Question: Do You Have To Stop When Ordered To Do So By A Police Officer?
Answer: Only If Officer Has “Reasonable Suspicion Or Probable Cause” criminal activity may be afoot.
In 2012, Officer responded to a “disturbance” at a residence. When he arrived, he saw about 8 people standing on the front porch and in the front yard “screaming and yelling.” He saw several other people, one of whom was the defendant, walking along a side yard toward the back. Officer told the group to return to the front yard with the purpose of watching everyone until back-up arrived. Everyone but the defendant complied. Back-up then arrived. An officer, who was in full police uniform, headed toward the back, identified himself as a police officer, and told the defendant to stop. The defendant continued walking along the curtilage of the residence toward an alley. Officer followed him and, “screaming extremely loud,” repeated his order to stop. Defendant looked back at Officer, but continued walking. Officer then radioed for help, and another officer intercepted the defendant at the next street over about 45 seconds later. Defendant was charged with Resisting Law Enforcement by fleeing after being ordered to stop by a law enforcement officer. At the bench trial, Officer testified that, upon responding to a report of a disturbance at a residence, he was corralling people in the front yard for everyone’s safety when the Defendant disregarded the officer’s order to stop by walking away. The Officer testified that the Defendant only walked, that he had not seen the defendant or anyone else commit a crime prior to ordering the Defendant to stop, and that Defendant was not under arrest when ordered to stop. Defendant testified that he lived at the residence where the incident occurred, that a disturbance had indeed occurred that night but had broken up by the time the police arrived, and that he was in the process of leaving before Officer arrived. The trial court found the defendant guilty as charged.
On appeal, the defendant relies upon cases applying the Fourth Amendment to hold that an individual has a duty to stop only if the encounter with police is an arrest or detention based upon probable cause or an investigatory stop based upon a reasonable and articulable suspicion that criminal activity may be afoot. The 4th Amendment provides that the right of the people to be secure in their persons against unreasonable search and seizure shall not be violated. If a citizen’s freedom to walk away is deemed a criminal offense merely because it follows an officer’s command to halt—even in the absence of probable cause or reasonable suspicion—then the citizen’s freedom is restrained contrary to the protections of the Fourth Amendment. A person approached by police “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….” A person’s well-established freedom to walk away is thus violated when that person is subjected to a statute that makes it a criminal offense to decline a police order to stop. To hold that a citizen may be criminally prosecuted for fleeing after being ordered to stop by a law enforcement officer lacking reasonable suspicion or probable cause to command such an involuntary detention would undermine longstanding search and seizure precedent that establishes the principle that an individual has a right to ignore police and go about his business.
For these reasons, in order to interpret the statute as constitutional, we hold that the statutory element “after the officer has … ordered the person to stop” must be understood to require that such order to stop rest on probable cause or reasonable suspicion, that is, specific, articulable facts that would lead the officer to reasonably suspect that criminal activity is afoot. Absent proof that an officer’s order to stop meets such requirements, the evidence will be insufficient to establish the offense of Resisting Law Enforcement by fleeing. To avoid conflict with the Fourth Amendment, Indiana Code section 35–44.1–3–1(a)(3), the statute defining the offense of Resisting Law Enforcement by fleeing after being ordered to stop must be construed to require that a law enforcement officer’s order to stop be based on reasonable suspicion or probable cause. Under the facts and circumstances of this case, a reasonable trier of fact could not have found that the officer’s order to stop was based on such probable cause or reasonable suspicion. The evidence was thus insufficient to convict the defendant of the crime of Resisting Law Enforcement by fleeing a police order to stop. We reverse the judgment of the trial court. 10 N.E.3d 1249