Md. high court considers if flight justifies police search

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ANNAPOLIS — Maryland’s top court grappled Wednesday with just how crime-ridden a neighborhood must be to justify police officers giving chase and frisking for weapons an individual who runs away upon seeing them.

The defense lawyer and prosecutor arguing before the Court of Appeals on the first public day of its 2017-2018 term agreed that police in high crime, high-violence areas of major cities would have reasonable suspicion enabling them to pursue a fleeing individual without violating their Fourth Amendment right against unreasonable seizure and search.

However, the high-court dispute focused not on the violent streets of Baltimore but on Columbia, where Howard County police chased down Jamal Sizer after he ran upon seeing them, was caught and was found carrying a handgun.

Howard County Circuit Judge Lenore R. Gelfman later said the weapon could not be used as evidence in Sizer’s pending trial on illegal gun possession because the officers’ pursuit in the relatively low-crime area was unconstitutional. But the intermediate Court of Special Appeals overturned Gelfman’s ruling, saying innocent people do not run from the police.

Sizer’s high-court appeal calls on the judges to apply to Columbia the U.S. Supreme Court’s 2000 decision in Illinois v. Wardlow that police were justified in stopping and frisking an individual who ran from them in a high-crime area on Chicago’s south side. The justices noted the person’s “unprovoked flight” from the officers gave them reasonable suspicion he was involved in the city’s illegal activities.

Sizer’s attorney, Helki Philipsen, told the Court of Appeals the Howard County officers’ justification for the chase was they were in a high- or higher-crime area “of Columbia,” a planned community not known for the heavy narcotics trafficking and gunplay the Supreme Court said could constitutionally rouse police suspicion.

But Assistant Maryland Attorney General Carrie J. Williams countered police were justified in chasing Sizer due to reports they had from local business owners of recent robberies and minor crimes in that Columbia neighborhood.

Judge Sally D. Adkins, in considering the Fourth Amendment conflict, wondered aloud just “how do you balance the rights” when people are entitled to “be where they want to be” and police have a duty to prevent crime.

In addressing that balance, Philipsen urged the Court of Appeals to beware of “buzzwords,” like high-crime area, “usurping the judicial function” of applying the law to the facts and to be wary of confusing “high crime” with “higher crime.”

For example, “I can say the state of Maryland is a ‘high-crime area’ because it has more crime than Vermont” but that would not justify police pursuit of a fleeing Marylander, said Philipsen, an assistant Maryland Public Defender. Likewise, even a high-crime area of Columbia is not south Chicago, she added.

Williams countered that neighborhood crime need not reach the violent level of a major city to give police sufficient suspicion to give chase when a person flees upon seeing them. Recent reports of an uptick in robberies could suffice, Williams said, citing the Columbia shopkeepers.

“People are free to walk away” from the police without arousing suspicion, she added. “That’s not headlong flight.”

Howard County police officers were on bike patrol near the Owen Brown Village Center in November 2015 after local business owners voiced concern about recent crime.

Sizer was among five-to-seven people standing near a minivan in the parking lot when one of them threw a beer bottle at the ground, according to police testimony.

The officers approached the group, saying, “Police. Stop. Don’t run.”

Sizer ran and two officers gave chase on their bikes.

As the officers caught up with Sizer, he raised his hands and acknowledged having a gun. The officers then wrestled him to the ground, found the gun and arrested him, according to the Court of Special Appeals’ opinion.

Sizer was facing a charge of unlawful possession of a firearm when Gelfman ruled in May 2016 that the gun could not be introduced as evidence due to the unconstitutional search and seizure. The Court of Special Appeals overturned that ruling in December, prompting Sizer’s appeal.

The case is Jamal Sizer v. State of Maryland, No. 1 September Term 2017.