IC § 35-44.1-3-1. Resisting law enforcement.

(a) A person who knowingly or intentionally: . . .

(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop. . .

Notes

– Any movement away from the officer is enough.

– The reason for the stop is generally (but not always) irrelevant.

Case Law

– Evidence was sufficient to support conviction of resisting law enforcement where defendant, who admitted to knowing that the police officer wished to effectuate the traffic stop, continued in defendant’s vehicle for a lengthy period before stopping for the officer. Woodward v. State, 770 N.E.2d 897 (Ind. App. 2002) (decided under former IC 35-44-3-3).

 – An officer saw a parked vehicle with several men standing around it. Δ was a passenger in the vehicle. When the men saw the police, some of them walked away. Several vehicles pulled up to the stopped vehicle and people walked back and forth between the vehicles. The officer did not see anything exchanged and merely observed conversing between the men. The officer pulled up alongside the parked vehicle, and the men standing around the vehicle dispersed. The officer asked the driver and Δ for ID. Δ exited the vehicle and began walking away. The officer ordered Δ to stop. Δ stopped, turned around, and placed both of his hands on the roof of the vehicle. When the officer approached, Δ walked around the vehicle in the opposite direction and then ran. The officer chased Δ and continuously ordered him to stop. The officer tackled Δ and both fell. Δ broke free by pushing the officer away. Δ continued to run and was tazed. A pat down search was performed, which revealed a handgun. Δ was charged with Resist by Force, Resist by Flight, and Handgun No License. After being convicted on all 3 charges, Δ appealed.  “In Terry v. Ohio, the United States Supreme Court held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when, based on a totality of the circumstances, the officer has a reasonable, articulable suspicion that criminal activity is afoot. A Terry stop is a lesser intrusion on the person than an arrest and may include a request to see identification and inquiry necessary to confirm or dispel the officer’s suspicions.”  The officer did not observe any items exchanged during the fifteen to twenty minute time period. The officer only saw the men conversing with the various persons. “We doubt the propriety of the investigatory stop.” “It is well settled that in Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order. . . the resisting law enforcement statute does not condition the offense upon a lawful order. . . even if a police officer does not have reasonable suspicion to stop a defendant, the defendant has no right to flee when the officer orders him to stop.”  The conviction for resist by flight is upheld. Cole v. State, 878 N.E.2d 882 (Ind. App. 2007).

– A citizen is not permitted to flee from an officer’s show of authority, regardless of whether that authority is, in the citizen’s subjective view, unlawful. Lashley v State, 745 N.E.2d 254 (Ind. 2001).

– In Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order. Dandridge v State, 810 N.E.2d 746 (Ind. App. 2004).

– Undercover officers were watching a house where the officers believed that drugs were being sold. Δ and another man walked out of the house and got in a car. Δ drove the vehicle. The undercover officers followed in an unmarked vehicle. One of the headlights in Δ’s vehicle was out. The undercover officers called for a marked vehicle. Δ pulled into a gas station parking lot and parked. An undercover officer approached Δ and showed his badge in order to stop Δ. The passenger, a known drug user, told Δ to go. As Δ began to drive away, the marked vehicle arrived. After the marked vehicle arrived, Δ stopped. Δ was convicted of resist by flight, and appealed, arguing that there was no lawful duty to stop. “Before an individual may actually resist law enforcement by fleeing, the individual must have a duty to stop. This duty to stop arises in two of the three levels of police investigation.  Other than the headlight violation, there was no reasonable suspicion to make a stop. The undercover officer was not authorized to stop Δ for the headlight violation, as he was not in uniform and not in a marked vehicle. Because there was no legal duty to stop, Δ is not guilty of resist by flight. Bovie v. State, 760 N.E.2d 1195 (Ind. App. 2002).

– An officer stopped Δ for failing to signal. The officer approached Δ’s vehicle on foot and Δ drove away. The officer returned to his vehicle and followed Δ with his lights and sirens activated. Δ crashed his vehicle and fled on foot. Δ was eventually apprehended and arrested. At trial, Δ was convicted of resist by flight in a vehicle, as a D felony and resist by flight as an A misdemeanor. Δ was convicted of both charges and the court entered judgment on both charges. Δ appealed, arguing the convictions violated the Federal Constitutions’ ban on Double Jeopardy. “We cannot say that resisting law enforcement by fleeing in a vehicle is a different ‘species’ from resisting law enforcement on foot. Rather, fleeing by means of a vehicle merely serves to enhance the penalty for fleeing. Stated otherwise, whether or foot or in a vehicle, the same ‘species’ of behavior is proscribed: fleeing. Here, Arthur committed one continuous act of fleeing, albeit by two different means . . . Because we find his actions of fleeing by vehicle and then on foot constitute one continuous act of resisting law enforcement, we find that convictions on both counts cannot stand.” Arthur v. State, 824 N.E.2d 383 (Ind. App. 2005).

