“Just Running” from the Police
December 13, 2022 - Posted by Ed Esposito
Questions often arise among officers as to when they may pursue a person on foot to further their investigation. Remember, not every police encounter is considered a seizure within the meaning of the Constitution. For example, saying “Hello. How are you doing today?” to a member of the public while you are in full uniform and acting in the performance of your duties is not a seizure – it is considered a “mere inquiry.” Adding nothing more to this example, if that person were then turn the other direction and run away from you, would it be appropriate to run after them? Answer: Without having a reasonable suspicion of criminal activity – No. What if the example was different? How about the sudden, unprovoked flight of a person in a high drug-trafficking area, upon sighting a police presence? Answer: Without having a reasonable suspicion of criminal activity – No.
I know that many readers may be questioning this and thinking: “The answer is still “no,” even in a high drug-trafficking area???” Answer: Welcome to New Jersey!
Law enforcement officers in New Jersey need to be aware of some of the many subtle differences between the way the New Jersey Courts have decided cases as compared to the United States Supreme Court. While our State’s Court cannot reduce a person’s Constitutional rights, they can give them more protections under our State’s Constitution. New Jersey officers must pay particular attention to our State’s case law when deciding whether a suspect’s unprovoked flight – even in a high crime area – constitutes a reasonable and articulable suspicion of criminal activity. Remember, a “hunch” is never enough to justify the seizure of a person.
To justify an aggressive foot chase under the New Jersey Constitution, officers should ensure there are criminally-related circumstances present beyond the suspect’s sudden, unprovoked flight in a high crime area upon the mere sight of a police presence. Examples of such circumstances may include:
A seizure of a person in the constitutional sense may be effected by the use of physical force or by a mere show of authority, with the result that an individual’s freedom to walk away has been restrained. Also, if a reasonable person would have believed that they were not free to leave, they are consider “seized” and the proper justification is required.
Questions often arise among officers as to when they may pursue a person on foot to further their investigation. Remember, not every police encounter is considered a seizure within the meaning of the Constitution. For example, saying “Hello. How are you doing today?” to a member of the public while you are in full uniform and acting in the performance of your duties is not a seizure – it is considered a “mere inquiry.” Adding nothing more to this example, if that person were then turn the other direction and run away from you, would it be appropriate to run after them? Answer: Without having a reasonable suspicion of criminal activity – No. What if the example was different? How about the sudden, unprovoked flight of a person in a high drug-trafficking area, upon sighting a police presence? Answer: Without having a reasonable suspicion of criminal activity – No.
I know that many readers may be questioning this and thinking: “The answer is still “no,” even in a high drug-trafficking area???” Answer: Welcome to New Jersey!
Law enforcement officers in New Jersey need to be aware of some of the many subtle differences between the way the New Jersey Courts have decided cases as compared to the United States Supreme Court. While our State’s Court cannot reduce a person’s Constitutional rights, they can give them more protections under our State’s Constitution. New Jersey officers must pay particular attention to our State’s case law when deciding whether a suspect’s unprovoked flight – even in a high crime area – constitutes a reasonable and articulable suspicion of criminal activity. Remember, a “hunch” is never enough to justify the seizure of a person.
To justify an aggressive foot chase under the New Jersey Constitution, officers should ensure there are criminally-related circumstances present beyond the suspect’s sudden, unprovoked flight in a high crime area upon the mere sight of a police presence. Examples of such circumstances may include:
- the late or very early hour of the stop;
- a lookout’s warning of the arrival of the police;
- prior knowledge of the suspect’s criminal history involving weapons or drugs;
- the observation of the suspect attempting to hide himself or a package;
- the suspect in possession of a suspicious package;
- the exchange of money prior to the stop;
- a report of a recent nearby crime;
- an informant’s report of the suspect’s criminal activity;
- a tip reporting criminal activity in the area of a specific street address where the suspect is located;
- the suspect matches the description of an agency’s “be on the lookout” (BOLO) request for a particular “wanted” individual.
A seizure of a person in the constitutional sense may be effected by the use of physical force or by a mere show of authority, with the result that an individual’s freedom to walk away has been restrained. Also, if a reasonable person would have believed that they were not free to leave, they are consider “seized” and the proper justification is required.