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Chisholm v. Commonwealth — Court of Appeals opinion, Record 1830-24-1

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importantly, Officers McLaughlin and Smith both admitted that Chisholm never attempted to flee before or during detention. Under those circumstances, Chisholm was neither physically capable of fleeing nor behaving in a manner reasonably suggestive of imminent flight or evasive behavior. Indeed, “[w]alking away from the police hardly amounts to the headlong flight . . . and of course would not give rise to reasonable suspicion by itself, even in a high-crime area[.]” United States v. Valentine, 232 F.3d 350, 357 (3d Cir. 2000). Thus, “[w]e decline to equate [Chisholm’s] few backward steps upon seeing several uniformed officers rush toward him with headlong flight.”15 United States v. Lowe, 791 F.3d 424, 434 (3d Cir. 2015). Rather, “a few startled steps back in the face of onrushing, armed police officers is entirely consistent with a surprised reaction and even acquiescence.”16 Id. Indeed, Chisholm did not even have the opportunity to turn “around in an attempt to walk, much less run.” Id. Therefore, “these few steps backward hardly could transform his limited movement in response to the onrushing officers into flight” or some other form of evasion. Id. As a result, the Commonwealth’s characterization of Chisholm’s backward movement as evasive or pre-flight behavior is not supported by the record and cannot sustain a 15 See United States v. Johnson, 620 F.3d 685, 691-92 (6th Cir. 2010) (holding that a suspect who “looks like he might run” but did not actually flee had not engaged in flight, and cautioning that courts may not treat speculative impressions of possible flight as evasive conduct); see also Moreno v. Baca, 431 F.3d 633, 643 (9th Cir. 2005) (rejecting the characterization of a suspect’s act of walking away from police as the type of “headlong flight” and recognizing that such conduct may reflect disengagement rather than evasion). 16 See Lowe, 791 F.3d at 434 (rejecting the government’s characterization of the defendant’s conduct as flight where the defendant took a few steps backward while facing approaching officers, concluding that such movement was consistent with a surprised and non- evasive reaction and declining to equate it with headlong flight sufficient to support reasonable suspicion). See also State v. Thornton, 213 N.E.3d 808, 817-18 (Ohio Ct. App. 2023) (holding that “the action of simply backing away, slowly, over a short distance, from two police officers exiting a police cruiser, in a high crime neighborhood, . . . is not sufficient to give rise to a reasonable, articulable suspicion that criminal activity is afoot”). - 22 -
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