>> PLEASE RISE.

LADIES AND GENTLEMEN, THE

FLORIDA SUPREME COURT.

PLEASE BE SEATED.

>> THE LAST CASE ON THE COURT'S

AGENDA TODAY IS C.E.L. VERSUS

STATE.

>> MAY IT PLEASE THE COURT.

MATTHEW BERNSTEIN FOR C.E.L..

YOUR HONORS, IN THIS CASE TWO

DEPUTIES WALKING THROUGH A

NEIGHBORHOOD IN TAMPA,

AIMLESSLY WALKING AROUND

BASICALLY.

THEY SAID THEY WERE REFERENCING

A DRUG COMPLAINT BUT THAT MAYBE

HAPPENED THE DAY BEFORE.

IT WASN'T A SPECIFIC DRUG

COMPLAINT.

THIS WASN'T A SPECIFIC 911 CALL

WHERE THEY WERE RESPONDING TO A

SPECIFIC CALL.

AS THE OFFICERS WERE PATROLLING

THIS NEIGHBORHOOD THEY SAW

C.E.L. STANDING THERE WITH ONE

FRIEND OR TWO.

ONE OFFICER SAID TWO PEOPLE.

ANOTHER OFFICER SAID THREE

PEOPLE.

THE INDIVIDUAL, C.E.L. AND HIS

FRIENDS WERE DOING NOTHING

WRONG.

OFFICERS DID NOT OBSERVE C.E.L.

DO ANYTHING ILLEGAL.

THEY DIDN'T SOB SERVE HIM DO

ANYTHING WRONG WHAT SORRY.

>> WHAT TIME OF THE DAY OR

NIGHT?

>> ABOUT 9:00 AT NIGHT.

>> AND OFFICERS WERE OR WERE

NOT --

>> THEY WERE WEARING PLAIN

CLOTHES BUT THEY HAD VESTS WITH

SHERIFF MARKED ACROSS THE

FRONT.

>> I THOUGHT, HELP ME ON THIS,

BECAUSE IT CONCERNS ME, YOU

CONCEDE THAT AT THE THAT THE

DEFENDANT TOOK FLIGHT, THAT,

UPON SEEING THE DEPUTIES, THAT

AT THAT POINT UNDER WARDLOW,

REASONABLE SUSPICION DEVELOPED,

IS THAT CORRECT?

>> UH-HUH.

>> SO THAT IS NOT, WE HAVE A

SITUATION WHERE SOMEONE COULD

HAVE ARGUED BELOW THIS IS NOT

LIKE WARDLOW HE WAS HANGING

AROUND IN A APARTMENT COMPLEX.

COULD HAVE EXPLAINED HIS

BEHAVIOR WHY HE TOOK FLIGHT.

THAT, YOU KNOW, KIDS ARE

DIFFERENT THAN ADULTS, NONE OF

THAT CAME OUT IN THIS RECORD?

>> NO. I CAN SEE UNDER

WARDLOW THEY HAD --

>> CONCERNS ME THERE IS THAT

CONCESSION.

SEEMS TO ME WE HAVE ALL THESE

CASES INVOLVE JUVENILES AND

JUVENILES CERTAINLY, UPON

SEEING POLICE ARE PERHAPS GOING

TO REACT DIFFERENTLY THAN

ADULTS AND, WE ARE

CRIMINALIZING A WHOLE GROUP OF

KIDS THAT ARE IN, QUOTE, BAD

NEIGHBORHOODS.

BUT BE THAT, SINCE IT IS NOT

CONTESTED HERE, I WANT TO MAKE

SURE WE UNDERSTAND THAT, THEN

YOU'RE SAYING YOU AGREE THERE

WAS REASONABLE SUSPICION TO BE

ABLE TO STOP HIM AFTER HE TOOK

FLIGHT?

>> I'M NOT CONCEDING THAT THAT

CONDUCT WAS CRIMINAL.

I'M CONCEDING THERE WAS A

REASONABLE SUSPICION FOR A

TERRY STOP.

>> OKAY.

SO IN THE TERRY STOP, AT THE

POINT THEN THEY CALL OUT, STOP,

AREN'T THEY GIVING A LAWFUL

ORDER?

>> WELL, YOU HAVE TO LOOK,

UNDER THIS COURT'S OPINION IN

TILLMAN, YOU HAVE TO LOOK AT

THE MOMENT THE RESISTANCE

OCCURRED.

THE MOMENT RESISTANCE OCCURRED

IN THIS CASE THE MOMENT HE

STARTED RUNNING.

>> THAT HAS TO BE YOUR POINT.

YOUR POINT, WHICH IS WHAT THE

THIRD DISTRICT SAYS, AND I'M

HAVING, IS THAT THE FLIGHT IS

CONTINUOUS AND THAT, SO THAT

THE PROBABLE, THE REASONABLE

SUSPICION HAS TO DEVELOP BEFORE

HE --

>> STARTED RUNNING.

>> BUT THE SECOND DISTRICT ALL

SAY, NO, YOU START RUNNING, AND

THEN THERE'S A LAWFUL ORDER TO

STOP, BY CONTINUING TO RUN --

>> RIGHT.

>> -- YOU ARE RESISTING.

>> BUT THE POINT IS --

>> IS THAT HOW THEY COME UP

WITH THIS?

>> THE POINT IS ONE CONTINUOUS

FLIGHT.

ONE ACT STARTS AT THE MOMENT HE

STARTED TO RUN.

>> IS THAT A ISSUE OF LAW OR

FACT?

>> THAT'S AN ISSUE OF LAW.

>> WHERE DO WE COME UP WITH

THAT?

IN OTHER WORDS, IF SOMEBODY

STARTED WALKING AND THEN THEY

START RUNNING, --

>> THAT'S WHY IF YOU FOLLOW THE

THIRD DCA'S OPINION AND HOLD

THAT YOU HAVE REASONABLE

SUSPICION BEFORE THE SUSPECT

FLEES, IT OBVIATES THE NEED TO

GET INTO THAT.

IN THIS CASE, C.E.L. WHEN THEY

FIRST SAW HIM THEY HAD ONLY

ENOUGH FOR CONSENSUAL

ENCOUNTER.

ON THAT MOMENT HE RUNS AND IT

IS ONLY CONSENSUAL ENCOUNTER

THEY HAVE NO DUTY TO STOP HIM.

THAT IS DIFFERENT, THAN C.E.L.

RUNS THEY LATER CATCH HIM AND

STOP HIM, GIVE ME YOUR I.D.

WE'LL STOP YOU AND INVESTIGATE

THIS.

THEY HAVE CONVEYED A INTENT TO

DETAIN HIM.

IF HE RUNS AFTER THAT THEN HE

WOULD BE GUILTY OF RESISTING

WITHOUT VIOLENCE.

THAT WOULD BE A SECOND ACT OF

FLIGHT.

WHEN THERE IS ONLY ONE ACT OF

FLIGHT, THEN YOU HAVE TO LOOK

AT THE MOMENT THAT THAT FLIGHT

BEGINS.

SO THAT'S HOW, THAT'S THE

DIFFERENCE BETWEEN THE SECOND

DCA AND THIRD DCA I THINK THE

SECOND DCA FOCUSED TOO MUCH ON

THE ORDER ITSELF.

YOU DON'T FOCUS I DON'T THINK

IT IS PROPER TO FOCUS ON THE

ORDER.

>> IF THEY HAD NOT, FOCUSING ON

THE ORDER BRINGS TO MIND, IF

THE OFFICER HAD NOT SAID STOP,

BUT JUST FOLLOWED, THE

DEFENDANT, I MEAN IS IT REALLY

FOCUSING ON THE ORDER OR, WHAT?

IF HE HAD NOT SAID STOP AND

JUST FOLLOWED THE DEFENDANT,

WOULD, HAVE A DIFFERENT

SITUATION?

>> I DON'T THINK THAT CHANGES

THE ANALYSIS BECAUSE YOU STILL

HAVE TO FOCUS ON THE FLIGHT.

