By Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training.
A question from an officer in Texas. He made eye contact with a man sitting in a car in a high crime area, the man immediately left, then slow rolled into an apartment complex and ran, leaving two cell phones in the car. He was told he may not have enough to get a warrant for the phones.
Is driving away when you see a police car reasonable suspicion?
All right, let’s talk about fleeing from the police and getting a search warrant for their phones that they leave in the car. Hey guys, my name is Anthony Bandiero, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing the roadside chat from the studio. So, looking at my iPad here, this question is from an officer in Texas. Love Texas.
So the officer says, all right, we’re conducting routine patrol in a high crime area where I and other officers have made many arrests, daily calls for service, shootings, etc. It sounds like a lovely place. I hope that you have homes for sale in this location.
Pull into a parking lot and observe and make eye contact with a subject sitting in a vehicle. As soon as I drive past the vehicle in question, the driver turns on the vehicle and exits the parking lot. After I go after him, by the time I exit the same lot the vehicle is significantly far away. So he’s hauling ass, quite frankly. Appears to be trying to distance himself from me. Catch up to the vehicle and make a probable cause stop. Just, okay, we’ll talk about that.
Vehicle slow rolls and pulls into an apartment complex, continues to slow roll, driver and sole occupant evades on foot. Now we’re talking. Leaves behind his two cell phones. By looking up the vehicle on previous contacts, recent traffic stops, I was able to find a subject who in my opinion is 100% my suspect. Suspect is wearing the same clothing from when he evaded and when he was stopped previously. Okay, he doesn’t have a lot of wardrobe here. Multiple Facebook profile accounts wearing his signature clothing attire, do-rag, white T-shirt, same facial hair, etc. So wrote up a case for evading, being told that we may not have enough to get a warrant for the cell phones to find out who they belong to, and for the warrant.
Okay, so let’s establish some ground rules here so we can answer the question.
What are the three standards you need before you start?
The first one is, what is reasonable suspicion? Reasonable suspicion are facts and circumstances that lead a reasonable person to believe that there’s criminal activity afoot. Another way of saying it is that there’s a moderate chance that these people that you’re stopping and detaining, at least trying to, there’s a moderate chance that they are engaged in criminal activity.
The other thing I want to talk to you about is abandonment. Abandonment is when somebody does something, says something, to lead a reasonable person to believe they no longer should expect a privacy interest in that item. Abandoned. We’ll talk about that.
And then we’re going to talk about probable cause, which is a fair probability that evidence of the crime, or evidence to convict that person, will be found in the place searched and so forth.
Does a high crime area plus driving away get you a stop?
So the first thing I want to share with you is, do we have reasonable suspicion when we roll into the high crime area and see this guy behind the wheel, he sees the cop and he lights up the vehicle and starts driving away? And the answer is no. Absolutely not. Absolutely not.
And I’m not saying this officer thought he had it, he was going to, you know, he was getting behind him. But the point is, if we say that those facts alone, I know it’s a high crime area, but a lot of people live in a high crime area, it’s called Houston. If with those facts alone can we just pull people over? No. Because a lot of people see you and just want to kind of leave the area.
I like to say in my classes that there’s a difference between avoidance and evasiveness. People can avoid law enforcement in 2024 and beyond without being stopped. People can be left alone, quite frankly. Nothing personal, but there are times I just want to be left alone too. I love you guys, but maybe I don’t want to be contacted either, I just want to be left alone. And I’m not saying I do stuff like this, but it wouldn’t be reasonable suspicion for the person to see and be like, you know what, I’m going to kind of get out of here, the police are here, I don’t like to be around police and so forth.
When does avoidance turn into evasiveness?
Okay, so right now we don’t have enough. Just driving away is not enough.
The next thing is, when the officer pulled out to the street and this guy hightailed it out of the area, now do we have evasiveness? I believe we do. High crime area plus evasiveness seems to be a moderate chance that this particular person was up to something. The police officer triggered that guilty mind behavior and now they got the hell out of there.
The best case for that is Illinois versus Wardlow, where the Supreme Court made it very clear that going about one’s business is not reasonable suspicion. It’s not suspicious. But escape is something that is the opposite. It’s not going about one’s business, it’s the opposite. It’s trying to escape, like you’re changing your whole plans and you’re getting the heck out of an area because the police officers are present.
So that’s what we kind of got here. I think that when the officer articulated high crime area, lit up the car immediately when he saw the police officer, then once he got into a straight narrow street he just hit it, that is evasiveness.
Now the next thing the officer said was, I was going to make a probable cause stop. Negative, because I don’t hear anything in here about a motor vehicle violation. What we have is still reasonable suspicion. Again, the officer is saying probable cause, he probably meant reasonable suspicion. I get that. But probable cause means that we can arrest or cite the person. What are we going to arrest them or cite him for, unless they were speeding, unless they didn’t use their signal? But we have no evidence there.
