WE ALL LOSE WHEN THE WICKED GET AWAY

These were the circumstances in Chicago on a September day in 1995, when
police arrested Sam Wardlow:

Police Officer Timothy Nolan was patrolling a section of the city known for
heavy traffic in narcotics. His patrol car was one of four police cars that
converged for a full-court press in the 4000 block of West Van Buren. Nolan
was wearing his full police uniform.

Sam Wardlow was standing in front of No. 4035. He looked at Nolan and fled.
Nolan followed in hot pursuit. Wardlow ran at top speed down an alley.
After a brief chase, Nolan and his partner cornered their target on West
Congress Street.

Nine years of experience as an officer had taught Nolan that guns are
commonplace in neighborhoods where illicit drugs are sold. He therefore
performed what is known at law as a "Terry stop-and-frisk." He patted down
the suspect and squeezed a bulky white envelope that Wardlow was carrying.
Nolan was not surprised to find that it contained a fully loaded Colt .38
revolver.

The rest is quickly told. Wardlow had a criminal record. Nolan arrested him
on a charge of unlawful use of a weapon by a felon. Before trial, Wardlow
moved to suppress the evidence. The trial judge denied the motion. He said
that when a person runs away from a police officer, "there's reasons to
think there's a problem. They have a right to make inquiry."

Wardlow was found guilty as charged and sentenced to two years in prison,
but the appellate court reversed. The Illinois Supreme Court affirmed that
opinion: "The weapon that was the basis for defendant's conviction should
have been suppressed as the product of the unconstitutional seizure of his
person."

Illinois has filed a petition for review by the Supreme Court. I think it
likely that the Supremes will take the case, for lower state and federal
courts are sharply divided on the key question: Are police in a high-crime
area justified in stopping and searching a person who breaks and runs at
the mere sight of an officer?

The high court took a stab at answering a closely related question almost
31 years ago in an Ohio case involving one John W. Terry. He and another
man, Richard Chilton, were arrested by Cleveland detective Martin McFadden
in 1963. At the time, McFadden had 39 years of experience as a police
officer. When he saw Terry and Chilton walking nervously back and forth in
front of a store on Huron Road, he suspected that an armed robbery was
about to occur. The officer identified himself and asked for the suspects'
names. When they mumbled, McFadden spun Terry around and frisked him. Both
Terry and Chilton were carrying revolvers.

Following their convictions for carrying concealed weapons, Terry appealed,
but the Supreme Court affirmed his conviction. The stop- and-frisk was "the
tempered act of a policemen who in the course of an investigation had to
make a quick decision as to how to protect himself and others from possible
danger, and took limited steps to do so."

Chief Justice Earl Warren, speaking for an 8-1 court, refused to lay down
bright lines -- either that all such searches are presumptively reasonable
or presumptively unreasonable. Every case would depend upon the facts. This
is the language that has divided lower courts for 30 years:

"We merely hold today that where a police officer observes unusual conduct
which leads him reasonably to conclude in light of his experience that
criminal activity may be afoot and that the persons with whom he is dealing
may be armed and presently dangerous, where in the course of investigating
this behavior he identifies himself as a policeman and makes reasonable
inquiries, and where nothing in the initial stages of the encounter serves
to dispel his reasonable fear for his own and others' safety, he is
entitled ... to conduct a carefully limited search of the outer clothing
of such persons in an attempt to discover weapons which might be used to
assault him."

Since the Terry opinion in 1968, dozens of cases have arisen involving
unprovoked flight. Is such flight "unusual conduct"? Eleven state supreme
courts have ruled that flights at the sight of an officer give rise to a
reasonable suspicion that justifies a stop- and-frisk. At least 10 state
courts have ruled the other way -- that flight creates a mere inference of
guilt, and a mere inference of guilt is not enough.

With its opinion in the Sam Wardlow case, Illinois has put the state's
police officers in a lose-lose position. If police stop a fleeing suspect
and find weapons or contraband, the evidence will be suppressed. If they do
not stop and frisk, armed criminals will saunter away. In this instance, I
would come down on the side of the cops. Reasonable suspicion is good
enough for me.