SO, FOR INSTANCE, IF AN OFFICER

SAYS TO SOMEONE, YOU'RE UNDER

ARREST, THAT CONVEYS AN INTENT

TO DETAIN.

THEN THE PERSON RUNS, I DON'T

THINK THEY WOULD HAVE TO SAY

STOP IN ORDER FOR THAT FLIGHT

TO CONSTITUTE RESISTING.

>> THIS CASE IS ONE WITH OF THE

MOST TROUBLING CASES THAT I

HAVE SEEN BECAUSE WHAT WE ARE

DOING, AND WHAT THE SECOND

DISTRICT OPINION SAYS TO ME, IS

THAT PEOPLE WHO LIVE IN POOR

NEIGHBORHOODS THAT ARE LIKELY

TO BE HIGH-CRIME AREAS, ARE

GOING TO BECOME CRIMINALS IF

THEY RUN FROM THE POLICE.

AND WE KNOW THAT IN THOSE

NEIGHBORHOODS, MANY OF THOSE

PEOPLE HAVE SOME REASON TO RUN

FROM THE POLICE.

>> YES.

>> YET IF THEY LIVE IN MY

NEIGHBORHOOD BASICALLY AND DID

THE SAME THING NOTHING WOULD

EVER HAPPEN TO THEM.

SO THIS IS TO ME, ONE OF THE

MOST TROUBLING CASES I HAVE

EVER SEEN.

THAT WE ARE GOING TO

CRIMINALIZE A WHOLE GROUP OF

PEOPLE BECAUSE THEY DON'T WANT

TO BE BOTHERED WITH THE POLICE.

>> WELL IF YOU HOLD THAT YOU

HAVE TO HAVE REASONABLE

SUSPICION BEFORE THE PERSON

FLEES YOU WOULD NOT BE

CRIMINALIZING THAT CONDUCT.

>> ISN'T THE BASIC PROBLEM WITH

WARDLOW, IN OTHER WORDS IF YOU

READ JUSTICE STEVENS DISSENT.

JUSTICE STEVENS DISSENT IS

EXPRESSING WHAT JUSTICE QUINCE

HAS STATED.

WHAT CONCERNS ME HERE WITHOUT

QUESTIONING WHETHER WARDLOW

ALMOST ANNOUNCED A PER SE RULE,

YOU KNOW THE, WHOEVER

REPRESENTED MR.^C.E.L. BELOW

JUST SIMPLY CONCEDED THAT.

RATHER THAN TRYING TO SHOW THAT

MAYBE HE HAD AN INNOCENT REASON

FOR LEAVING.

OR ANYTHING OF THAT.

BUT WE DON'T, BUT WE'VE GOT TO

DEAL WITH THE FACT THAT YOU

HAVE JUST SAID NO, THERE WAS

REASONABLE SUSPICION TO STOP

HIM.

ONCE HE STARTED RUNNING EVEN

THOUGH HE COULD HAVE BEEN

RUNNING BECAUSE HE WAS LATE FOR

DINNER OR GOING RUNNING TO A

FRIEND'S HOUSE OR RUNNING

BECAUSE YOU SEE POLICE AROUND

AND YOU DON'T WANT TO HAVE TO

TALK TO POLICE.

>> I THINK THE DIFFERENCE

THOUGH, THE BIG DIFFERENCE IN

WARDLOW IT IS NOT CRIMINAL.

MINIMAL INTRUSION.

THAT IS THE SUPREME COURT

LANGUAGE, MINIMAL INTRUSION TO

INVESTIGATE FURTHER.

SO THE SUPREME COURT DIDN'T

CRIMINALIZE THAT CONDUCT.

THEY SAID IT PROVIDES SUSPICION

FOR INVESTIGATORY STOP.

>> THIS IS THE PROBLEM.

THEY SAY IT PROVIDES THE

ABILITY FOR POLICE TO DETAIN

SOMEONE FOR AN INVESTIGATORY

STOP.

IN ORDER TO DO THAT, THEY HAVE

TO BE ABLE TO ISSUE LAWFUL

ORDERS TO PEOPLE WHO ARE

FLEEING TO STOP.

WARDLOW SO I GUESS I'M HAVING

TROUBLE UNDERSTANDING THIS

IDEA, ALTHOUGH IT IS APPEALING

FROM A PUBLIC POLICY POINT OF

VIEW, HOW UNDER THE LAW WE GET

TO YOUR, TO YOUR ARGUMENT OTHER

THAN SAYING, LISTEN THIS IS

NOT, COULD NOT BE WHAT THE

SUPREME COURT INTENDED.

IT COULDN'T BE WHAT THE

LEGISLATURE INTENDED FOR

RESISTING ARREST.

THAT THERE HAS TO BE A SEPARATE

ACT THAT OCCURS AFTER THE

LAWFUL ORDER IS ISSUED.

AND I AM NOT SURE I KNOW IT IS

HOW WE GET THERE.

>> WHAT I THINK SPECIFICALLY

HAPPENS IN THIS HIGH-CRIME

NEIGHBORHOODS IS THE POLICE

DRIVE UP.

JUST LIKE EIGHT OR NINE GUYS,

HANGING OUT.

AS SOON AS THEY SEE A POLICE

CAR, THEY BOLT.

IN WARDLOW, IF THE POLICE WAS

TO CHASE THEM, THAT GIVES THEM

SUSPICION, REASONABLE SUSPICION

TO CONDUCT A TERRY STOP.

ONCE THEY STOP THEM, THEY PAT

THEM DOWN, FIND NOTHING, THEY

GOT TO LET THEM GO.

>> RIGHT.

>> THIS INSTANCE, IF THEY HAVE

FIND SOMETHING, THEY HAVE

SUSPICION TO STOP THEM AND CAN

ARREST THEM FOR POSSESSION OF

WHATEVER.

>> ONLY IF THAT REASONABLE

SUSPICION RIPENS INTO PROBABLE

CAUSE FOR ARREST.

>> NOW THIS INSTANCE, I THINK

THIS IS THE CAUSE OF THIS,

AT LEAST WHAT THE SECOND DCA

SAID THE REASON THAT ABLE TO

CHARGE HIM WITH OBSTRUCTION OR

RESISTING ARREST WITHOUT

VIOLENCE BECAUSE THE OFFICER

ORDERED HIM.

>> RIGHT.

>> AND I BELIEVE THAT THE JUDGE

THAT WROTE THE OPINION

BASICALLY SAID, THE OFFICER HAD

A LEGAL RIGHT TO BE IN A

POSITION HE WAS IN TO ORDER HIM

TO STOP.

OKAY? HOW IS, AS FAR AS THE DID NOT

HAVE THE OBSTRUCTION CHARGE IN

THE BOOKS, THEN IN THIS CASE,

ONCE THEY STOPPED HIM AND FOUND

NOTHING THEY HAD TO LET HIM GO.

BUT WE DO HAVE THAT LAW.

HOW IS THAT NOT OBSTRUCTION

WHEN AN OFFICER HAS A LEGAL

RIGHT TO BE WHERE HE IS AT AND

COMMANDS SOMEONE TO STOP?

>> AS I SAID YOU HAVE TO LOOK,

IT IS ONE ACT OF FLIGHT.

ONE ACT OF FLIGHT.

YOU HAVE TO LOOK AT THE FLIGHT

ITSELF.

FOR INSTANCE IF AN OFFICER SAYS

YOU'RE UNDER ARREST, DON'T SAY

ANYTHING ELSE, AND THE SUSPECT

SAYS, YES, SIR.

OFFICER SAYS, OH, THAT IS

OBSTRUCTION, NO, IT IS NOT.

UNDER THE CASE LAW THAT TO

INTERFERE WITH THE LAWFUL

DUTIES.

IT WOULD HAVE TO INTERFEAR WITH

THE ARREST.

IN THIS CASE YOU HAVE TO LOOK

AT THE FLIGHT.

AND THE FLIGHT BEGAN WHEN THE

OFFICER ONLY HAD ENOUGH FOR A

CONSENSUAL ENCOUNTER.