Does running from a car abandon everything inside it?
The next thing is that once they stopped, they slow rolled, they fled on foot. Now let’s talk about abandonment. Is there a good argument that when these people did everything they just did, and then they knew the cops are right behind them, and they just took off running from that car, that they have abandoned their vehicle?
There are a lot of courts out there that would say yes. Absolutely, there are a lot of courts that say yes. But it all depends. I need some more facts. So for example, did they pull into a place, did they take a parking spot that was assigned to somebody else? That’s indicating they shouldn’t expect privacy anymore, they’re taking people’s spaces, they’re running. Did they leave the keys? I’m not saying we’re done. Did they leave the keys in the car? Did they leave the doors open? Those are things that could indicate an abandonment, an intent to say, I don’t expect privacy, I just want to get the heck out of here, I don’t care what I’m leaving behind.
So I’m not saying that a person running from a car in and of itself is abandoning the car and everything in it, but I’m certainly saying it’s a big clue. It’s a big indicator that they are. And then we’re on our way.
So everything from the evading, from the running, again I want some other factors about the car and so forth. So I guess what I’m saying is that if I had a few more facts about why they should not expect privacy in their cell phones, I would just say you can download them under abandonment. And there are definitely plenty of cases from Texas and beyond that have upheld downloading cell phones that were abandoned. Often those are cases where the cell phone was found at a crime scene.
There was a case out of Harris County where, I don’t know the name of the case off the top of my head, but the case was where a person was in a shootout with some people and left a cell phone on top of a car, fled, and Harris County downloaded it without a warrant. They upheld that under abandonment.
Should we download the phone here without a warrant? It’s a little iffy. Again, if we have those other facts like door left open in the car, keys are in the car, all that kind of good stuff, then I’m way more comfortable with it.
What do you actually tell the judge you are looking for?
Finally, probable cause. The probable cause is thin if you’re looking, I mean, what are you looking for? What are you going to tell the judge? What are you going to get out of this car?
Now, the one thing is that the cop can get more evidence that this is our person. Remember, we want to prove all cases, the evading case, we want to prove it to what level of proof? I’m listening. Right, you want to prove it beyond a reasonable doubt. If you download this phone and sure enough it comes back to our suspect, will that help prove that the person in that car was this driver beyond a reasonable doubt?
Could there be other things in there to maybe show motive for fleeing? I don’t know. I think then you would probably need something more than that. But at least you can really prove that the person in the car, and the people in the car quite frankly, was this.
And wasn’t there another guy in the car too? So what about that person? Are they obstructing justice and so forth? Would you want to charge them for any crime? Do you need to know who they are? You probably don’t know who they are just based on the facts here. You know who the driver is. But again, I think there was another person in the car. No, no, no, back up, he said the driver and sole occupant. So just one person, and there’s two cell phones. So that part kind of confused me.
But the point is, will this help you prove beyond a reasonable doubt that this is the person who fled? Absolutely. In fact, I got to tell you, if I was your judge, that alone, just proving identity beyond a reasonable doubt, which is definitely a proper motive for investigations, would get you a search warrant in my book. That alone, just looking for identifying information.
The short version
- Driving away when you make eye contact with a police car is not reasonable suspicion. Absolutely not.
- There’s a difference between avoidance and evasiveness. People can avoid law enforcement without being stopped.
- Once he hit the straight narrow street and took off, high crime area plus evasiveness gets you to a moderate chance he was up to something.
- Illinois versus Wardlow is the best case for that. Going about one’s business is not reasonable suspicion, but escape is the opposite.
- This was never probable cause. There’s no motor vehicle violation in these facts.
- Running from a car is not by itself abandonment of everything in it, but it’s a big clue.
- Keys left in it, doors left open, parked in somebody else’s assigned space. Those are the facts that get you to abandonment.
- With those extra facts, I would download the phones under abandonment. Without them, it’s a little iffy.
- If I was your judge, proving identity beyond a reasonable doubt would get you the warrant on its own.
So that’s what I got for you. I hope this has helped. It’s a good discussion. Keep them coming.
I also, pull up our website, go to Blue to Gold and check us out here, look at all the classes that we have around the United States. We have a class in almost every jurisdiction, check them out. We also have all our classes online. We have phenomenal instructors. Just go to our about page, you’re going to see the best instructors absolutely in the nation. Nobody beats our instructors. They’re real cops. We do have a few prosecutors that were in the military and so forth, so we’ll give them a little love even though they didn’t wear the badge, but they definitely served honorably. And we have great instructors, check us out. And also visit us for our free webinars that happen almost every single week.
Until next time, my friends, stay safe.
Related from Blue to Gold
- Reasonable Suspicion Vs Probable Cause
- Searching a Parked and Unoccupied Car in New Jersey with PC
- Can You Ping Someone’s Phone?
This article is an edited transcript of Roadside Chat EP#757. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
