What Is “Unprovoked Flight” Under Illinois v. Wardlow?

Flight hasn’t always been such a terrible thing. At one time, courts seemed to recognize that there might be all sorts of reasons an innocent person might want to distance himself from the presence of a police officer. Not all contacts with police officers are Norman Rockwell positive, particularly for certain members of our society. And, absent a reasonable suspicion on the part of the police officer that something untoward may be going on, individuals have just as much right to terminate a “mere encounter” with a police officer on the street as the police officer had to initiate the encounter to begin with.

In 2000, the U.S. Supreme Court’s decision in Illinois v. Wardlow put a wrinkle in all of this. Police officers in Wardlow were driving in an area of Chicago known for heavy drug activity when they saw the defendant look in their direction and then run away.  A 5-4 majority of the Court held that the suspect’s “headlong” and “unprovoked” flight, combined with presence in a high crime area, provided police with sufficient grounds under the Fourth Amendment to stop him for further investigation.   “Headlong flight,” the Court concluded, “. . . is the consummate act of evasion; it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”  Moreover, “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.”

Police officers are not idiots, and they know which legal terms they need to throw into their police reports and testimony to help protect an arrest.  Not surprisingly, just as a hammer tends to see nails wherever it goes, every flight since Wardlow has tended to look an awful lot like it was both headlong and unprovoked.  I had some fun the other day with an officer who mentioned my client’s “unprovoked flight” in his testimony during a motion to suppress hearing.

Q:  Officer, I noticed that you used the term “unprovoked flight on direct.”

A:  Yes.

Q:  Is that the type of term you’d use in ordinary conversation?

A:  Police conversation, yes.

Q:  Police conversation.

A:  Yes.

Q:  You know it’s a legal term, right?

A:  Somewhat so, yes.  You could say that.

So what exactly is “unprovoked flight?”  Surprisingly enough, although the definition of “headlong” received quite a bit of attention after Wardlow, with the government arguing that anything faster than a stroll satisfied the definition and defense lawyers insisting that the suspect needed to have been running at Olympic speed, a definition of “unprovoked flight” has proven a bit more elusive.

If “unprovoked flight” is difficult to define, here is my attempt at defining what “provoked flight” is.  Provoked flight is the officer pulling a marked car up to the sidewalk next to the defendant, rolling down the window, and asking what the defendant what he and his companions are up to.  Provoked flight is opening the police cruiser door and getting out of the car.  Provoked flight is approaching the suspect on foot.

Prosecutor:  What did you mean by “unprovoked flight?”

Witness:  Well, I mean once we, we sort of – when I say provoked, it’s like, we may –

Defense Counsel:  — Objection.  Calls for a legal conclusion.

Court:  Sustained.

Prosecutor:  Your Honor.  It was asked about on cross.

Defense Counsel:  I asked the officer how often he used the term.  I never asked him to define it.

Court:  Sustained.

At least one D.C. court agrees with me.  Motion to suppress granted.