EVEN THOUGH HE IS LAWFULLY

ORDERING HIM TO STOP YOU KIND

OF SPLITTING UP ONE ACT, IT

CREATES KIND OF A MESS AND

THERE IS NO REAL BRIGHT LINE.

FOR INSTANCE IF THE OFFICER

YELLS STOP AND YOU TAKE THREE

MORE STEPS, I DON'T KNOW WHAT

THAT WOULD BE.

>> WHAT YOU'RE SAYING IS, THAT

IT IS AN ILLEGAL STOP, I MEAN,

OBSTRUCTION DOESN'T APPLY

BECAUSE IT FOLLOWS FROM THE

SAME FLIGHT?

>> RIGHT.

>> ONE INCIDENT.

>> RIGHT.

>> BUT THAT FLIGHT GAVE THE

OFFICERS THE RIGHT TO BE

PRESENT AND TO COMMAND THAT

THEY STOP.

>> WELL, IN THE DTB OPINION

THEY QUOTE, CONCURRENCE FROM

FLIGHT.

WHICH STATES WARDLOW DEALS WITH

THE CONSEQUENCE OF THE ACTIONS.

SO IF THIS WERE TO ARISE IN A

MOTION TO SUPPRESS WHICH WE'RE

NOT DEALING WITH HERE, BUT

WHERE WARDLOW IS USUALLY

APPLICABLE IN A FOURTH

AMENDMENT SUPPRESSION CONTEXT

THE THEN THE OFFICER HAS THE

RIGHT TO STOP THEM, IF THEY

BELIEVE THEY HAVE WEAPONS THEY

CAN PAT THEM DOWN.

>> YOU HAVEN'T ANSWERED WHAT

JUSTICE LABARGA WAS ASKING,

WHAT I ASKED PREVIOUSLY, WHICH

IS IF HE HAS GOT THE LAWFUL

DUTY WHICH ARISES AS HE BEGAN

TO, AS THE DEFENDANTS BEGAN TO

RUN AND THE OFFICER HAS A

LAWFUL DUTY TO ASK HIM TO STOP,

HOW IS HIM, HOW IS C.E.L. NOT

STOPPING AFTER BEING TOLD TO

STOP NOT OBSTRUCTING THE

OFFICER IN A LAWFUL PERFORMANCE

OF HIS DIET AND LAWFUL

PERFORMANCE OF HIS DUTY BEING

HE HAD A RIGHT TO HAVE AN

INVESTIGATORY STOP AT THAT

TIME?

I DON'T LIKE IT BUT I'M JUST

TRYING TO UNDERSTAND HOW YOU

CAN SAY BY SAYING, CONTINUOUSLY

RUNNING THAT REALLY DOESN'T

SOLVE THE PROBLEM JUSTICE

QUINCE IS TALKING ABOUT WHICH

IS STILL WE'RE PUTTING PEOPLE

IN POSITIONS HAVING TO BE

SUBJECT TO INVESTIGATORY STOPS.

SO I'M STILL NOT SURE I GET

YOUR, WHERE, AS A MATTER OF LAW

THE RESISTING ARREST STATUTE

MUST BE APPLIED THE WAY YOU

ARE, YOU KNOW, ARE URGING?

>> LIKE I SAID I HATE TO

REITERATE, IF TILLMAN SAYS THE

POINT THE RESISTANCE OCCURS, SO

THIS COURT, IF THIS COURT

ADOPTS C.E.L., THEN THE

RESISTANCE WOULD BE DEFIANCE OF

THE ORDER WHICH IS NEVER UNDER

FLORIDA LAW, NEVER CONSTITUTED

DEFIANCE.

THE DEFIANCE IS ACTION ITSELF.

>> I THOUGHT IT IS RUNNING

AFTER ISSUANCE OF THE LAWFUL

ORDER?

>> IT IS THE RUNNING AS A

WHOLE.

>> ISN'T THAT WHAT THE SECOND

DISTRICT SAID?

IT IS CONTINUOUS RUNNING AFTER

BEING LAWFULLY ORDERED TO STOP?

>> WELL THE SECOND DCA SAID IT

IS DEFIANCE OF ORDER AND

CONTINUING TO RUN.

BUT THERE'S ONLY ONE ACT OF

FLIGHT.

I THINK THAT'S, THAT'S THE REAL

STICKING POINT.

UNDER TILLMAN THIS COURT COULD

HOLD INTEREST IS ONLY ONE ACT

OF RESISTANCE, ONLY ONE ACT,

AND AT THAT MOMENT WHEN THE

RESISTANCE BEGAN THERE WAS ONLY

ENOUGH FOR CONSENSUAL

ENCOUNTER.

>> IS IT REALLY ILLOGICAL

TO SAY IF YOU'RE RUNNING AND

YOU ARE ORDERED TO STOP AND YOU

DON'T, THAT THAT IS SOMEHOW

DIFFERENT THAN IF YOU'RE

RUNNING, ORDERED TO STOP, YOU

STOP FOR A MOMENT AND THEN RUN

AGAIN?

I'M MISSING THE LOGIC BEHIND

THIS.

>> I MEAN THE DTB OPINION SAYS

AND PARKER OPINION FROM THE

FIRST DCA CIRCULAR LOGIC TO

HAVE THE FLIGHT CONSTITUTE

REASONABLE SUSPICION AND

PROBABLE CAUSE TOGETHER AT THE

SAME TIME.

>> YOU KNOW, I READ ALL THOSE

OPINIONS, AND I AM VERY

SYMPATHETIC TO YOUR SIDE BUT I

HAVE TO SAY, ANSWER WHAT

JUSTICE LEWIS HAS JUST ASKED,

PERMUTATION, WHICH IS, SOMEONE

STOPS FOR A MOMENT AND THEN

STARTS RUNNING AGAIN, THAT THEN

IT IS NOT CONTINUOUS ACT OF

FLIGHT BUT YET SAME ACT OF

RESISTING THE OFFICER SO THAT

HE CAN'T OR SHE CAN'T

INTERROGATE THE DEFENDANT.

>> I'M NOT SAYING THAT THE

OFFICERS CANNOT INTERROGATE THE

DEFENDANT.

UNDER --

>> HOW CAN THEY IF THE PERSON

CONTINUES TO RUN?

THAT'S THE RESISTING IS THAT

THEY'RE RESISTING THE OFFICER

IN BEING ABLE TO INTERROGATE.

AND WHETHER WE LIKE WARDLOW OR

NOT, IT'S THE LAW IN THIS STATE

AND YOU HAVE NOT, AS I HAVE,

SAID, DONE ANYTHING TO TRY TO

DISTINGUISH WHAT MIGHT HAPPEN

WITH JUVENILES THAN WHAT

HAPPENS WITH ADULTS AS TO

WHETHER THERE ARE OTHER REASONS

FOR UNPROVOKED FLIGHT.

SO WE NOW ARE TALKING ABOUT

THEY HAVE A RIGHT TO TALK TO

HIM BUT, NO, THAT SOMEONE CAN

FRUSTRATE THAT RIGHT BY

CONTINUING TO RUN.

HOW IS THAT LOGICAL THE OTHER

WAY?

THAT IS TO SAY, THAT NO,

BECAUSE THEY KEPT ON RUNNING,

IT'S ALL PART OF THE SAME

FLIGHT?

DID SOMETHING HAPPEN

DIFFERENTLY?

THE OFFICER ORDERED THEM TO

STOP.

>> RIGHT, I UNDERSTAND THAT.

BUT IT'S STILL ONE --, IF THE

OFFICER, IF THE DEFENDANT

STOPS, THE OFFICER EFFECTUATE

AS TERRY STOP AND CONVEYS TO

HIM HE IS DETAINED IN WHATEVER

MANNER, IN WARDLOW THEY

CORNERED HIM WHICH CONVEYS A

INTENT TO DETAIN THEN YOU RUN

AWAY FROM THAT, AND YOU START

RUNNING THERE IS REASONABLE

SUSPICION, THAT'S THE

DIFFERENCE.

SO IT IS NOT A MATTER OF, I

THINK THAT IS THE LEGAL WAY TO

DO IT.

