12 Pages Posted: 14 May 2010
Date Written: May 13, 2000
The Supreme Court first articulated the general rules governing brief encounters between police officers and citizens in public areas over three decades ago in Terry v. Ohio. That decision legitimated an officer's conducting a brief investigative stop, now commonly known as a Terry stop, and prompted a new body of Fourth Amendment case law seeking to strike the proper balance between the needs of law enforcement and the rights of citizens to go about their business free from police interference. Last Term, in Illinois v. Wardlow, the Court added another piece to its patchwork quilt of decisions in this area, holding that flight from a police officer in a high-crime area can create the reasonable suspicion necessary to justify a Terry stop. Although the majority and partial dissenting opinions both applied a totality of the circumstances test to determine whether there was reasonable suspicion, their respective applications of the test differed markedly. In the hands of the majority, the totality of the circumstances test becomes difficult to distinguish from a per se rule, whereas in the hands of the partial dissent, it exhibits its potential as a more nuanced test, capable of taking into account the broad range of factors that arise in a diverse, modern world. The opinions are similar, however, in that neither fully acknowledges or confronts the difficult question inevitably raised by the Court's endorsement of flight as a factor in determining reasonable suspicion: how and to what extent courts should consider the race of a citizen fleeing from the police. Though problematic, the Court's reluctance to address the salient issue of race is nevertheless understandable given the issue's complex nature and the expenditure of political capital that any attempt to resolve it would require.
Keywords: criminal procedure, Terry stop, Fourth Amendment, reasonable suspicion
Suggested Citation: Suggested Citation
Chiang, Emily, Case Comment - United States V. Wardlow, 120 S.Ct. 673 (2000) (May 13, 2000). Harvard Law Review, Vol. 120, p. 673, 2000. Available at SSRN: https://ssrn.com/abstract=1606932