E-Newsletter Edition: June 11, 2008

Response Provided By:
Brian S. Batterton, J.D.

Always note that state law may be more restrictive on police power than the U.S. Constitution.


Could you please clarify when unprovoked flight at the sight of a police officer is considered reasonable suspicion to pursue and detain for investigatory purposes.



The primary case that is used in answering this question is Illinois v. Wardlow, which was decided by the United States Supreme Court in 2000.i  In this case, Wardlow, who was in an area known for heavy narcotics trafficking, was holding an opaque bag.  He fled upon seeing a caravan of four police cars converge on an area known for heavy narcotics trafficking. Two uniformed officers cornered Wardlow on the street; one of the officers exited the car, stopped the accused, and immediately conducted a pat-down search for weapons because, in the officer’s experience, it was common for there to be weapons in the near vicinity of narcotics transactions. During the frisk, the officer discovered handgun in the bag and live ammunition, whereupon the officer arrested the accused.  The United States Supreme Court has previously held that, in order to justify an investigative detention, officers must possess reasonable suspicion that the suspect is involved in criminal activity.ii  Thus, the issue in this case was whether the suspect’s unprovoked flight from officers, while in a high drug trafficking area, provided the officers with sufficient reasonable suspicion to justify the investigative detention and frisk that led to the discovery of the gun.  The Supreme Court stated:

Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.iii

Therefore, the court held that, while presence in a high crime area, standing alone, is not sufficient to establish reasonable suspicion,iv when coupled with unprovoked flight at the sight of the police, this amounted to sufficient reasonable suspicion to justify the stop.
In spite of the holding of the United States Supreme Court in Wardlow, it is well known that a state can interpret its own constitution more restrictively than the U.S. Supreme Court interprets the U.S. Constitution.  This appears to be the case in Tennessee.  In 2006, the Supreme Court of Tennessee decided Tennessee v. Nicholson, which involved facts similar, but not identical, to Wardlow.v  In this case, a detective in an intelligence unit, in conjunction with other officers, was conducting surveillance in a housing project at 11:30pm.  They observed a large group of men and observed what was described as “numerous hand to hand transactions.”   The detective later testified that he and other officers decided to approach the men to gather “gang intelligence.”  As the officers approached, several of the men in the group fled.  The detective testified that he gave chase but lost his suspect.  As he was returning to the original location, he observed a male (Nicholson) walking away from the area.  The officer said “hold up” to the man at which time he fled.  Officers told him to “stop, police” but he continued to flee.  He was caught and he resisted by “kicking and struggling.”  He was found to be in possession of cocaine.

The Tennessee Supreme Court was posed with the issue of whether the suspect was seized without reasonable suspicion of criminal activity.

It is important to note that the Tennessee, based upon an interpretation of its Constitution, does not follow the holding of the United States Supreme Court in California v. Hodari D.vi  In this case, the U.S. Supreme Court held that Hodari was not seized when the police ordered him to stop and he fled.  The court stated that a seizure takes place when a person submits to police authority, or is physically seized by police.  However, in Tennessee v. Randolph, the Tennessee Supreme Court declined to follow the U.S. Supreme Court’s holding in Hodari D., and instead applied a totality of the circumstances analysis and the standard of whether a reasonable person would have believed that he or she was not free to leave.vii  Based upon this Tennessee precedent, the court, in Nicholson, found that the suspect was seized at the point the police said “stop police” after he had fled.

The court then held that the officer did not have reasonable suspicion to seize Nicholson by ordering “stop police” after he fled the officers original request to “hold up.”  First, the court stated:

As far as the record indicates, [the] Detective seized Defendant on the basis of three observed facts: 1) Defendant’s proximity to an area being investigated for gang activity; 2) Defendant’s refusal to “hold up” when told to do so; and 3) Defendant’s rapid flight from his encounter with Detective Lockwood.viii

The court noted that the first two factors above will not alone provide reasonable suspicion to justify a detention.ix  Thus, the final factor (the flight) will be the deciding factor in this case.  To this end, the court stated :