IS, YOU HAVE BEFORE YOU FLEE,

AND THEN, YOU KNOW, ONE, YOU

HAVE TO LOOK AT THAT MOMENT

RIGHT BEFORE THE RESISTANCE

OCCURS.

IT IS NOT THE ORDER IN OF

ITSELF.

IF AN OFFICER SAYS YOU ARE

UNDER ARREST AND YOU PUNCH THE

OFFICER, THE OFFICER DOESN'T

HAVE TO SAY DON'T PUNCH ME.

>> I THOUGHT YOU MADE AN

ARGUMENT IN YOUR BRIEF I GUESS

YOU'RE NOT MAKING FURTHER BUT

WHICH IS, HOW IS THE PERSON WHO

IS FLEEING, SINCE A PERSON HAS

A RIGHT TO FLEE IF IT IS A,

UPPER MIDDLE CLASS, WHITE

NEIGHBORHOOD AND THEY HAVE A

RIGHT WHEN POLICE COME TO RUN

AWAY WHICH IS PROBABLY WHERE

THEY WON'T RUN AWAY, HOW IS THE

DEFENDANT SUPPOSED TO KNOW THAT

IT IS A LAWFUL ORDER?

BUT YOU HAVEN'T, YOU KNOW, YOU

SORT OF THROW THAT OUT BUT

YOU'RE NOT ARGUING IT HERE

TODAY AND I DON'T KNOW IF YOU

ADVANCED THAT BEFORE.

>> WHATEVER I DON'T GET TO I

LIKE TO RELY ON MY BRIEF.

>> IS THAT A VALID ARGUMENT?

NOT ONLY ARE WE CREATING TWO

CLASSES OF ADULTS AND

JUVENILES, THOSE THAT LIVE IN

HIGH-CRIME AREAS.

>> RIGHT.

>> WHO CAN'T LEGITIMATELY RUN

AWAY FROM POLICE AND THOSE IN

NON-HIGH-CRIME AREAS THAT CAN

AND HOW IS THAT PERSON RUNNING

IS SUPPOSED TO KNOW IF HE OR

SHE IS ACTUALLY COMMITTING A

CRIME?

>> I DON'T THINK THERE IS ANY

WAY TO KNOW.

THE STATUTE DOESN'T PUT YOU ON

NOTICE WHAT CONSTITUTES --

>> SHOULD THAT BE AN ARGUMENT

THERE ARE CONSTITUTIONAL

PROBLEMS OF TREATING PEOPLE

UNEQUALLY AND THEREFORE WE

SHOULD INTERPRET THE STATUTE IN

A VERY STRICT WAY? I HAVEN'T

HEARD YOU MAKE THAT ARGUMENT

BUT THAT'S --

>> I THINK YOU CAN DO IT ON

EQUAL PROTECTION BASIS OR ON

DUE PROCESS BASIS.

>> BUT YOU DON'T MAKE THAT

ARGUMENT IN THE TRIAL COURT OR

BEFORE THE SECOND DISTRICT HAVE

YOU, DID YOU?

>> NO. THAT WOULD BE AS APPLIED

ANALYSIS.

BUT IF THIS COURT DOES HOLD IN

LINE WITH C.E.L. THAT WILL

DEFINITELY COME UP IN THE

FUTURE BECAUSE A STATUTE HAS TO

PUT AN INDIVIDUAL ON NOTICE

WHAT CONSTITUTES A CRIME.

THIS IS NOT, IT IS WITHIN 1,000

FEET OF A SCHOOL.

>> CAN WE JUST TODAY, JUST THIS

MORNING, ALL OF SUDDEN CHANGE

ALL THE ISSUES IN THIS CASE --

>> NO, NO, I'M SAYING THE

HOLDING IN C.E.L. OPENS UP

THESE POSSIBILITIES.

IT CREATES A VERY MESSY

SITUATION.

I THINK THE LOGICAL AND LEGAL

WAY TO DO IT IS WHAT THE THIRD

DCA DID.

IN LINE WITH TILLMAN, HOLD THAT

YOU HAVE TO LOOK AT THE POINT

THE RESISTANCE OCCURS WHICH IS

BEFORE YOU FLEE, THE MOMENT YOU

START RUNNING.

AND IF I COULD RESERVE THE REST

OF MY TIME FOR REBUTTAL.

>> THANK YOU.

>> MAY IT PLEASE THE COURT,

DIANA BOCK, ASSISTANT ATTORNEY

GENERAL APPEARING ON BEHALF OF

THE STATE THE RESPONDENT IN

THIS CASE.

I THINK THE KEY ISSUE HERE IS

TIMING AS JUSTICE LEWIS HAS

DISCUSSED IT IS THE TIMING OF

WHEN THE ORDER WAS GIVEN.

TIMING AT WHICH POINT

REASONABLE SUSPICION OCCURRED

AND WHAT HAPPENED AFTER THAT.

IN THIS INSTANCE, THAT POLICE

OFFICER GAVE A LAWFUL COMMAND.

THERE IS NO CONTEST BELOW OR

HERE THAT AT THE TIME HE GAVE

THAT COMMAND HE HAD THE LEGAL

AUTHORITY TO DO SO, THAT HE DID

SO, THAT HE WAS TRYING TO DO AN

INVESTIGATORY STOP.

HE WAS THWARTED FROM DOING

THAT.

THAT THE DEFENDANT HEARD HIM

AND MADE A CHOICE TO CONTINUE

TO RUN.

>> WHAT KIND OF ARGUMENTS CAN A

DEFENDANT MAKE IN RESISTANCE TO

THIS KIND OF THING?

IS THERE ANY, IF A POLICE

OFFICER COMES IN AND SAYS, THIS

IS A HIGH-CRIME NEIGHBORHOOD,

AND THE DEFENDANT SAY NO IT

WASN'T.

>> YES IT CAN, YOUR HONOR.

>> WHAT WOULD HAVE TO DO TO

SHOW THAT?

>> I THINK YOU COULD GIVE IS A

TIS CALL DATA, POLICE DATA,

REPORTING DATA.

THAT WOULD BE A POSSIBILITY.

>> THIS IS ABOUT THE WORST CASE

I HAVE EVER SEEN.

>> IT IS A TROUBLING CASE, YOUR

HONOR.

>> THAT PEOPLE WHO HAVE NO

OTHER CHOICE ABOUT WHERE THEY

LIVE, ESPECIALLY A JUVENILE.

IF THIS IS WHERE HIS PARENTS

LIVE, THIS IS WHERE HE HAS TO

LIVE.

AND HE HAS, CAN'T DO ANYTHING

BUT STOP AND HAVE A THE POLICE

INTERROGATE HIM WHETHER HE IS

DOING ANYTHING OR NOT.

THIS IS, TO ME, THE ULTIMATE IN

A POLICE STATE.

>> WELL, TWO THINGS, YOUR HONOR.

FIRST OF ALL, I WOULD DISAGREE

TO SOME DEGREE IT IS BASED ON

WHERE THEY LIVE ALONE.

IF I HAD BEEN STANDING THERE

AND I HAD RUN IN THAT SAME

AREA, I TOO WOULD HAVE BEEN

SUBJECT TO THAT STOP WHETHER I

LIVED THERE OR NOT.

THE OTHER THING IS HE HAD A

CHOICE TO WALK AWAY.

>> YOU MIGHT NOT BE SUBJECT TO

THE STOP.

FIRST OF ALL, YOU KNOW, WARDLOW

SAYS IT'S, USE OF THE

TERM UNPROVOKED.

>> UNPROVOKED.

>> FLIGHT. WHEREAS I GUESS

SOMEBODY, THEY

COULD GO, THEY COULD ACTUALLY,

OFFICER WAS COMING UP TO THEM

THEY COULD ACTUALLY WALK AWAY

AND GO ABOUT THEIR BUSINESS,

WHICH DEFIES MY UNDERSTANDING

OF HOW SOMEBODY IS GOING TO DO

THAT.

BUT, IN TERMS OF THIS STATUTE,

AND I'D LIKE TO, YOU KNOW, IN

TERMS OF WHAT WE'RE CRYIZING

HERE.

