Unprovoked Flight, Reasonable Articulable Suspicion, and Article 26

By Isabelle Raquin

On December 19, 2022, the Supreme Court of Maryland filed Washington v. State, No. 15, September Term, 2022, addressing whether unprovoked flight in a high-crime neighborhood adds to the reasonable articulable suspicion necessary to detain a person under the Fourth Amendment and Article 26 of the Maryland Declaration of Rights.

Washington follows in the footsteps of Illinois v. Wardlow, 528 U.S. 119 (2000), where the Supreme Court of the United States considered whether unprovoked “headlong flight” in a drug-trafficking area constitutes reasonable articulable suspicion for law enforcement to detain a person.  Wardlow determined that “headlong flight—wherever it occurs—is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.”  However, a lot has happened in the past 20 years that could explain why a person’s flight from law enforcement is entirely consistent with innocence.

Holding. Consistent with Wardlow, the SCM (Watts, J.) held that, “under the totality of the circumstances analysis, a court may consider whether unprovoked flight is an indication of criminal activity that, coupled with evidence of a high-crime area and any other relevant factors, establishes reasonable suspicion for a stop, or whether unprovoked flight, under the circumstances of the case, is a factor consistent with innocence that adds little or nothing to the reasonable suspicion analysis.”

Innocent Reasons to Flee. The SCM fully acknowledged the reality that the Baltimore Police Department had experienced a series of unsettling events, giving rise to an increased public awareness of police misconduct and a fear of police officers by some residents of Baltimore City, particularly those who are African American. The Court reiterated that the circumstance of unprovoked flight may be consistent with innocence is a factor that a court may consider in determining whether officers had reasonable suspicion to detain a person, particularly a young African American man.

No Bright-Line Rule. The SCM refused to draw a bright-line rule to hold that unprovoked flight from police officers in a high-crime area is a factor that may never give rise to reasonable suspicion. The Court also refused to establish a per se rule that unprovoked flight in a high-crime area will always equal reasonable suspicion. Rather, the Court ruled that unprovoked flight is a factor to consider as well as the fact that the flight may have occurred for innocent reasons, such as fear of police officers. For example, “the circumstance that people, particularly young African American men, may flee police for innocent reasons is a valid consideration in the Fourth Amendment reasonable suspicion calculus.”

On the Facts. Applying this analysis, the SCM concluded that the detective had reasonable articulable suspicion to stop Washington, based on the specific nature and context of Washington’s flight, his other evasive maneuvers, and its occurrence in a location that was established to be a high-crime area. Washington fled not only at the sight of uniformed detectives in a marked police car, but also at the other end of an alley when he spotted different detectives in an unmarked car. Washington fled, headlong, completely unprovoked, and simultaneously with the other individual standing with him in the alley. He also jumped fences and attempted to conceal himself behind a bush while fleeing.

Narrow Factual Holding. The SCM cautioned that “its conclusion in this case is a highly fact-specific outcome, as the result of such analyses must always be.” On the specific facts of this case—Washington’s unprovoked, headlong flight and his other evasive maneuvers in a high-crime area—the totality of the circumstances supported reasonable suspicion for the officers to stop him and investigate further.

Article 26. Notably, the SCM granted certiorari on Washington’s question seeking suppression of the gun recovered under Article 26 of the Maryland Declaration of Rights.  He acknowledged that the SCM had never held that Article 26 provides greater protection than the Fourth Amendment or adopted an independent exclusionary rule for evidence seized in violation of Article 26. Washington argued nonetheless that the SCM should take both such actions in light of the increased public awareness of police misconduct across the country in general and in Maryland in particular. The SCM continued to hold that it interprets Article 26 in pari materia with the Fourth Amendment, which means that the protections under Article 26 are coextensive with those under the Fourth Amendment. It specifically held that it sees “no necessary reason to engraft onto our State Constitution a deviation from the Supreme Court’s Fourth Amendment precedent regarding the totality of the circumstances analysis to be used when assessing whether reasonable suspicion exists.”  Still, the SCM’s grant of certiorari on the Article 26 question and its articulation of the “necessity” standard, may indicate the Court is willing to reconsider the question in a different context.  Recall that in a case from the 2020 term, Leidig v. State, 475 Md. 181 (2021), the SCM held that a statement contained in a scientific report was testimonial under Article 21’s right of confrontation. Leidig found it necessary to apply Article 21 because the U.S. Supreme Court was deadlocked on the application of the right of confrontation to statements in forensic reports.

The Dissent. In her dissenting opinion, Justice Hotten focuses on the reasonable articulable suspicion that “criminal activity is afoot.” In all circumstances, reasonable suspicion must be supported by an articulable factual basis that criminal activity is afoot. In the case at bar, despite conceding Washington engaged in wholly innocent conduct, the detectives pursued him solely because he fled in a high-crime area without provocation. “In doing so, the detectives abandoned the totality of the circumstances test in favor of a bright-line rule based upon unprovoked flight in a high-crime area, devoid of any objectively particularized facts amounting to reasonable suspicion of criminal activity.”  The “skeletal facts in this case” do not support reasonable suspicion because the detectives failed to articulate any facts that initiated their pursuit, other than Washington’s unprovoked flight in a high-crime area. “Detectives observed Petitioner casually standing in an alley. Petitioner ran after seeing the detectives, and thereafter the detectives immediately pursued Petitioner. It follows that Petitioner is suspicious because…? That question remains unanswered.”

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