{"id":2823,"date":"2009-02-10T08:18:15","date_gmt":"2008-12-31T10:43:11","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-12-31T10:43:11","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2823","title":{"rendered":"VA: Defendant had right to walk away from approaching officer"},"content":{"rendered":"

The defendant was seen with a group of men by a bike cop who headed toward them in what the officer described was a “high crime area.” The defendant walked 15′ to his town house. This was not “headlong flight” as in Wardlow<\/a>. The defendant had a right to walk away from the officer. Jones v. Commonwealth<\/a>, 53 Va. App. 171, 670 S.E.2d 31 (December 23, 2008):<\/p>\n

The facts of the instant case can hardly be equated to those of Wardlow<\/a>. Unlike the facts in Wardlow, the officers in the instant case were on a routine patrol, not targeting participants in a drug transaction at a specific location where drug transactions were known to frequently occur. Furthermore, Jones carried no item, such as the opaque bag in Wardlow, which together with the other circumstances, would objectively indicate his involvement in criminal activity. Jones’ “brisk” walk of some fifteen feet to a nearby townhouse upon seeing the officers can hardly be equated to the “headlong flight” of Wardlow. The Commonwealth also points to Jones’ “[n]ervous, evasive behavior” to support its contention that the seizure was supported by reasonable suspicion. Specifically, that Jones refused to heed the officer’s requests to stop. However, citizens who are not under arrest or otherwise detained have every right to refuse or ignore requests from law enforcement officers. “[W]hen an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business.” Id. at 125 (citing Florida v. Royer<\/a>, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). Moreover, a “‘refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.'” Id. (quoting Florida v. Bostick<\/a>, 501 U.S. 429, 437, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)). That was precisely what occurred here. Under these circumstances, Jones’ failure to obey the officer’s instructions cannot serve as the justification for his seizure.<\/p><\/blockquote>\n

(Comment:<\/em> The state’s argument here proved too much. It wants to be able to say that a person had a right to refuse a purely consensual encounter with the officer, but then require the defendant to not walk away.)<\/p>\n","protected":false},"excerpt":{"rendered":"

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