– A uniformed officer in a marked car responded to a report involving several men and a gun. The officer drove to the scene. Once the men saw the officer, they began running. The officer chased Δ in his marked vehicle. The lights in the vehicle were not turned on. The officer had not identified himself as an officer, and the officer had not told Δ to stop. After the officer caught up to Δ, the officer ordered Δ onto the ground, to which Δ complied. “It is unreasonable to conclude that the mere approach of an uniformed officer constitutes an order to stop whether the officer, in his patrol car, approaches a group of people in the street or, while on foot, approaches a group of people on the sidewalk, in the street, in a store or in a restaurant. To hold otherwise is to hold that anytime a person observes a police officer approaching the person must either stop or remain in place or risk being guilty of resisting law enforcement.” “This is not to say that the approach of a police officer, coupled with other circumstances such as operating the police vehicle’s signal lamps, would not support the conclusion a visual order to stop had been given.”  State v. Czobakowsky, 566 N.E.2d 87 (Ind. App. 1991).

– An officer went to Δ’s house to deliver a “bar letter” notifying Δ that Δ was banned from his son’s school. Δ’s girlfriend arrived at the home and told the officer Δ was not home. Δ opened the screen door and placed the letter inside, and said “You’ve been served.” The officer walked back to his vehicle. Δ came out of the home, blocked the officer’s path, spit at her, stood very close to the officer’s face, and called the office vulgar names.   The officer told Δ to back away and then smacked Δ. The officer retrieved her tazer and called for backup. Δ paced in his yard, flailed his arms, and continued calling the officer vulgar names. The officer told Δ to calm down, but Δ refused. Neighbors came out of their homes. Δ began to walk away. The officer told Δ to stop, and Δ then ran away. The officer then tazered Δ. Δ was charged with and convicted of resist by flight. On appeal, Δ argued that the officer’s “outrageous conduct” excused Δ’s conduct.  The defense of ‘outrageous conduct’ by law enforcement officers has not been recognized in Indiana. Moreover, adopting such an exception to the offense of resisting law enforcement would be inconsistent with Indiana precedent. It is well settled that in Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order. . . The resisting law enforcement statute does not condition the offense upon a lawful order.”  Furthermore, the officer’s conduct was not outrageous. Yowler v. State, 894 N.E.2d 1000 (Ind. App. 2008).

– Officers went to Δ’s house in order to serve an arrest warrant. The officers were in uniform and identifiable as law enforcement officers. The officers made it clear to Δ that they were there to apprehend him. Δ went into a bedroom. Officers followed Δ and ordered him to come back. There was no order to “stop.” Δ barricaded the door and officers entered the bedroom. Officers kicked in the door and saw Δ trying to exit through the window. Once outside the residence, one officer tried to grab onto Δ but Δ went back into the residence through the window he had just exited. Δ slammed the window on an officer’s arm. Δ then left through a different window, and escaped in a stolen SUV. Δ was charged with resist by flight.  “A police officer’s order to stop need not be limited to an audible order to stop. The order to stop may be given through visual indicators. Evidence of a proper visual order to stop is based on the circumstances surrounding the incident and whether a reasonable person would have known that he or she had been ordered to stop.” This case is “distinguishable from Czabakowsky, which involved a random encounter with law enforcement officers.”  Δ was aware that officer’s were there to arrest him. He was told to come out of the bedroom, tried to go out a window, and slammed the window on an officer’s arm.   “These factors would have been more than sufficient to indicate to a reasonable person that Fowler had been ordered to stop.” There was sufficient evidence for the jury to have found that Δ was guilty of resisting by flight. Fowler v. State, 829 N.E.2d 459 (Ind. App. 2008).