>> THE RESISTANCE.

>> THE, WHY SHOULDN'T WE

STRICTLY CONSTRUE IT TO SAY

THAT, AS THE THIRD DISTRICT HAS

AND THE FIRST DISTRICT, THAT

THE -- CRIMINALIZING.

REASONABLE SUSPICION FOR THE

FLIGHT ITSELF WHICH CREATES THE

REASONABLE SUSPICION TO ALSO

CONSTITUTE RESISTING ARREST

BECAUSE OF WHAT JUSTICE QUINCE

SAYS?

AND IT IS IN THE BRIEF AT LEAST

IN THE THIS COURT THAT AS FAR

AS C.E.L. IS CONCERNED, HE

DOESN'T KNOW THAT THERE, THAT

HE IS, HOW DOES KNOW, THIS IS,

QUOTE, A HIGH-CRIME AREA?

HOW DOES KNOW WHETHER OR NOT,

QUOTE, THE RIGHT TO RUN AWAY

WHEN POLICE ARE THERE?

HE MIGHT HAVE THE RIGHT

WHEN HE GOES TWO MILES TO THE

NORTH OR SOUTH, BUT HE DOESN'T

HAVE THE RIGHT THERE.

SO GIVEN THAT, GIVEN THAT WE,

THIS IS, WE'RE TALKING ABOUT

CRIMINALIZING AN ACT OF

RUNNING, WHICH AT ITS OUTSET

WAS NOT, WAS NOT IMPROPER, WHY

SHOULDN'T WE STRICTLY CONSTRUE

IT AS THE THIRD DISTRIBUTE HAS

INTERPRETED THE STATUTE?

>> FIRST OF ALL, IT'S NOT

CRIMINALIZING THE FLIGHT.

I THINK THAT IS A MISNOMER.

WHAT IT IS CRIMINALIZING THE

INTERVENING CAUSE OF THE ORDER

TO STOP AND THE CONTINUATION OF

THAT FLIGHT.

>> BUT YOU UNDERSTAND IN THIS

CASE THERE WERE SEVERAL

INDIVIDUALS WHO WERE ARRESTED

AND, AT THE SAME TIME.

>> WE'RE TALKING ABOUT C.E.L.

NOW?

>> C.E.L..

I'M GETTING SOME PICTURE OF

WHAT JUSTICE LABARGA HAS SAID.

WHICH THERE ARE KIDS HANGING

AROUND SOMEPLACE AND MORE

LIKELY KIDS THAT ARE

AFRICAN-AMERICAN THAN THEY ARE

TO BE WHITE KIDS BECAUSE OF

WHAT JUSTICE STEVENS DISSENT IS

EXPLAINS.

AND SO ALL OF A SUDDEN THE

POLICE COME.

THEY CREATE A SITUATION WHERE

NOW EVERYBODY SAYS, WE DON'T

WANT TO TALK TO THE POLICE.

NO, NO, THAT, NOTHING GOOD WILL

COME OUT OF THAT FOR US.

SO WE'RE LEAVING.

BUT THEY'RE KIDS.

SO THEY RUN.

THEY DON'T WALK FAST.

AND WE'RE REALLY SAYING, THAT,

THAT CAN GIVE RISE TO A

RESISTING ARREST WITHOUT

VIOLENCE?

>> NO, WE'RE NOT.

WE'RE SAYING THAT WHEN THOUGH

TAKE FLIGHT IN HIGH-CRIME AREA

THEY HAVE NOW TRIGGERED

WARDLOW.

ONCE YOU'VE TRIGGERED WARDLOW,

THERE IS A REASONABLE SPECIAL

SHUN ON BEHALF OF A POLICE

OFFICER, WHO BRINGS WITH HIM

MUCH KNOWLEDGE, NOT SIMPLY THE

FACT THAT THIS CHILD FLED BUT A

LOT OF KNOWLEDGE ABOUT THIS

AREA IN PARTICULAR AT LEAST IN

OUR CASE.

ONCE HE HAS THE REASONABLE

SUSPICION, ONCE HE HAS THE

LEGAL AUTHORITY ESTABLISHED

UNDER WARDLOW, HE MAKES A

LEGALLY AUTHORIZED COMMAND.

THE COMMAND IS DISOBEYED.

IT IS THE DISOBEYANCE OF THE

COMMAND THAT IS THE RESISTANCE

THAT IS CHARGED.

>> HOW DOES THE STATE RULE THAT

IT IS A HIGH-CRIME AREA?

IS IT JUST THE POLICE OFFICER

TESTIFYING BASED ON MY 24 YEARS

OF LAW ENFORCEMENT EXPERIENCE

THIS IS A HIGH CRIME AREA?

THAT'S IT?

>> THAT IS CERTAINLY A MAJOR

FACTOR.

I THINK THAT IS WHAT HAPPENED

BELOW HERE.

TWO OFFICERS WITH SPECIFIC

KNOWLEDGE.

>> I'M SURE THE PROSECUTORS

DON'T BRING IN PEOPLE WITH

STATISTICS AS TO HOW MANY

CRIMES ARE CONDUCTED IN A

PARTICULAR NEIGHBORHOOD TO

PROVE IT IS A HIGH-CRIME AREA.

>> I DON'T BELIEVE THEY DID

HERE. BUT WHAT THEY DID SAY HERE,

BOTH OFFICERS TESTIFIED, ONE

FIVE YEARS EXPERIENCE IN THAT

AREA.

THE OTHER SIX.

MULTIPLE ARRESTS,

MULTIPLE COMPLAINTS.

IN FACT THE, MOST RECENT

COMPLAINT THE DAY BEFORE.

>> SAY I LIVE IN A GOOD

NEIGHBORHOOD, NOT A HIGH-CRIME

AREA.

I HAPPEN TO LIVE IN ONE OF

THOSE AT HOME.

AND, THERE'S A STRING OF

BURGLARIES.

KIDS DECIDE THEY'RE GOING TO

BURGLARIZE EVERY HOME IN THAT

NEIGHBORHOOD.

SUDDENLY THERE IS 40

BURGLARIES.

DOES THAT MAKE MY NEIGHBORHOOD

A HIGH-CRIME AREA?

DOES THAT MEAN MY KIDS CAN'T

RUN?

>> I BELIEVE SOMEONE COULD MAKE

THAT ARGUEMENT.

WOULD THEY MAKE THAT ARGUEMENT?

I DON'T KNOW.

TELL YOU WHAT.

IT IS NOT AT THIS LEVEL WE MAKE

THE DECISION.

THE FILTER OCCURS AT TRIAL

LEVEL WHERE EVIDENCE CAN BE

BROUGHT IN AND RESOURCES ARE

AVAILABLE TO CHALLENGE THAT

ISSUE.

THAT'S NOT WHAT WE'RE DOING ON

APPEAL.

>> AS I WAS PREPARING FOR THIS

CASE, I HAPPENED TO TURN THE

TELEVISION ON "NBC NEWS." AND

THERE IS A CASE SOMEWHERE UP

NORTH, WHERE A BROTHER, THE

BROTHER IS ABOUT 26 YEARS OLD

OR SOMETHING LIKE THAT AND HIS

YOUNGER BROTHER, ABOUT 14 OR 15

AND THE YOUNGER BROTHER HAS

LIKE A LEARNING DISABILITY.

AND, THE BIG BROTHER WAS

DRIVING IS PULLED OVER BY THE

POLICE BECAUSE THE TAG HAD A

PROBLEM WITH IT.

DIDN'T HAVE A STICKER,

SOMETHING WRONG WITH THE TAG.

AND ASKED POLICE OFFICERS

PULLED BEHIND THEM AND THE BIG

BROTHER, SLOWED THE CAR DOWN

ENOUGH, THE YOUNGER BROTHER,

WHO HAS A LEARNING DISABILITY

GOT SCARED, PETRIFIED,

OPEN THE DOOR AND RAN.

