The Indiana resisting law enforcement statute has to be construed to require the order to stop be lawful and be based on reasonable suspicion or probable cause. On its face, it requires a person to stop even for unlawful orders, and that condones Fourth Amendment violations to be litigated after the fact. Construing it this way preserves its constitutionality under the Fourth Amendment. Gaddie v. State, 2014 Ind. LEXIS 516 (June 27, 2014):
The Fourth Amendment to the United States Constitution provides that the right of the people to be secure in their persons against unreasonable search and seizure shall not be violated. U.S. CONST. amend. IV. At minimum, the government’s seizure of a citizen must rest on specific, articulable facts that lead an officer to reasonably suspect that criminal activity is afoot. See Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884-85, 20 L.Ed.2d 889, 911 (1968). The Supreme Court in Terry stressed that it had “always recognized” that:
No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.
392 U.S. at 9, 88. S.Ct. at 1873, 20 L.Ed.2d at 898 (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed.2d 734, 737 (1891)). Recognizing “the practical and constitutional arguments pressed with great vigor on both sides,” Terry, 392 U.S. at 10, and the “incredibly rich” diversity in street encounters between citizens and police officers, id. at 13, the United States Supreme Court rejected a “rigid all-or-nothing model of justification and regulation under the Amendment,” id. at 17, and adopted a reasonableness-under-the-circumstances approach. Id. at 19-20. The Court concluded in part that, a police officer could stop and frisk a citizen only if the officer had a reasonable suspicion based on his experience and specific, articulable facts “that criminal activity may be afoot.” Id. at 30.. . .
A person’s well-established freedom to walk away is thus violated when that person is subjected to a statute that makes it a criminal offense to decline a police order to stop. To hold that a citizen may be criminally prosecuted for fleeing after being ordered to stop by a law enforcement officer lacking reasonable suspicion or probable cause to command such an involuntary detention would undermine longstanding search and seizure precedent that establishes the principle that an individual has a right to ignore police and go about his business.
The State argues that persons whose Fourth Amendment rights are violated by an unlawful police order to stop may seek redress through civil liability, the exclusionary rule, or both. We reject this argument for two reasons. First, in cases such as this where the only alleged crime is the act of fleeing itself—versus, for example, the possession of an illegal substance like that in Hodari D., the exclusion of the fruits of such unlawful seizure would be of no benefit to the defendant. Second, we remain unpersuaded that it would be better policy to empower law enforcement to stop anyone on a whim and require aggrieved citizens to undergo the time and expense of civil litigation than to require law enforcement to have a reason for interference.
We agree with the State that the language of the Resisting Law Enforcement statute, on its face, does not expressly require that the order to stop be lawful. Literally applied, however, the “after the officer has . . . ordered the person to stop” element of the statute, if applied in the absence of probable cause or reasonable suspicion, constitutes an unreasonable detention and impairs a citizen’s “right to ignore the police and go about his business,” Wardlow, 528 U.S. at 125, 120 S.Ct. at 676, 145 L.Ed.2d at 577, contrary to the Fourth Amendment.
Rather than invalidate the statute as unconstitutional, however, we prefer to construe it in a manner so that it does not violate the Constitution. “If there is more than one reasonable interpretation of a statute, at least one of which is constitutional, we will choose that path which permits upholding the act.” Baldwin v. Reagan, 715 N.E.2d 332, 338 (Ind. 1999). In Baldwin, we interpreted the Indiana Seatbelt Enforcement Act (which literally authorized law enforcement officers to stop a vehicle “to determine compliance” with the Act) to prohibit a police officer from stopping a motorist in Indiana for a possible seat belt violation “unless that officer reasonably suspects that the driver or a passenger in the vehicle is not wearing a seat belt as required by law.” Id. at 337.
For these reasons, in order to interpret the statute as constitutional, we hold that the statutory element “after the officer has … ordered the person to stop” must be understood to require that such order to stop rest on probable cause or reasonable suspicion, that is, specific, articulable facts that would lead the officer to reasonably suspect that criminal activity is afoot. Absent proof that an officer’s order to stop meets such requirements, the evidence will be insufficient to establish the offense of Resisting Law Enforcement by fleeing.
