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Volume 5, Number 1 | July 2010
Reasonable Suspicion Based on Flight in High Crime Neighborhoods: Whitaker v. Commonwealth, 687 S.E.2d 733 (Va. Sup. Ct., Jan. 15, 2010)
by Jack E. Call
Professor of Criminal Justice
The authority to stop persons based on reasonable suspicion was created by the landmark Supreme Court decision in Terry v. Ohio.1 In Terry, the Court indicated that reasonable suspicion could not be based on a mere hunch. Reasonable suspicion must be based on “specific, articulable facts.”
In Illinois v. Wardlow,2 the United States Supreme Court expanded on what constitute “specific, articulable facts.” The Court ruled that police officers had reasonable suspicion to stop Wardlow, who had run from the police when they approached him while he was in a group of young people assembled in a high crime neighborhood. Wardlow was very important because it established that in determining whether they possess reasonable suspicion to stop someone, the police may take into account that the incident in question is occurring in a high crime neighborhood. The Court concluded that “officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation.”
Wardlow is also important because it established that presence in a high crime neighborhood, combined with flight from the police (at least “head-long flight”), provides reasonable suspicion to think the person fleeing has committed, was committing, or was about to commit a crime.
Prior to Wardlow, I used to tell my students that in order to possess reasonable suspicion to think a crime had occurred, was occurring, or was about to occur, the police probably needed to be able to identify what the crime was. This would be a practical way of determining when the reasonable suspicion threshold had been crossed. If the police could not say (reasonably) what crime they thought the suspicion person was involved in, then they probably did not have reasonable suspicion.
Arguably, Wardlow suggests that my observation was inaccurate. Since the high crime neighborhood in Wardlow was characterized by substantial illegal drug activity, one could argue that the police had reasonable suspicion to think Wardlow was in possession of illegal drugs, but he could just as easily have been fleeing because he possessed an illegal firearm or had recently committed some other crime.
In Whitaker v. Commonwealth, the Virginia Supreme Court applied the Wardlow decision. Richmond police officers Lindsey, Young, and Gilbert approached Whitaker and three other men who were gathered on a public sidewalk in an area known for high drug activity, in front of a chain link fence with a house behind it. The officers were in plain clothes and in an unmarked police car but were wearing placards that said “Richmond police” on them and had a foot-high badge on the placards. The placards were visible from both the front and back of the officers. The officers approached the group to inquire about trespassing because an occupant of the house behind the fence had lodged complaints with the police about trespassers on the property. Lindsey went to the front door of the house. He returned to the group about 90 seconds later. As Lindsey approached the group, Gilbert asked him where Whitaker was going. Whitaker was proceeding away from the group on a bicycle.
Lindsey ran after Whitaker on foot. Gilbert and Young tried to pursue him in the patrol car, but soon parked it and also pursued on foot. Whitaker quickly abandoned his bicycle and began running. He ran around a couple of houses and a church and jumped over two fences. Two of the officers observed Whitaker holding the right pocket of his jacket as he ran. The officers thought this suggested that there might be a gun in Whitaker’s pocket. After running about two blocks, Whitaker slipped on some loose gravel and Lindsey caught up to Whitaker and knelt on him to keep him from getting up. All three officers arrived on the scene shortly thereafter. While they were handcuffing Whitaker, he tried to reach into his jacket pocket. When Lindsey told Gilbert to be careful because Whitaker was trying to get something out of his pocket, Whitaker said. “Sir, I’ve got a firearm in my pocket.”
The officers retrieved the firearm, arrested Whitaker for carrying a concealed weapon, searched him, and found marijuana, cocaine, and $713 in his pants pockets.
The Virginia Supreme Court ruled that Whitaker was not seized until the officers completed handcuffing him. At that time, the officers had reasonable suspicion to think he had committed a crime. The Court could have based this conclusion on the fact that Whitaker ran from the police while in a high crime neighborhood, because that was all the U.S. Supreme Court required for reasonable suspicion in Wardlow. However, the Court did not determine whether this alone was sufficient to establish reasonable suspicion because it pointed out that there were other suspicious circumstances as well – Whitaker’s abandonment of his bicycle, his holding onto his jacket pocket as he ran, and his telling the officers while they were handcuffing him that he had a firearm in his pocket.
This part of the Court’s opinion is relatively straightforward and unremarkable. There should be no surprise that the Court found reasonable suspicion to justify a brief seizure of Whitaker on these facts. However, the next part of the opinion is a little less straightforward and potentially more noteworthy.
Whitaker argued that the drugs and money found in the officers’ search of him after they handcuffed him were inadmissible because they were the products of a search incident to an illegal arrest. The U.S. Supreme Court established in Chimel v. California3 that the police may search a person they have arrested and the area within that person’s immediate control without a search warrant. However, in order for the search to be valid, the arrest must be valid. Whitaker argued that “[i]t is not a crime to possess a weapon … and without verification that he did not have a weapons permit the police lacked probable cause to arrest him for violating the concealed weapons statute.”
The Court assumed, without actually deciding, that Whitaker was under arrest when he was searched. The Court concluded “that Whitaker's arrest for carrying a concealed weapon was lawful because it was supported by probable cause supplied by his spontaneous statement that he had a firearm in his pocket. This statement justified the search of his person for other weapons, during which the presence of the drugs was disclosed.”
If this statement is taken literally at face value, the court appears to be saying that once Whitaker said he had a firearm in his pocket, the officers possessed probable cause to arrest him for carrying a concealed weapon without a permit. Of course, it can be argued that Whitaker’s flight from the officers, his attempts to hold onto his jacket pocket, and his effort to get the gun while he was being handcuffed, combined with his statement to them that he had a firearm, support a reasonable inference that Whitaker was trying to keep the officers from finding the gun because he did not have a permit to carry it. That may be what the Court meant, but unfortunately it is not what the Court said. The Court does not refer to any of the other facts in the case to support its conclusion that the officers had probable cause to arrest Whitaker for carrying a concealed weapon.
Does this case establish a presumption that a person carrying a concealed weapon is doing so without a permit? While the opinion in Whitaker could be read to provide an affirmative answer to this question, it seems more likely that the court was simply not as careful in its language as it meant to be. The more reasonable interpretation of the opinion is that a statement from a suspect that he has a weapon in his possession provides probable cause to arrest that person for carrying a concealed weapon without a permit, if the statement occurs in circumstances that provide reasonable suspicion to detain the person temporarily. In the vast majority of situations, the reasonable suspicion to stop the suspect should justify a detention (short of arrest) long enough to permit the police to run a records check. The records check would confirm whether the suspect does or does not have a carry permit. Of course, if the suspect does not have a carry permit, he could then be arrested.