From the Classroom   
By Raymond Hill   
Professor Emeritus, Santa Rosa Junior College  

The “Flight, Plus Rule”  

It’s 0130 hours. You are on patrol in a residential neighborhood. You see a subject looking into a parked vehicle in a private driveway. He sees your unit and takes off running. Ten minutes later, after backup and a canine are summoned, the subject is found hiding underneath a parked vehicle two blocks away. He is detained and handcuffed pending further investigation.  

Are you good to go with this detention? How does flight tie into your reasonable suspicion to detain? Does flight, standing alone, justify a detention? Is there a rule prohibiting an “attempted unlawful detention?” At what point during a foot pursuit is a person actually detained? Does “flight, plus” with a police order to stop constitute a separate crime for detention?  

Rule  

In 2000, the U.S. Supreme Court established the “flight, plus” rule for detentions (Illinois v. Wardlow (2000) 528 U.S. 119). The court ruled that flight, plus an additional factor indicative of criminal activity, provides the reasonable suspicion to detain. In the Wardlow case, the defendant was present in a known narcotics trafficking area in Chicago, Ill. He was holding an opaque bag. Upon sighting a caravan of four approaching police cars containing eight officers, he took off running. Officers pursued, detained, and found a .38-caliber handgun inside the bag. The court ruled that a person’s presence in a “sufficiently localized and identifiable high-crime area” coupled with unprovoked flight, justifies a detention.  

Notable facts: “It was not merely the respondent’s presence in an area of heavy narcotics activity that aroused the officer’s suspicion, but his unprovoked flight upon noticing the police...(n)ervous, evasive behavior is another pertinent factor in determining reasonable suspicion.,,and headlong flight is the consummate act of evasion,” the court said.  

In a 5-4 ruling, the majority noted that “We conclude that the officer was justified in suspecting that (Wardlow) was involved in criminal activity and, therefore, justified in investigating further.”  

 Some applicable California cases:  

• Los Angeles Police Department officers observed a known gang member running through and obstructing traffic in a “gang stronghold” area. While running, the subject kept nervously looking around and over his shoulder, as if he were looking for someone or something. Officers believed he was fleeing from criminal activity either as a victim or a suspect. These observations provided reasonable suspicion to detain (In re: H.M. (2008) 167 Cal. App. 4th 136).   

• A defendant matched the physical description of a subject who had recently “bailed” from a moving vehicle. When he observed a Santa Paula police officer, he ran and tossed an item over a fence (later determined to be meth and a digital scale). The “flight, plus” rule was met for detention. “Officer Rosenthal did not know why the appellant fled from the first officer or why he took flight again. It was his job to find out why. He would have been derelict in his duties had he not attempted to detain the defendant” (Peo. v. Rodriguez (2012) 207 Cal. App. 4th 1540).  

Adding in Your Beat Knowledge, Experience and Training  

You are the expert witness about your beat. From experience, you know what is normal and what is out of the ordinary. “An officer’s training and experience can be critical in translating observations into a reasonable conclusion” (Peo. v. Ledesma (2003) 106 Cal. App. 4th 857). Applying your beat knowledge to what you see can add the important “plus factor” to flight.  

Let’s go back to our original scenario. On the residential street you are patrolling, you know it is rare to see anyone out and about at 0130 hours. And the people who you do see on occasion do not run from you. Your experience and training tells you that people who run under these circumstances are evading their involvement in suspected criminal activity. So, flight and beat knowledge provide your reasonable suspicion to detain and investigate.  

Here are some California cases emphasizing “beat knowledge:”  

• A Watsonville police officer observed a vehicle parked in a darkened location at 0300 hours. The location was a high-crime, residential area known for burglaries and drug activity. The officer had recently made arrests in the area. Two people, including the defendant, were standing outside the car and two were seated inside. When the officer spotlighted the car, those inside the car ducked down and the defendant took off running. The officer pursued and detained him. During a struggle, a plastic baggie of cocaine fell from the defendant’s pocket. The court ruled that the officer’s “beat knowledge,” the furtive activity of those when seeing the officer, and the flight of the defendant justified a detention. “Consequently, we must allow those we hire to maintain our peace as well to apprehend criminals after the fact, to give appropriate consideration to their surroundings, and to draw rational inferences therefrom, unless we are prepared to insist they cease to exercise their senses and their reasoning abilities the moment they venture forth on patrol” (Peo. v. Sousa (1994) 9 Cal. 4th 224).   