We agree with the United States Supreme Court that a location’s characteristics may be relevant to amassing reasonable suspicion. We also agree that “nervous, evasive behavior” by someone may contribute to the conclusion that further investigation is warranted. We further agree that “headlong flight” is evasive behavior in the extreme. We decline to conclude, however, that flight from a police officer’s demand to “hold up” is “certainly suggestive” of wrongdoing [emphasis added].  Rather, we quote with approval from the majority decision by the Court of Criminal Appeals in this case:
while we do not wish to encourage flight from officers . . ., we realize from a practical standpoint that flight does not always amount to reasonable suspicion. In fact, innocent reasons for flight abound in high crime areas, including: fear of retribution for speaking to officers, unwillingness to appear as witnesses, and fear of being wrongfully apprehended as a guilty party.  We are particularly mindful of the potential for “retribution for speaking to officers” in an area being investigated for gang activity.x

In articulating its reasoning for the above conclusion that the flight in this case was not sufficient to establish reasonable suspicion the court stated:

[the] Detective did not testify about the location’s characteristics in this case, other than that it was a public housing area being investigated for gang activity. [The] Detective did not testify that he witnessed criminal activity immediately prior to seeing Defendant, or that Defendant was behaving in some manner indicative of criminal conduct. Defendant simply happened on the scene after [the] Detective had unsuccessfully chased other persons. When [the] Detective told Defendant to “hold up,” Defendant turned and ran. At that point, [the] Detective gave chase and ordered, “stop police,” thereby seizing Defendant. Based on the proof in the record before us, [the] Detective simply did not have, at that time, specific and articulable facts sufficient to support an inference of criminality and to provide him with reasonable suspicion to seize Defendant. The State having failed to carry its burden of proving that [the] Detective’s seizure of Defendant upon his flight was supported by reasonable suspicion, we are constrained to declare the seizure invalid.  We hold that,  based on the totality of the circumstances indicated in the record  before us, [the] Detective’s seizure of Defendant was unreasonable under article I, section 7 of the Tennessee Constitution.xi

In conclusion, it appears that Tennessee, based upon its state Constitution, is somewhat more restrictive that the United States Supreme Court on this topic.  However, we can take a few suggestions from the high court of Tennessee.  Based upon the quote above, an officer, in writing his report and testifying in court, should keep in mind the following points:

  • The nature of the area – be specific, such as “a high drug area where there have been X number of arrests for drugs and X number of complaints and crimes in the area.  This would also apply to gang activity (i.e.: describe number of gang members encountered in the area, graffiti and number of gangs known to operate in the area.
  • Specific conduct of the suspect that is indicative of criminal activity to the point of reasonable suspicion – in Nicholson, the court noted that the officer did not describe specific conduct, beyond “happening upon” the scene and flight.  In this case, the officer testified that he did not originally recognize Nicholson, had not seen him earlier that night, and did not have any reports on Nicholson. He further testified that he was not engaged in any illegal conduct at the time he saw him.  The Tennessee court seems to suggest that, in Tennessee, reasonable suspicion should be present at the time of the flight in order to justify a detention. – [The court stated the officer “simply did not have, at that time, specific and articulable facts sufficient to support an inference of criminality and to provide him with reasonable suspicion to seize Defendant.”]xii
  • Do not use terms that are characterized as police “lingo.”  The officer in this case testified that he saw “hand to hand transactions.”  The lower court correctly inferred these were drug transactions, but the Tennessee Supreme Court refused to do so.  If an officer sees “hand to hand transactions” that, by his training and experience appear to be consistent with drug transactions, it is better to state the obvious.


i 528 U.S. 119 (2000)

ii Terry v. Ohio, 392 U.S. 1 (1968)

iii Wardlow, 528 U.S. at 124

iv Brown v. Texas, 442 U.S. 47 (1979)

v 188 S.W. 3d 649 (Tenn. 2006)

vi 499 U.S. 621 (1991)

vii 74 S.W. 3d 330 (Tenn. 2002)

viii Nicholson, 188 S.W. 3d at 660

ix Id.at 660-661

x Id.at 661

xi Id.at 661-662

xii Id.at 661

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