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Investigative detentions are bulk intrusions on liberty. While stop and frisks are common, they seldom present evidence of criminality. Furthermore, they can reflect racial disparities. Because of the fear associated with stops and frisks, some people end up running when they see police officers.

The Pennsylvania Supreme Court has previously considered this issue. In 1999, the Pennsylvania Supreme Court held in In re D.M. that stopping a juvenile who ran from officers violated both the U.S. and the Pennsylvania Constitutions. Shortly thereafter, the U.S. Supreme Court held in Illinois v. Wardlow that the Fourth Amendment does not bar stopping people in high-crime areas who engage in unprovoked flight from the police. The Pennsylvania Supreme Court then reversed course. It was duty bound to follow Wardlow鈥檚 Fourth Amendment holding, but the Pennsylvania Supreme Court also extended that holding to the Pennsylvania Constitution.

In the case of Commonwealth v. Shivers, the Pennsylvania Supreme Court has an opportunity to say that it was right the first time. In July of 2019, Mr. Shivers ran from the police in an area police described as 鈥渉igh-crime.鈥� The officers chased and tackled him, recovered a gun from his pants pocket, and arrested him for Violation of Uniform Firearms Act offenses and giving false identification. His counsel filed a motion to suppress evidence, which was denied. Mr. Shivers was sentenced to three years of probation. He then appealed to the Superior Court, which ruled that the police had reasonable suspicion to stop Mr. Shivers due to his flight in the high-crime area. Mr. Shivers and his counsel appealed to the Supreme Court and asked for a new trial.

The ACLU, along with the ACLU of Pennsylvania, filed an amicus brief in September 2024 arguing that the Superior Court decision should be reversed and the Supreme Court should hold that flight from the police in a high-crime area, without more, cannot justify an investigative stop.

The brief argues that the Pennsylvania Constitution can and should go further the U.S. Constitution in protecting people during investigative-stops. Textual and structural factors make the Pennsylvania Constitution distinct from the Fourth Amendment and state courts are well-suited to broaden search-and-seizure protections. Moreover, the notion that fleeing the police is more suspicious when it occurs in high-crime areas does not satisfy common sense, much less Pennsylvania constitutional scrutiny. As decisions from other state courts recognize, innocent people may flee from the police due to a fear of being stopped or racially profiled. Those fears are more likely to be present in high-crime areas with histories of fraught encounters between police and residents.