AND THE UNDER WARDLOW THE

POLICE OFFICER TESTIFIED, WHO I

AM SURE IS GOING TO TESTIFY IN

THIS HIGH-CRIME NEIGHBORHOOD

THAT GAVE HIM THE RIGHT TO

CHASE HIM.

HE CHASED HIM.

HE TASED HIM AND KILLED HIM.

NOW, WHAT IS INTERESTING ABOUT

THAT IS, HAD HE PERHAPS DRIVEN

THE CAR, THE BIG BROTHER DRIVEN

THAT CAR FIVE MORE BLOCKS DOWN

THE ROAD, THAT KID GOTTEN OUT

OF THE CAR, RUN HOME AND GONE

TO MAMA. I'M SCARED.

POLICE CAUGHT MY BROTHER AND

NOTHING WOULD HAVE HAPPENED.

SEE, THAT IS THE PROBLEM WITH

IT.

PERHAPS TWO OR THREE BLOCKS CAN

MAKE A DIFFERENCE WHETHER

SOMEONE HAS TO STOP OR SOMEONE

DOESN'T HAVE TO STOP.

>> I THINK WHAT WE MIGHT BE

MISSING HERE AND I DON'T MEAN

TO DISCREDIT THIS ARGUMENT IN

THE LEAST, IT IS A VERY STRONG

CONCERN, BUT WHAT WE'RE TRYING

TO DO NOW IS SAY THAT THE

POLICE OFFICER IS NOT ABLE TO

RELY ON HIS OWN KNOWLEDGE.

THAT POLICE OFFICER IS IN THE

FIELD.

THAT POLICE OFFICER SEES WHAT

IS OCCURRING.

>> STILL THE CONCERN IS HE

DOESN'T HAVE ANY KNOWLEDGE

ABOUT THIS PERSON THAT IS NOW A

CRIMINAL.

>> NOT THE PERSON, YOUR HONOR,

BUT THE CIRCUMSTANCES HE IS

PRESENTED WITH THIS PERSON.

>> WHAT WERE THE CIRCUMSTANCES?

WHAT WAS THE TESTIMONY IN THIS

CASE ABOUT EXACTLY WHAT THEY

WERE DOING?

THIS IS APARTMENT COMPLEX.

>> THIS IS AN APARTMENT

COMPLEX, CORRECT.

>> WAS IT A POOR NEIGHBORHOOD?

>> YES, I BELIEVE IT WAS.

>> ARE WE NOW SAYING POOR

NEIGHBORHOODS ARE THEREFORE

HIGH-CRIME NEIGHBORHOODS?

>> I MOST CERTAINLY AM NOT.

>> WAS IT A DRUG HOUSE HE WAS

IN?

>> NO, IT WAS NOT.

>> APARTMENT BUILDING WHERE

PEOPLE LIVE.

>> APARTMENT BUILDING WHERE

PEOPLE LIVE.

>> 9:00 AT NIGHT.

NOT IN THE MIDDLE OF 3:00 IN

THE MORNING.

>> NO, IT WAS NOT.

IT WAS 9:00.

>> AND WE APPARENTLY,

MR.^C.E.L. LIVED VERY CLOSE TO

HERE, ABOUT A MILE FROM THERE,

WITH HIS MOTHER ACCORDING TO

JUDGE ALL THE TERN BERG'S

OCCURRENCE.

WHAT IS IT THAT BROUGHT THE

POLICE TO THE APARTMENT

COMPLEX?

>> THEY WERE ON PATROL.

>> ROUTINE PATROL.

>> ROUTINE PATROL.

BECAUSE THIS IS HIGH-CRIME

AREA.

>> THIS IS DIFFERENT FROM

WARDLOW, I THINK WE MORPHED

FROM WARDLOW AND ACCEPTED IT,

WARDLOW THERE WERE COMPLAINTS

THEY WERE INVESTIGATING,

SPECIFIC COMPLAINTS ABOUT DRUGS

AND THEN WHEN THEY APPROACHED

THEY SAW THE DEFENDANT RUNNING

WITH A SOMETHING UNDER HIS ARM.

AND AGAIN --

>> A OPAQUE BAG.

>> OPAQUE BAG, THAT MIGHT NOT

HAVE ALSO CREATED REASONABLE

SUSPICION.

HERE WE'RE TALKING ABOUT

OFFICERS CAN GO INTO ANY PLACE

IN A POOR NEIGHBORHOOD WHERE

THERE HAS BEEN CRIME, AND, WHEN

YOUNG PEOPLE SEE THESE POLICE,

AGAIN, AND THEY RUN, EVEN

THOUGH THERE WAS NO REASON TO

DETAIN THEM, THEY ARE RESISTING

ARREST WHEN THE POLICE NOW SAY

STOP?

AND SO, IS THAT WHAT WE'RE --

>> A, YOU'RE NOT RESISTING

ARREST.

THAT'S NOT WHAT YOU'RE CHARGED

WITH.

IT IS OBSTRUCTING OFFICER FROM

MAKING INVESTIGATORY STOP.

AND DDP TALKED ABOUT RESISTING

ARREST WHICH WAS A LITTLE BIT

DIFFERENT.

BUT IT'S NOT WHAT WE'RE SAYING.

BECAUSE YOU'RE NOT CONSIDERING

THE FACT OF WARDLOW KICKING IN

THE REASONABLE SUSPICION.

AND THEN, A BREAK, AN

INTERVENING CAUSE, IF YOU WILL,

BY THE COMMAND WHICH WAS

LAWFUL.

AND THEN A CHOICE WAS MADE TO

CONTINUE TO RUN.

WHAT WE'RE, WHAT I HEAR THE

COURT'S CONCERN IS, IS HOW DO

WE STOP THE CHILD FROM RUNNING.

HOW DO WE STOP THAT FROM

TRIGGERING WARDLOWE?

WE CAN'T. IT DOES.

>> UNDER WARDLOWE, THEY USE

THE TERM FLIGHT.

UNPROVOKED FLIGHT.

>> UNPROVOKED, HEADLONG FLIGHT.

>> SO IF THESE SAME DEFENDANTS

HAD BEEN WALKING FAST AS

OPPOSED TO ACTUALLY RUNNING,

CLE -- C.E.L. WAS ACTUALLY

WALKING VERY FAST OUT OF THIS

NEIGHBORHOOD, IS THAT FLIGHT

ALSO?

>> I CAN'T ANSWER THAT.

AND THAT WOULD BE ANSWERED

THROUGH THE FILTER OF THE TRIAL

COURT.

THAT'S WHY THIS KIND AFTER

RECORD YOU CAN'T MAKE THAT

CALL.

>> IT SEEMS TO ME THAT MOVEMENT

AWAY, WHETHER IT IS A RUN, OR

WALK, IS STILL FLIGHT.

>> IT IS NOT.

>> AWAY FROM THE DEFENDANT,

FROM THE POLICE.

>> IT IS NOT.

WARDLOW IS SPECIFIC.

WARDLOW SAYS, UNPROVOKED

HEADLONG FLIGHT.

IT DOESN'T SAY POWER WALKING.

IT DOESN'T SAY JOGGING.

IT SAYS FLIGHT.

>> YOU'RE INTERPRETING FLIGHT

AS RUNNING?

>> YES I AM.

I BELIEVE THAT IS WHAT THE

UNITED STATES SUPREME COURT

DID.

THEY INTERPRETED IT AS HEADLONG

FLIGHT, RUNNING.

IN WARDLOW, AND I DISAGREE A

LITTLE BIT WITH YOUR

RECOLLECTION OF THE FACTS WITH

WARDLOW ONLY TO THE POINT THERE

WAS A CARAVAN OF POLICE CARS,

FOUR, I BELIEVE, STARTED INTO

AN AREA WHERE THERE HAD BEEN

REPORTS OF DRUG ACTIVITIES.

THEY WERE LOOKING TO SEE WHAT

WAS GOING ON THERE THEY KNEW

THERE WOULD BE LOOKOUTS.

THEY KNEW THERE WOULD BE

RUNNERS.

THEY FEARED THERE WOULD BE

WEAPONS.

