Justices wary of giving police greater right to detain people

Case involves Illinois man who was stopped after running at sight of officers

November 03, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A majority of Supreme Court justices balked yesterday at the prospect of allowing police to stop, question and frisk anyone who runs when officers arrive.

The constitutionality of that idea was examined at a one-hour hearing before the court. When the justices rule on the question, probably by next spring, the outcome will affect significantly a type of police encounter that is played out countless times across the nation.

A Chicago prosecutor argued that flight at the sight of police is "inherently suspicious."

As many as six justices, however, appeared unwilling to accept a hard-and-fast rule to govern every situation when an individual approached by police tries to leave the scene.

The Illinois case involves a man who was found to be carrying a gun illegally after police chased him down on a Chicago street in September 1995.

When a caravan of police cars drove up, the officers saw William Wardlow standing next to a building.

There was no sign he was doing anything suspicious. But as soon as he saw the arriving police cars, he fled.

Police chased him, cornered him, and then patted down his clothing and squeezed a bag he was carrying, finding a loaded .38-caliber pistol.

The Illinois Supreme Court overturned his conviction and two-year prison sentence for illegal possession of a gun by a person previously convicted of a serious crime.

Justice Sandra Day O'Connor, noting that the details of such police encounters may vary, said the court in the past has thought it necessary to weigh all of the circumstances in judging the legality of police reaction on the street. She implied she would not want to abandon that approach.

She also seemed troubled about curbing individuals' rights "to go their own way," simply because they did not "want to have anything to do" with arriving officers.

Justice Anthony M. Kennedy, whose vote on the issue, along with O'Connor's, may prove decisive if the court is deeply divided, expressed concern about a ruling that could lead police to "swoop down" on a street scene in hopes of making someone flee, so they could be chased and investigated.

More liberal members of the court -- Justices Stephen G. Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens -- seemed even more hostile to creating an automatic rule to apply whenever a person flees from officers.

Justice Ginsburg said she thought it was only "intuition," not backed up by evidence, to suggest that individuals do not flee from the police unless they have done something wrong.

Justice Souter said too loose a constitutional rein on police pursuit "raises the specter of too many innocent people getting stopped."

During yesterday's hearing, only one justice, Antonin Scalia, embraced enthusiastically the notion that flight from police ordinarily would be enough to arouse police suspicion, prompting them to act. He suggested that flight from police was the equivalent of being seen on the street holding a smoking rifle.

Scalia conceded that "the innocent are going to be caught up in the necessary procedure of assuring the safety of the streets."

Chief Justice William H. Rehnquist also seemed somewhat sympathetic.

He suggested flight when police arrive would justify police suspicion, especially when it was "panicked flight."

The Chicago prosecutor in the case, Richard A. Devine, suggested that the court should rule that police suspicion is always justified anytime an individual fled when seeing an officer in uniform or in a police patrol car and the officers did nothing to provoke the flight.

The Clinton administration supported Devine's argument, with a Justice Department lawyer, Malcolm L. Stewart, arguing that the Constitution does not givepeople in public places the right to evade "police observation."

Chicago attorney James B. Koch, speaking for the Chicago man involved in the case, argued that flight from police would justify an investigative stop only if there were other circumstances that suggested an individual was engaging in crime, or was about to do so.

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