Flight provoked lawfully or unlawfully under Wardlaw

N.M. deals with the question of whether flight under Wardlow and Hodari D. was lawfully provoked or unprovoked. State v. Harbison, 2007 NMSC 16, 141 N.M. 392, 156 P.3d 30 (2007):

We recognize that the Wardlow analysis ultimately turns on whether the Defendant’s flight was provoked or unprovoked. Id. at 124 (stating reasonable suspicion founded on the defendant’s presence in high crime area combined with “unprovoked flight upon noticing the police”). The lack of provocation is critical. We agree with the position of the Eleventh Circuit Court of Appeals in United States v. Franklin, 323 F.3d 1298 (11th Cir. 2003), acknowledging that “officers cannot improperly provoke–for example, by fraud–a person into fleeing and use the flight to justify a stop.” Id. at 1302 (citing Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963)); see also id. at 1305 (Pogue, J., dissenting) (“The police may not frighten an individual into fleeing, and then assert his flight as a justification for pursuing and stopping him.”); People v. Thomas, 198 Ill. 2d 103, 759 N.E.2d 899, 905, 259 Ill. Dec. 838 (Ill. 2001) (upholding denial of suppression motion despite officer’s lack of reasonable suspicion at the time of attempted seizure because the officer “did not act without reason or for the sole purpose of provoking the defendant’s flight”). Thus, if police action at the moment of an attempted seizure is illegal and taken for the purpose of provoking flight, then flight in response to that action, being unlawfully provoked, may not be factored into the reasonable suspicion equation. To hold otherwise would create

“great opportunities for police mischief in the gulf lying between Wardlow and … Hodari D. Hodari D. says that police pursuit, even when it makes apparent to the suspect a police intent to seize him, is not subject to Fourth Amendment limits. Surely it does not follow that such provocative activity may be deemed to provide the reasonable suspicion the police will need once they catch up with the suspect and take control of him.”

4 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.5(f), at 530-31 (2004) (footnote omitted); see also Thomas, 759 N.E.2d at 905 (agreeing that its holding was not to be construed as giving “a license to conduct investigatory stops in every case where a citizen ignores, or fails to heed, a baseless police order or show of authority”).

In the case before us, however, the record does not support a conclusion that Defendant’s flight was unlawfully provoked. There is no evidence in the record of fraudulent conduct on the part of the police or actions taken “without reason or for the sole purpose of provoking [Defendant’s] flight.” Thomas, 759 N.E.2d at 905. The officers were acting appropriately in attempting to investigate a crime that had just occurred. The officers were legitimately present at the scene with probable cause to arrest Clark, who was known to have just completed a drug transaction. When the officers got out of their cars, Defendant fled. Given Defendant’s proximity to the crime scene combined with the officers’ need to maintain the status quo pending a brief investigation, and especially given the lack of record evidence that the police acted unlawfully to provoke Defendant’s flight so as to justify his seizure, we conclude, by applying Wardlow, that the police had reasonable suspicion to pursue Defendant and subject him to a brief investigatory stop. See generally 2 Wayne R. LaFave, Jerold H. Israel, & Nancy J. King, Criminal Procedure § 3.8(b) (1999) (indicating that a brief investigatory stop is appropriate not only to prevent crime but to also help detect it and suggesting that, in the immediate aftermath of a crime, an officer may be entitled to freeze a situation for a short time to make inquiry and determine possible perpetrators).

From the testimony, officers lacked reasonable suspicion to stop a pedestrian, and his public intoxication conviction was reversed. The only thing he did was react to the police vehicle that drove in his direction making a U-turn. Rich v. State, 864 N.E.2d 1130 (Ind. App. 2007).*

Defendant’s father had possession of real property and could consent to his son’s vehicle parked on the property which had switched vehicle licenses. The vehicle contained potential evidence in a murder case. Ross v. State, 954 So. 2d 968 (Miss. 2007).*

N.Y. Town Justices recused themselves from issuing a search warrant for a police dispatcher’s house. By the time a different justice was obtained, the warrant application was void, and it was also issued without jurisdiction. People v Alteri, 2007 NY Slip Op 27160, 16 Misc. 3d 167, 835 N.Y.S.2d 869 (New York Co. 2007).*