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Cop-Blocked: Unprovoked Flight Doesn't Create Reasonable Suspicion

By Robyn Hagan Cain | Last updated on

Kenny Rogers explained in "The Gambler" that "You got to know when to hold 'em, know when to fold 'em, know when to walk away and know when to run." It's good advice.

Knowing when to walk away or run can be difficult. For example, is it ever okay to run from a cop?

While fleeing from a cop may not be a good life choice, the Third Circuit Court of Appeals ruled this week that it doesn't automatically establish reasonable suspicion for arrest.

While conducting surveillance in an unrelated case, Newark Police Department Detectives Henry Suarez and Saul DeLaCruz saw Alexander Navedo emerge from an apartment building and stand on the porch. Soon, a person later identified as co-defendant Pozo approached Navedo from the street. Pozo was carrying a bookbag. Navedo and Pozo chatted, and Pozo showed Navedo a gun he was carrying in the bag.

Navedo never touched or otherwise "possessed" the gun.

The cops did what cops in these cases tend to do. They approached Navedo and Pozo and announced themselves, prompting a chase. For Detective DeLaCruz and Navedo, that chase ended with DeLaCruz tackling Navedo outside his apartment and landing inside the apartment. After DeLaCruz restrained Navedo, he observed a shotgun, two long rifles on the bed, one on the floor, and a stock of ammunition on the floor.

The cops later explained that they thought Navedo was involved in some kind of illegal gun activity based on the backpack show-and-tell. Navedo was charged with, and convicted of, illegally possessing the weapons that were recovered from his apartment.

This week, the Third Circuit held that a district court should have granted Navedo's motion to suppress the guns and ammo because the cops lacked reasonable suspicion to stop Navedo.

Reasonable suspicion of criminal activity can be formed by observing exclusively legal activity, but there still must be "a particularized and objective basis for suspecting the person stopped of criminal activity."

Here, the police didn't have any information from any source that would have supported a reasonable suspicion that Navedo was involved in firearms trafficking, that he intended to purchase a gun from Pozo, or that he was connected to any prior criminal activity.

But Navedo fled. That's suspicious, right?

According to the court, unprovoked flight can lead to a warrantless arrest, but the Supreme Court has made it clear that cops are not justified in stopping everyone who flees. Underlying circumstances control.

In this case, the cops weren't staking out "the proverbial high crime area" and police had no reason to suspect that Navedo was demonstrating anything other than curiosity at the sight of a gun in Pozo's backpack.

Running from the cops is a gamble, but an unprovoked flight doesn't necessarily establish cause for a search or arrest.

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