• The defendants were in a Ford vehicle stopped by a Visalia police officer. The reasons for the detention were two-fold: First, the stop was made at midnight in the vicinity of multiple car dealerships where recent auto thefts had occurred. The Ford was “beaded with water” as if it had been parked for an extended period and only recently driven a short distance. The last rainstorm was 2-1/2-hours earlier. Second, when the vehicle turned onto a highway, despite there being no other traffic on the roadway, the vehicle traveled at 40 mph in a 55 mph zone for a mile, an indicator that the driver may be impaired. After the stop, investigation revealed the defendants had committed a murder earlier in the evening where the victim had been stabbed to death and sodomized with a beer bottle. The defendants were driving the victim’s unreported stolen car. The court ruled the detention was lawful. The officer was careful to document the “totality of circumstances” and combined his observations with his experience and “beat knowledge.” The fact that the defendant’s actions may have an “innocent explanation” (“just driving through town at midnight” or people “tend to slow down when they see an officer”) didn’t preclude a temporary detention to determine whether criminal activity was afoot. “What is required is not the absence of an innocent explanation, but the existence of specific and articulable facts which taken together with rational inferences from those facts reasonably warranted that intrusion” (Peo. v. Letner and Tobin (2010) 50 Cal. 4th 99).  

A “Moving” Contact  

Just because you choose to follow or pursue a person doesn’t trigger an “attempted” unlawful detention. Under the Fourth Amendment, a person is not detained until the point where a physical seizure takes place or a person stops as a submission to an officer’s authority.  

Examples:  

• Detroit, Michigan, officers working in a marked patrol unit saw a car pull to the curb where the defendant was standing. When the defendant saw the officers, he looked startled and began to run. Officers followed by driving alongside him without lights, siren or blocking movement. The defendant threw down pill packets which the officers recognized as contraband. These were retrieved. Officers caught up with the defendant, detained and subsequently arrested him. The defendant claimed the officers’ following him constituted an unlawful detention without reasonable suspicion of criminal activity. The court ruled that the defendant was not “seized” by the police before he discarded the packets containing the controlled substance. While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure. “The police therefore were not required to have a particularized and objective basis for suspecting him of criminal activity in order to pursue him” before the discarding of the contraband” (Michigan v. Chesternut (1988) 486 U.S. 567).  

• Oakland Police Department officers observed the defendant talking to people in a parked vehicle. When the defendant saw the officers, he appeared surprised and took off running. One officer pursued on a parallel route and as he approached, the defendant tossed crack cocaine to the ground. He was detained and arrested. Though the only factor articulated by the officer in this case was the fact that the defendant ran, the court ruled that no detention took place until the contraband was tossed, and at that point there was reasonable suspicion to seize the defendant (California v. Hodari D. (1991) 499 U.S. 621).  

Note: Both Chesternut (1988) and Hodari D. (1991) were decided before Wardlow (2000). In these cases, the high court dealt with case circumstances that involved flight standing alone and whether an officer pursuing under these circumstances constituted a Fourth Amendment violation. As a follow up, given the nature of some areas in Detroit and Oakland, the officer(s) could have added their beat knowledge and experience and training to the unprovoked flight for reason to detain (“flight, plus) prior to the abandonment of any contraband.  

Cases on Resisting a Detention  

A person cannot physically resist a lawful detention (Evans v. City of Bakersfield (1994) 22 Cal. App. 4th 321); Dawkins v. City of Los Angeles (1978) 22 Cal. 3d 764); Refusal to submit to a lawful detention such as running away is probable cause to arrest pursuant to 148(a)(1) P.C.) (In re: Gregory S. (1980) 112 Cal App. 3d 764). An officer may use reasonable force and restraint to keep a person at a detention scene, including a restrained detention or, if necessary, make a custodial arrest for 148 P.C., physically resisting obstructing an officer in performance of duty (In re: Andre P. (1991 226 Cal. App. 3d 1164).  

Professional subscribers to LegalUpdates.com can also reference Robert Phillips’ “The Fourth Amendment -- Search and Seizure – An Update,” 23rd Edition, Pages 215-219.   

Conclusion  

Hill’s Rule #2 – “The law is not always logical; it just is.” Though it may seem logical that running by itself should justify a detention, you have the additional legal obligation to add the “plus” in your police report. I submit to you that this is not a high legal barrier. Coupled with flight, include the nature of the area or reputation of premises (backed up with crime statistics), discarding items before or during a foot pursuit, known criminal record, time relating to the method of operation of previously reported crimes, or new crimes committed during the foot pursuit (obstructing traffic, trespassing on private property, etc.) Also, your beat knowledge, experience and training are excellent “plus” sources. Your body-worn camera footage is “top shelf” evidence in recording you saying “stop, police,” and the details of a foot pursuit.  

As always, the decision to engage in a solo foot pursuit is yours. This decision is based upon officer safety, the nature of the suspected crime, the environs and topography of travel and availability of backup to assist you.   

Your safety comes first!  

RH