“Because, Yo, My Brother Just Got Hurt”: Maryland Fails to Account for the Empirical Reality Underlying Unprovoked Flight from Police in Washington v. State

Ashley Metzbower

In Washington v. State, the Supreme Court of Maryland evaluated the probative value of unprovoked flight from law enforcement and, specifically, whether unprovoked flight in a high-crime area is sufficient to establish reasonable suspicion of criminal activity. The court held that in determining whether reasonable suspicion for an investigatory stop exists, a court should consider whether an individual’s unprovoked flight is a circumstance consistent with innocence or, coupled with presence in a high-crime area or other indicia of suspicion, is suggestive of criminal activity. Applying this holding, the court concluded that law enforcement had reasonable suspicion to stop Tyrie Washington because Washington fled without provocation in a high-crime area.

Although the court correctly interpreted United States Supreme Court precedent as requiring an analysis of the totality of the circumstances, this Note argues that the court erred in holding unprovoked flight in a high-crime area alone is sufficient to establish reasonable suspicion of criminal activity. Section IV.A maintains that neither Supreme Court precedent nor the court’s own case law supports sanctioning an investigatory stop without additional articulable facts forming the basis for suspicion. Section IV.B argues that the court discounted the Black community’s legitimate apprehension of law enforcement, particularly in Baltimore City, by failing to properly appraise how the Baltimore Police Department’s (“BPD”) well-publicized and institutionalized corruption frames Black individuals’ perceptions and responses to encounters with BPD officers. Section IV.B further asserts that the court wrongfully ignored empirical data confirming that direct and secondhand exposure to violent interactions with law enforcement engenders negative emotional and psychological outcomes in Black individuals. Section IV.B concludes by positing that this data supplies an entirely reasonable and innocent reason for attempting to evade contact with law enforcement: fear.

With respect to the significance of presence in high-crime areas, Section IV.C. contends that the court improvidently adopted a subjective standard for determining whether an area is high crime based solely on officer testimony, which research shows is often inaccurate and possibly biased. Section IV.C. also argues that the court erred in dispensing with the requirement of a nexus between the individual’s conduct and the criminal activity prevalent in the area. Instead, the court announced a lesser mandate that for an individual’s presence in a high-crime area to be probative of guilt, the observed conduct must not be inconsistent with the crimes prevalent in the area. Section IV.C. concludes by asserting that this diluted framework enhances law enforcements’ ability to invoke the high-crime label as a pretext for conducting racially motivated investigatory stops.