-reasoned
opinion, concluded:
"[A]llowing flight alone to justify an investigative stop
would undercut the very values Terry sought to safeguard.
Terry is based in part upon the proposition that the right to
freedom from arbitrary governmental intrusion is as
valuable on the street as it is in the home. Thus, while a
police officer does not violate the Fourth Amendment by
approaching an individual in a public place and asking if
the person will answer some questions, neither is the person
under any obligation to answer. Florida v. Royer, 460 U.S.
491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). The person
may decline to listen to the questions at all and simply go
on his or her way. Id. If the option to 'move on' is chosen,
the 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.' 460 U.S. at 498.
*** Flight upon approach of a police officer may
simply reflect the exercise--'at top speed'--of the person's
constitutional right to ' "move on." ' Shabaz, 424 Mich. at
63, 378 N.W.2d at 460. Terry and Royer stand for the
proposition that exercise of this constitutional right may not
itself provide the basis for more intrusive police activity.
* * *
A prime concern underlying the Terry decision is
protecting the right of law-abiding citizens to eschew
interactions with the police. Authorizing the police to chase
down and question all those who take flight upon their
approach would undercut this important right and upset the
balance struck in Terry between the individual's right to
personal security and the public's interest in prevention of
crime. We therefore join those jurisdictions holding that
flight from a police officer is sufficient to justify an
investigatory stop only when coupled with specific
knowledge connecting the person to involvement in
criminal conduct. [Citations.]" Hicks, 241 Neb. at 363-64,
488 N.W.2d at 363-64.
Although no Illinois court has specifically considered
whether sudden flight from police in a high-crime area justifies
a stop, we agree with the appellate court that "[i]n Illinois,
neither a person's mere presence in an area where drugs are sold
(People v. Harper, 237 Ill. App. 3d 202, 205, 603 N.E.2d 115
(1992)) nor sudden flight (People v. Rivera, 233 Ill. App. 3d 69,
77, 598 N.E.2d 423 (1992)) alone will justify a Terry stop." 287
Ill. App. 3d at 370; see also People v. Fox, 97 Ill. App. 3d 58
(1981) (driving away at approach of marked police vehicle not
a justification for stop). Moreover, this court has recently
emphasized the importance of protecting the freedom to engage
in such harmless activities as "loafing, loitering, and
nightwalking" and other personal liberties of citizens, including
the right to travel, to locomotion, to freedom of movement, and
to associate with others. City of Chicago v. Morales, 177 Ill. 2d
440, 459-60 (1997), cert. granted, ___ U.S. ___, 140 L. Ed. 2d
664, 118 S. Ct. 15.
In Morales, we found that a City of Chicago ordinance
which prohibited certain individuals from loitering in public
places violated substantive due process because it unreasonably
infringed on "the personal liberty of being able to freely walk
the streets and associate with friends." Morales, 177 Ill. 2d at
460-61. We find similarly unreasonable the State's proposal, in
the instant case, that every person observed in "sudden and
unprovoked flight" from an officer may be stopped regardless of
whether the surrounding circumstances indicate the person is
involved in criminal activity. Cf. People v. Holdman, 73 Ill. 2d
213 (1978) (defendants' flight following officers' shining bright
light into vehicle they reasonably believed to be associated with
fugitive for whom they had warrant was indication of criminal
activity requiring police pursuit). As defendant suggests, "[i]f
the police cannot constitutionally force otherwise law-abiding
citizens to move, the police cannot force those same citizens to
stand still at the appearance of an officer." Therefore, because
we agree with the majority of courts that view the unequivocal
flight of a suspect upon seeing police as not alone indicative of
criminal activity, we now examine the record herein to
determine if there are corroborating circumstances sufficient to
create the reasonable suspicion necessary for the stop of
defendant.
The case before us is factually similar to People v. Mamon,
173 Mich. App. 429, 435 N.W.2d 12 (1988), rev'd on other
grounds, 435 Mich. 1, 457 N.W.2d 623 (1990). There, two
police officers were driving on routine patrol in a marked squad
car through an area known for narcotics activity. As the officers
approached the defendant, Mamon, standing on a corner near a
public phone, he took off running. The officers pursued the
defendant on foot, noticing that he removed a case from his
pocket and dropped it during the chase. The officers ultimately
caught the defendant and retrieved the case, which contained
cocaine. The trial court quashed an information charging the
defendant with possession of a controlled substance, and the
State appealed.
