Maryland’s top court will weigh whether a Black man’s speedy departure upon seeing Baltimore police in a high-crime area gives officers reasonable suspicion of criminal activity to stop him or if they must view his hasty exit as a validly fearful – and suspicion-free – reaction amid local and national instances of police brutality against Black men.
The Court of Appeals will also consider if the Maryland Constitution provides greater protection than the U.S. Constitution’s Fourth Amendment with regard to police searches and seizures of people who arouse suspicion by running upon seeing the officers.
The high court agreed Friday to hear Tyrie Washington’s argument that his gun-possession conviction must be overturned because the only reason officers suspected him of a crime was that he ran after seeing their police car – a reasonable response for a Black man in Baltimore, he said. An officer who frisked Washington after he was caught found a handgun in his waistband.
The Court of Special Appeals upheld the police action and Washington’s conviction. The intermediate court cited a 2000 U.S. Supreme Court decision that unprovoked flight from police in a high-crime neighborhood gives officers reasonable suspicion of crime and permits them to detain the person and conduct a pat down if they suspect the person is armed.
In his successful bid for high court review, Washington stated through counsel that police brutality against Blacks has become more pronounced in the past 22 years and the mere presence of officers has become provocative for Black men since the justices’ ruling in Illinois v. Wardlow.
Attorney Claire R. Caplan cited the 2015 death of Freddie Gray while in Baltimore police custody; a 2016 U.S. Justice Department report that the Baltimore Police Department used enforcement tactics that had an “unjustified” impact on Blacks; and the BPD’s disgraced and disbanded Gun Trace Task Force’s planting of evidence on primarily Black men.
Caplan also mentioned the murder of George Floyd, an unarmed Black man, by former Minneapolis police officer Derek Chauvin in May 2020.
“This case presents an opportunity for this court to consider the factual and practical aspects of daily life today and how reasonable and prudent people act around the police in the post-Freddie Gray, post-George Floyd era,” Caplan wrote in Washington’s petition for Court of Appeals review.
“Today, it is not necessarily a commonsense conclusion that flight from the police is suggestive of involvement in criminal activity,” added Caplan, an assistant Maryland public defender. “Today, there is greater awareness of discriminatory policing and police violence than there was in 2000, when the Supreme Court decided Wardlow. It is now beyond debate that there is widespread racial discrimination in policing in this country.”
Caplan also urged the high court not to be constrained by the Supreme Court’s interpretation of the Fourth Amendment in Wardlow. Rather, the Court of Appeals should hold that the search and seizure provision of Article 26 of the Maryland Constitution’s Declaration of Rights provides broader protection, Caplan wrote.
“Whether or not this court holds that the detectives’ conduct in this case violates the Fourth Amendment, this court should deem it unlawful, in violation of Article 26, for Baltimore Police Department officers to barrel through high-crime communities on proactive patrol and seize anyone who happens to run,” Caplan wrote. “If the court determines that the Fourth Amendment does not protect against such an intrusion, this court should hold that Article 26 does.”
In response, Assistant Maryland Attorney General Andrew J. DiMiceli stated that the Court of Appeals ruled as recently as 2017 in Sizer v. State that the Fourth Amendment and Article 26 are co-extensive and that the Supreme Court’s Wardlow decision applies to police pursuits in Maryland’s high-crime neighborhoods.
“Although one can think of a multitude of innocent (and even justifiable) reasons why an individual might flee from the police, those reasons do not negate the equally reasonable inference in cases such as this that the individual’s flight from the police without provocation was an act of evasion prompted by the person’s desire to avoid responsibility for criminal wrongdoing,” DiMiceli wrote in the state’s unsuccessful request that the Court of Appeals deny Washington’s review petition.
“Washington’s innocent-reasons-to-flee argument is no more salient today than it was in 2000 when Wardlow was decided,” DiMiceli added. “It is still reasonable to infer that unprovoked, headlong flight from the police in a high-crime area may be indicative of criminal wrongdoing.”
In a brief supporting Washington, civil rights groups urged the Court of Appeals to define what is meant by a “high crime” neighborhood and “unprovoked” flight because too often police use these phrases to describe predominantly Black and Latino neighborhoods and residents, resulting in racial profiling.
“This court has applied those factors … but has not clarified their precise meaning and limitations,” wrote Michael R. Abrams, of the Baltimore-based Public Justice Center. “Until the court does so, these factors will serve as proxies for race, stacking the Fourth Amendment deck against Black and Latine Marylanders.”
The Public Justice Center was joined in the brief by the American Civil Liberties Union of Maryland and the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.
According to court papers, Washington and another person were standing at the 4300 block of Cordelia Avenue in northwest Baltimore at about noon on July 9, 2020, when they saw a police car and ran. A detective caught Washington after he fell trying to scale a fence.
After a judge denied Washington’s motion to suppress the gun that detectives found, he pleaded guilty in Baltimore City Circuit Court to carrying a loaded handgun while retaining the right to appeal the suppression ruling. He was sentenced to 10 years in prison, with all but five years suspended plus two years’ probation.
The Court of Special Appeals upheld the conviction in an unreported opinion last March, prompting Washington to seek review by the high court.
The Court of Appeals is scheduled to hear arguments in the case in November and render its decision by Aug. 31, 2023. The case is docketed at the high court as Tyrie Washington v. State of Maryland, No. 15, September Term 2022.