THE FOURTH VEHICLE --

>> ISN'T THAT WHAT YOU JUST

SAID DIFFERENT FROM THIS KIND

OF CASE?

>> ABSOLUTELY NOT.

IN THIS CASE YOU HAVE AN

APARTMENT COMPLEX THAT IS NOT

ONLY IN A HIGH-CRIME AREA AS

TESTIFIED TO AT TRIAL BUT HAD

REPORTS OF CRIMINAL ACTIVITY

THE DAY BEFORE AND THAT'S WHY

THE PATROLS WERE STEPPED UP.

SO THERE IS NO DIFFERENCE

THERE.

THE ONLY DIFFERENCE THEY WERE

TARGETING A SPECIFIC AREA

DRIVING INTO IT VERSUS ROUTINE

PATROL BECAUSE OF THE REPORTS

OF CRIME.

THE ONLY DIFFERENCE IS THEY

WERE GOING IN A CARAVAN, THIS

WAS A TWO-MAN UNIT.

WHAT YOU HAD WITH THE FOURTH

CAR IN THAT CARAVAN, UNDER

WARDLOW BREAK OFF WHEN THEY SAW

THIS INDIVIDUAL WITH AN OPAQUE

BAG UNDER HIS ARM, LOOK AT THEM

AND RUN.

THEY THEN CORNERED HIM WITH

THEIR VEHICLE,GOT OUT,

AND APPROACHED HIM.

THAT'S THE FACTS OF WARDLOW.

THOSE PARALLEL TO SOME DEGREE

THE FACTS OF OUR CASE BELOW.

HERE YOU HAD TWO OFFICERS,

EMBLAZENED ACROSS THEIR CHEST

IS SHERIFFS OFFICE.

THEY'RE IN HIGH-CRIME AREA

DOING THEIR JOB.

THEY GET THERE THEY GET OUT OF

THE VEHICLE.

THEY'RE WALKING THROUGH THE

AREA.

THEY SEE C.E.L..

THEY SAY, WE WANT TO TALK TO

THESE GUYS.

THEY START TOWARD THEM.

THEY RUN.

THAT'S WHEN THE ORDER IS GIVEN.

WARDLOW HAS BEEN TRIGGERED.

THE ORDER IS GIVEN.

THEY CONTINUE TO RUN.

YOU NOW HAVE, EXCUSE ME, THE

VIOLATION HE IS CHARGED WITH,

OBSTRUCTING AN OFFICER.

YOU CAN'T GET AROUND THAT.

I THINK THAT IS THE STRONGEST

POINT I CAN MAKE.

>> WELL, I THINK THE STRONGEST

POINT YOU PROBABLY MAKE IS THAT

YOU HEAR A LOT OF CASES, AND

YOU SEE A LOT OF THINGS HAPPEN

DURING A LEGAL CAREER, AND YOU

SEE SOME THAT ARE THE MOST

TROUBLING THAT YOU WOULD NEVER

BELIEVE WHEN YOU STARTED THIS

PATH THAT YOU WOULD EVER SEE.

>> THAT IS TRUE.

>> MAYBE THIS IS ONE CASE THAT

OUGHT TO BE ADDRESSED THROUGH

CONSTITUTIONAL ARGUMENTS AND

ATTACKS PROBABLY AT THE TRIAL

LEVEL.

BUT, AGAIN --

>> FILTER THAT NEEDS TO BE --

>> AGAIN YOU SEE, WHEN THIS

COURT PASSES ON SOMETHING LIKE

THAT IT BECOMES THE LAW OF THE

LAND FOR FLORIDA.

>> ABSOLUTELY.

>> YOU SEE WHERE THIS JOURNEY

TAKES US TO A PLACE WE NEVER

BELIEVED WE WOULD EVER BE.

>> I UNDERSTAND THAT, YOUR

HONOR.

AND I'M NOT DISREGARDING THAT

ARGUMENT AT ALL.

>> WE UNDERSTAND.

THESE ARE THE KINDS OF CASES

THAT BAD FACTS, BAD LAW,

MISDIRECT A SYSTEM OF JUSTICE.

>> AND I THINK THAT,

THERE IS A FILTER FOR THAT.

AND I DON'T WANT TO HAVE THAT

LOST IN THE SHUFFLE HERE.

WHAT WE'RE DOING HERE IS

UPHOLDING WARDLOW AND UPHOLDING

THE STATE STATUTE AS IT HAS

BEEN APPLIED.

>> I THINK THE ARGUMENT IS,

THIS IS WHERE THERE IS PERHAPS

ROOM FOR INTERPRETATION.

THE ARGUMENT IS THAT, WARDLOW

DID NOT ENVISION CRIMINALIZING

THE ACT OF FLIGHT.

AND THEREFORE, AS JUSTICE

CANADY AND IN HIS MAJORITY

OPINION SAYS WE'RE DEALING WITH

INTERPRETATION OF A STATE

STATUTE.

AND, ARE YOU SAYING THAT THE

THIRD DISTRICT, THE FIRST

DISTRICT, THE FOURTH DISTRICT,

ALL INTERPRETED THE STATUTE IN

AN IMPERMISSIBLE WAY THAT THIS

COURT COULD NOT ALSO, STRICTLY

CONSTRUING THE STATUTE,

INTERPRET IT IN THAT SAME WAY?

>> YES, I AM.

WHAT I AM SAYING IS THAT THE

POINT IN TIME THAT THEY FOUND

RESISTANCE UNDER TILLMAN IS

INCORRECT.

BECAUSE THERE HAD BEEN NO ORDER

GIVEN.

THE RESISTANCE DID NOT OCCUR

UNTIL THERE WAS DISOBEDIENCE TO

THE ORDER.

SO YES, YOUR HONOR, I AM.

UNDER OUR CIRCUMSTANCES HERE IT

WOULD BE A MISAPPLICATION TO

FIND THAT THE RESISTANCE

OCCURRED AT THE MOMENT HE BEGAN

TO RUN. IT DIDN'T.

AND IT WAS NOT CRIMINALIZED.

>> WELL IT IS RESISTANCE THOUGH

THAT OCCURRED AT MOMENT,

RESISTANCE THAT IS WHAT WARDLOW

SAYS CREATES REASONABLE

SUSPICION.

>> IT IS FLIGHT.

>> CALL INNOCENT PEOPLE RUNNING

THEY CALL THEM FUGITIVES.

THAT IS WHAT THE MAJORITY

OPINION IN WARDLOW SAYS.

THAT THEY'RE FUGITIVES.

>> THAT IS CORRECT.

BUT THEY'RE NOT CRIMINALIZING.

>> IN A HIGH-CRIME AREA AS A

FUGITIVE IS THE WAY SUPREME

COURT HAS CHARACTERIZED IT.

>> FOR THE PURPOSES OF

REASONABLE SUSPICION.

BUT NOT RESISTANCE.

WHAT IT IS, IT'S A FACTOR.

IT IS THEIR REACTION.

IN FACT THEY TALK ABOUT HUMAN

NATURE.

THEY TALK ABOUT REACTION OF A

HUMAN BEING IN A SITUATION.

AND LAW ENFORCEMENT OFFICER CAN

CONSIDER THAT.

>> IF THE OFFICER, FOR WHATEVER

REASON, NEVER ACTUALLY SAID

STOP.

>> YEAH.

>> THEN THERE IS NO RESISTANCE.

>> THERE WAS NO RESISTANCE,

YOUR HONOR.

>> AND AGAIN, IF --

>> BUT HE IS CHASING HIM.

>> IF HE IS CHASING HIM BUT

DOESN'T GIVE HIM A COMMAND --

>> AFTER HIM, CAR AFTER HIM OR

WHATEVER IT IS BUT NEVER SAYS

STOP?

>> A DEFENDANT IS NOT CHARGED

WITH BEING A MIND READER, YOUR

HONOR, BUT IS CHARGED WITH

FOLLOWING THE LAW WHEN GIVEN A

LAWFUL ORDER.

>> IF HE IS NOT A MIND READER,

THEN HOW DOES THE DEFENDANT

KNOW HE IS IN A HIGH-CRIME AREA

AND, WHEN HE IS TAKING FLIGHT?