The Michigan appeals court affirmed the trial court's
decision, first addressing the circumstances existing before the
defendant began to run. Though the incident occurred in a high-
crime neighborhood, the court determined that a person's
presence in such an area cannot, by itself, provide the basis for
an investigatory stop. In so doing, the court noted that the
officers were not responding to a particular complaint of
wrongdoing in the area and that the defendant made no furtive
gestures prior to seeing the officers. Concluding that the officers
lacked an articulable basis for stopping the defendant as he
stood on the corner, the court turned to the significance of his
flight upon their approach. Noting the ambiguous nature of
flight as an indicator of guilt, the court held that the act of
running at the sight of police patrolling a high-crime area did
not provide the particularized grounds necessary to support a
reasonable suspicion that criminal activity was afoot. Mamon,
173 Mich. App. at 435-38, 435 N.W.2d at 14-16.
Here, similar to Mamon, Officers Nolan and Harvey were
"caravaning" with several other police vehicles when the
incident occurred. They were not responding to any call or
report of suspicious activity in the area. Though Officer Nolan
testified that that area of the 11th District is known for "high
narcotics traffic," we agree with our appellate court's opinion in
Harper, 237 Ill. App. 3d at 205-06, and the numerous decisions
from other jurisdictions, holding that a person's presence in such
an area by itself does not warrant a suspicion that that person is
involved in crime. See Brown v. Texas, 443 U.S. 47, 61 L. Ed.
2d 357, 99 S. Ct. 2637 (1979); Hicks, 241 Neb. at 366, 488
N.W.2d at 365; Shabaz, 424 Mich. at 60, 378 N.W.2d at 459;
see also In re D.J., 532 A.2d 138, 143 (D.C. App. 1987)
(innocent activities do not become sinister by the mere fact that
they take place in a high-crime area).
It is also clear that defendant herein gave no outward
indication of involvement in illicit activity prior to the approach
of Officer Nolan's vehicle. Defendant was simply standing in
front of a building when the officers drove by. As in Mamon,
the officers lacked an articulable basis for suspecting defendant
of involvement in criminal activity prior to the point at which
he turned and ran.
In Fox, the Illinois case which most closely approximates
the issue presented herein, the appellate court foreshadowed our
concerns, stating:
"At the time of the stop, the investigating officers were
aware that `partying and littering' had recently occurred in
the *** area and also that the vehicle in which the
defendant was riding as a passenger exited the area at a
speed which one officer believed to be unreasonable upon
the approach of a squad car. But, the officers testifying on
behalf of the State did not relate that any additional
suspicious or unusual activities that would have alerted the
police to the possibility of criminality were carried on by
the occupants of the automobile. ***
***
In short, the evidence adduced in this case does not
support the State's contention that the police were aware of
specific and articulable facts to justify the stop here. Rather,
the evidence suggests that the police officers were operating
under a suspicion or hunch that the vehicle contained
someone who had committed or was about to commit a
crime." (Emphasis added.) Fox, 97 Ill. App. 3d at 63-64.
Here, as in Fox, in the absence of circumstances corroborating
the conclusion that defendant was involved in criminal activity,
Officer Nolan's testimony reveals nothing more than a hunch.
As our brethren on the Supreme Court of Colorado have so
aptly stated:
"We are aware that the weighty social objective of
crime prevention might well be served by permitting stops
and detentions without any requirement of a reasonable
suspicion that criminal activity has occurred or is about to
take place. In the absence of specific and articulable facts
supporting the reasonable suspicion, however, 'the balance
between the public interest and [defendant's] right to
personal security and privacy tilts in favor of freedom from
police interference.' Brown v. Texas, [443 U.S.] at 52, 99
S. Ct. at 2641, 61 L. Ed. 2d at 363." Thomas, 660 P.2d at
1277.
Where, as here, the police stop is not based upon objective
criteria pointing to a reasonable suspicion of criminal activity,
"the risk of arbitrary and abusive police practices exceeds
tolerable limits." Brown v. Texas, 443 U.S. at 52, 61 L. Ed. 2d
at 363, 99 S. Ct. at 2641.
Therefore, because Officer Nolan was not able to point to
specific facts corroborating the inference of guilt gleaned from
defendant's flight, his stop and subsequent arrest of defendant
were constitutionally infirm. U.S. Const., amend. IV; Ill. Const.
1970, art. I, sec. 6. The appellate court, therefore, properly
reversed the trial court's denial of defendant's motion to
suppress evidence. The weapon that was the basis for
defendant's conviction should have been suppressed as the
product of the unconstitutional seizure of his person. Wong Sun
v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 455, 83 S.
Ct. 407, 417 (1963).
For the foregoing reasons, the judgment of the appellate
court, reversing the judgment of the circuit court, is affirmed.
Appellate court judgment affirmed.
[fn1] While no testimony was presented as to the precise
time of defendant's arrest, the record contains Nolan's arrest