Opinion
No. 90CRB797.
Decided June 12, 1990.
Thomas Bernabei, Law Director, and Leslie Markijohn, for the state.
Jeffry Haupt, for defendant.
The testimony taken in the hearing on the motion for dismissal and suppression of evidence held on May 21, 1990 may be summarized as follows. Officer Richard Schaefer of the Canton Police Department was advised by other officers prior to entering his duties that evening to "keep an eye on" Roscoe's Cafe, and that other officers "were particularly interested in" various persons, among whom was a person matching the defendant's description on this particular day. Officer Schaefer went on duty with his police dog in his marked police vehicle. Shortly after Officer Schaefer came to the location of Roscoe's Cafe, the defendant, James E. McCullough, and another person matching a description given to Officer Schaefer came around the corner of a building, saw the police vehicle and immediately turned around and started walking down Seneca Avenue. The two young men went behind some parked trucks and the officer could see them behind the trucks occasionally looking out at the officer. Officer Schaefer, while in his vehicle, started across the street toward Seneca Avenue, and the two persons immediately started running down the alley. Officer Schaefer observed both persons throw something away from them and continue running. The officer pursued the defendant and on various occasions ordered him to stop. Finally, the officer released his dog, and, after a continued pursuit, the defendant was pinned against a wall by the dog and arrested. Whatever it was that the two individuals threw away from them was never recovered.
As a result of this conduct, the defendant is charged with obstructing official business and resisting arrest. The matter is before the court upon the defendant's motion to dismiss these charges, or, in the alternative, to suppress evidence obtained improperly. Briefs have been filed by both parties.
It is undisputed that Officer Schaefer observed no crimes committed by the defendant prior to pursuing him. Similarly, it is undisputed that no evidence of drug activity was obtained on this particular occasion. The question before the court is whether the defendant's conduct, after seeing the police officer, and particularly after the police officer ordered him to halt, constitutes either obstructing official business or resisting arrest. Referral to the complaints quickly discloses that the same conduct is used for the basis of both charges.
A subject may not be arrested without a warrant, but upon probable cause to believe that he has committed a crime. An exception to this rule provides that an officer may approach a person for investigation of criminal behavior, even though no probable cause for arrest exists, upon an articulable suspicion of criminal conduct. Under these circumstances, the officer may search the person for weapons. See Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In the case at bar, nothing constituting probable cause was observed by the officer, except that the defendant ran when he saw the officer. The flight itself is the charge today. In Terry the defendant submitted to the officer's search, evidence was obtained and the court held that the evidence taken from Terry could be used in his prosecution. The prosecution has referred the court to United States v. Pope (C.A.6, 1977), 561 F.2d 663. In that case the defendant fled from an officer, and the flight, together with other bits of information, were used for probable cause to stop the defendant. However, in Pope, the matter was again before the court on a question of suppression of the evidence obtained as a result of the Terry stop and search.
In Terry, Justice Harlan, concurring, specifically noted at 392 U.S. at 32-33, 88 S.Ct. at 1885-1886, 20 L.Ed.2d at 912-913:
"[The right of the police officer] * * * must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner's protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.
"Where such a stop is reasonable, however, the right to frisk must be immediate and automatic if the reason for the stop is, as here, an articulable suspicion of a crime of violence. * * *"
In Florida v. Royer (1983), 460 U.S. 491, at 497-498, 103 S.Ct. 1319, at 1324, 75 L.Ed.2d 229, at 235-237, the court stated:
"* * * The person approached, however, need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. * * * He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. * * *"
Assuming, arguendo, that Officer Schaefer had an articulable suspicion under the circumstances, that the defendant was committing a crime, evidence obtained by him might well be admissible under Terry. However, where articulable suspicions, but not probable cause, exist, is the act of fleeing from the officer upon his request for a Terry stop a crime? This court thinks not. Evidence obtained from the defendant under the circumstances in the case at bar would have been admissible under Terry. An independent crime committed while fleeing (such as operating a vehicle without a license) could, of course, be independently prosecuted. But to hold that fleeing from an officer under Terry circumstances constitutes resisting arrest would be to apply a new standard for warrantless arrests: not probable cause, but the Terry standard of articulable suspicion. This court does not believe that the United States Supreme Court intended that result, and finds that the flight of the defendant in this case could not, in and of itself, constitute resisting arrest or obstructing official business.
The portion of the defendant's motion seeking suppression of evidence is overruled. The portion of the defendant's motion seeking to dismiss the complaints is sustained for the above reasons.
The complaints against the defendant for obstructing official business and resisting arrest are therefore dismissed.
Complaints dismissed.