>> THE DEFENDANT DOESN'T HAVE

TO KNOW.

THE LAW ENFORCEMENT OFFICER HAS

TO KNOW.

BECAUSE IT IS HIS LEGAL DUTY

THAT IS TRIGGERED.

WHAT THE DEFENDANT HAS TO KNOW

THAT A LAW ENFORCEMENT OFFICER

GAVE HIM A LEGAL COMMAND.

GAVE HIM A COMMAND.

LATER YOU CAN CHALLENGE THE

LEGALITY OF IT.

>> IF IT WAS WHEREVER JUDGE

ALTERBURN SAYS THE OTHER AREA

IS, NICER AREA, IT WOULDN'T BE

A LAWFUL COMMAND IN UPPER CLASS

AREA?

>> WOULD GO OUT ON MOTION TO

SUPPRESS OR MOTION TO DISMISS.

>> WOULDN'T THAT SIT ON WHETHER

IT WAS HIGH-CRIME AREA?

INSTANCE JUSTICE LABARGA GAVE

OF MULTIPLE BURGLARIES, VERY

NOT NECESSARILY IMPROBABLE

CIRCUMSTANCE WHERE THERE ARE

SOME --

>> I AGREE.

>> VERY NICE HIGH-CRIME AREAS

THAT OCCUR.

UNFORTUNATELY TO THE RESIDENTS

WHO LIVE THERE THE SAME AS

OTHER PLACES.

>> THE SAME RULE WOULD APPLY.

>> SAME CIRCUMSTANCES COULD

APPLY --

>> NO MATTER WHERE.

WHICH IS WHY I MADE THE

DISTINCTION.

THAT IT DOESN'T MATTER WHO

LIVES THERE.

IT MATTERS WHO IS THERE.

AND WHAT THEY'RE DOING AT THAT

POINT IN TIME.

IT'S THE LOCATION THAT IS UNDER

SCRUTINY BY THE POLICE OFFICER.

IT'S THE LOCATION THAT THE

OFFICER CAN RELY UPON AS PART

OF WHAT HE CHOOSES TO DO.

HE'S THERE.

HE'S IN THE MOMENT.

SEES WHAT SEES.

THAT CAN NOW BE REVIEWED AT THE

TRIAL COURT.

THEY WILL FILTER THAT

INFORMATION.

THE RESOURCES ARE THERE TO

QUESTION THAT INFORMATION

THAT'S NOT HERE BEFORE THIS

COURT AND WAS NOT BEFORE THE

SECOND DISTRICT COURT OF

APPEAL.

THAT'S WHAT I'M SAYING.

THAT'S WHY I'M SAYING FLIGHT

ALONE IS NOT CRIMINALIZED HERE.

IT IS AT THE POINT THE LAW

ENFORCEMENT OFFICER GAVE THE

COMMAND.

A CHOICE WAS MADE AT THAT

POINT.

IT WAS THE WRONG CHOICE FOR

THIS MAN.

AND THAT IS AN UNFORTUNATE

THING BUT IT IS THE LAW AND WE

WOULD ASK YOU TO UPHOLD IT.

THANK YOU.

>> MR.^BERNSTEIN.

>> IF THIS COURT DOES UPHOLD

THE DECISION BELOW, THEN, AS

JUDGE ALTENBERG POINTED OUT

BELOW IT WOULD ALLOW OFFICERS

TO ARREST PEOPLE AT WILL BY

THEM YELLING THEM TO STOP.

YOU WOULD FOCUS ON THE ORDER TO

STOP.

>> AGAIN THE RUNNING DOESN'T

AUTHORIZE AN ARREST.

>> WELL THE STATE IS ARGUING

THAT IT DOES.

>> NO I DON'T THINK SO.

I DON'T HEAR THAT AT ALL.

I HEAR THE STATE SAYING IS

THAT, WARDLOW BECOMES

OPERATIVE.

I THINK I HEARD YOU SAY THE

SAME THING WHEN THEY START

RUNNING WHICH GIVES YOU

AUTHORIZATION FOR A TERRY STOP.

AND THEN, AN ARREST IS

SOMETHING DIFFERENT THAN THAT.

>> RIGHT, RIGHT.

>> IT ONLY AFTER THAT LAWFUL

ORDER TO STOP, MR.^TERRY, STOP.

THAT MR.^TERRY KEPT ON WALKING

DOWN THE STREET OR RUNNING DOWN

THE STREET IN CLEVELAND, OHIO.

THAT'S WHEN IT BECOMES A

CRIMINAL VIOLATION.

THAT'S WHAT THE STATE'S

ARGUING.

>> BUT I THINK TO LOOK AT THAT

IS CIRCULAR YOU HAVE THE FLIGHT

PROVIDE THE BASIS FOR BOTH AT

THE SAME TIME.

TWO STEPS AND YOU HAVE

REASONABLE SUSPICION AND

PROBABLE CAUSE AT THE SAME

TIME.

>> SEE, I'M HAVING A HARD TIME

WITH YOUR ARGUMENT IN GETTING

THERE.

I COULD PROBABLY DEAL WITH SOME

CONSTITUTIONAL ISSUES OR

SOMETHING LIKE THAT.

BUT TO DRAW THIS, I THINK MOST

RESPECTFULLY, PRETTY PHONY

DISTINCTION BETWEEN STARTING TO

RUN OR CONTINUING TO STOPPING

FOR A MOMENT AND CONTINUING

FURTHER, I THINK THOSE ARE

ARTIFICIAL DISTINCTIONS AS

WELL.

>> WELL, IT IS NOT STOPPING FOR

A MOMENT.

IT IS ONCE THEY EFFECTUATE A

STOP AND CONVEY A INTENT TO

DETAIN, THEN YOU RUN AGAIN.

THEN AT THE MOMENT THAT THAT

SECOND FLIGHT BEGINS, --

>> THAT WOULD REQUIRE READING

AN AWFUL LOT INTO A STATUTE

WITH REGARD TO THE ISSUE,

WHETHER IT IS A LAWFUL ORDER AT

THE TIME THE ORDER IS ISSUED,

ISN'T IT?

>> I THINK THE ISSUE IS WHETHER

THE ACTION.

YOU HAVE TO LOOK AT THE ACTION.

AND THE ACTION STARTED BEFORE

THERE WAS A LAWFUL ORDER.

>> THAT IS CIRCULAR.

YOU COME RIGHT BACK TO THAT.

>> I THINK THAT IS THE LEGAL

WAY TO DO IT UNDER TILLMAN, I

UNDERSTAND THAT THIS COURT, I

UNDERSTAND THAT -- BUT I THINK

IF YOU DON'T DO THAT AS I SAID

BEFORE YOU WILL ALLOW OFFICERS

TO GO INTO THESE NEIGHBORHOODS

AND BASICALLY ARREST WHOEVER

THEY WANT WHICH IS WHAT

HAPPENED IN THIS CASE.

BECAUSE HE WASN'T DOING

ANYTHING WRONG?

>> HE DID HAVE, IN THE END HE

HAD AN ARREST WARRANT.

>> RIGHT.

WARDLOW PROVIDES, WARDLOW

PROVIDES THE PARADIGM TO DEAL

WITH THAT.

YOU CAN INVESTIGATE FURTHER.

YOU FIND OUT HE HAS A WARRANT

AND CAN ARREST HIM.

BY QUASHING THE DECISION BELOW

YOU WOULDN'T INTERFERE WITH ANY

INVESTIGATORY DUTIES OF POLICE

AND EVENTUALLY STOP HIM AND

DETERMINE TO INVESTIGATE HIM

FURTHER.

WE WOULD ASK THAT YOU QUASH THE

DECISION BELOW AND ADOPT THE

RULE IN DTB.

THANK YOU.

>> THANK YOU VERY MUCH.

THANK BOTH OF YOU FOR YOUR

ARGUMENTS.

THE COURT WILL NOW BE IN RECESS

UNTIL TOMORROW MORNING.

>> PLEASE RISE.

SUPREME COURT IS NOW ADJOURNED.