– Δ was in possession of a vehicle. An officer came to Δ’s car lot with a prejudgment order of possession, which ordered the officer to repossess the vehicle. Δ told the officer that he was not going to give up possession of the vehicle. Δ got in the vehicle and locked the door. The officer explained that he had been ordered to take possession of the vehicle and that Δ should resort to the court process. Δ then started the engine and drover away. The officer followed with his lights and sirens on. Δ drove down a dirt rode going 70 mph. Δ eventually stopped and was taken into custody. Δ was charged with resist by flight. It was later determined that the prejudgment order of possession was invalid. Because the order was invalid, Δ argued that all evidence against him should be suppressed. Δ failed to file a reply brief. As a result, “a less stringent standard of review applies, and the State need only establish prima facie error, which is error at first sight or on the face of it.” “The common law right of forceful resistance to an unlawful arrest tends to promote violence and increases the chances of someone getting injured or killed. . . The legality of a peaceful arrest should be determined by courts of law and not through a trial by battle in the streets. It is not too much to ask that one believing himself unlawfully arrested should submit to the officer and thereafter seek his legal remedies in court. . . We hold that a private citizen may not use force to resist peaceful arrest by one he knows or has good reason to believe is an authorized peace officer performing his duties, regardless of whether the arrest is illegal in the circumstances of the occasion.”   “The modern rule on resisting arrest . . . should also apply to resisting a peaceful seizure of property by police. ” State v. Moriarity, 832 N.E.2d 555 (Ind. App. 2005).

– Officers in an unmarked car and not wearing uniforms saw Δ walking down the street. The officers stopped and Δ began to run. The officers got out of the car and began to chase Δ. The officers identified themselves as police officers and told Δ to stop. Δ continued to run, and yelled “not today.” Δ dropped a bag, which he then picked up. When Δ was arrested, a search revealed cocaine. After being convicted of resist by flight and possession of cocaine, Δ appealed, arguing that there was no lawful order to stop, and therefore, the cocaine should be suppressed. “In Indiana, an individual may not flee from a police officer who has ordered the person to stop, regardless of the apparent or ultimate lawfulness of the officer’s order . . . The search was performed pursuant to a lawful arrest.” If Δ had not run, there would have been no reason for an arrest, and therefore, no reason for a search. Dandridge v. State, 810 N.E.2d 746 (Ind. App. 2004).

– Officer’s went to Δ’s house to investigate a report of child abuse. Δ met officers at the door of his home, was rude, and told officers that he would “have to respectfully resist.” Δ told officers he was going back inside and the officers told him not to. Δ shut and locked the door. After Δ refused to open the door, officers forced open the door and entered the house. Δ came down the stairs, and said, “No, I’m not going. You have to physically take me out of this house. I’m not leaving.” Δ put his arms to the sides of the doorway to hold himself in place. The officers pushed Δ aside. Δ prevented himself from being handcuffed and dropped to his knees. Wellman was lifted to his feet and walked to the police car. Wellman was charged with resisting law enforcement.  Flight does not involve an inquiry into speed, mode, and manner of retreat. Flight is understood as a knowing attempt to escape law enforcement when the defendant is aware that a law enforcement officer has ordered him to stop or remain in place once there.  Flight is satisfied by walking away and locking the door.  Flight is the evading of the course of justice by voluntarily withdrawing one’s self in order to avoid arrest or detention, or the institution or continuance of criminal proceedings, regardless of whether one leaves the jurisdiction.  The conviction for resisting by flight is affirmed. Wellman v. State, 703 N.E.2d 1061 (Ind. App. 1998).

– Δ was driving behind an unmarked police car. The officer was not in uniform. Δ almost hit the officer’s vehicle twice, squealing the brakes the second time. Δ drove around the officer and went the wrong way down a one way street. Δ then drove over a curb in an attempt to get onto another one way street, also headed in the wrong direction. The officer got out of his car and approached the vehicle with his police badge, radio, and gun in sight. Δ drove away and a high speed chase ensued. The car got to a dead end road and Δ got out of the car and ran. Δ was arrested and charged with resisting by flight. On appeal, Δ argued that he was never told to stop. The officer need not “audibly order[] [the defendant] to stop, he could have done so visually. The circumstances surrounding the incident, including the fact that the officer had approached within three feet of Spears clearly indicate that a reasonable person would have known he had been ordered to stop. The evidence shows that this was [the officer’s intention] and from his actions one could infer nothing else.” The conviction for resist by flight is affirmed. Dissent: “There is no evidence that the police officer ordered [the defendant] to stop either verbally or by any visual gesture. . . Disobeyance of the order is an essential element of the offense.” Spears v. State, 412 N.E.2d 81 (Ind. App. 1980).

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