D is walking down the street at 4 p.m. in the afternoon. There is a WalMart in the area and an officer sees the D "trying to conceal a shiny fishing reel". (the officer does not know of any theft from the Walmart at the time of this incident).

He approaches the D, who immediately begins to run away.

The officer eventually catches up with the D (a few blocks later) and charges the D with Evading.

I'm looking at PC 38.04 (evading arrest/detention) and it doesn't seem to fit - the officer was not attempting to arrest/detain the D when he approached the D (as required by statute).

What can D be charged with?

Maybe Interference with Public Duties (PC 38.15)? You'd just have to prove the officer was performing a duty imposed by law, which still sounds a little shaky based on your facts...

I'm curious--was the fishing reel stolen from WalMart? I don't think the officer can charge the man with evading detention because, as you noted in your post,he hadn't detained him yet.

Janette A

Yes, the reel was stolen - but the officer didn't know it at the time. He just thought the guy looked suspicious because he was trying to conceal the reel from his view.

I kind of see this as a gap in the Penal Code - a suspect can run away from an officer as long as the officer didn't have an initial intent to detain / arrest the suspect?

I've got to be missing something. Fleeing or attempting to elude is a lesser included offense (which solves this problem) only if the suspect is evading in a vehicle.....not on foot.

If it is a crime to do this in a vehicle...why not on foot?

If the officer was going to stop and talk to the guy, isn't that a detention? Remember, in Terry, the guy was just walking up and down in front of a store when the officer approached, detained, and found the gun Terry was going to use to rob the place.

Your officer sees someone concealing an unlikely item outside a store--reasonable suspicion? Once the guy rabbits, don't you have reasonable suspicion? If he keeps running, don't you have evading? Did your officer yell "stop, police!"?

I second JohnR. The act of concealing an item, whether in front of a store or not, certainly gives rise for an officer to stop and investigate, based upon his reasonable suspicion that a crime is or has been committed. The fact that it is in front of or near a store just strengthens that suspicion.

Remember, a detention is far short of an arrest, and all that is needed is reasonable suspicion.

Why not charge the theft and call it a day?

I dunno, until they make theft of fishin' equipment a state jail felony like they did banjo theft, the penalty is just too darn low. He's really just lucky he didn't steal it in the night time from a fisherman's car.

By his actions, this ne'er-do-well did more than boost a reel from Wal-Mart. He conscientiously chose to exhibit a bias that we, in our evolving notions of decency, can no longer accept against the noble craft of noodling.

Book 'em Dan-O. Fishing discrimination One.

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Originally posted by JB:
Why not charge the theft and call it a day?

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Well, what if they don't know where the reel came from, or can't prove BRD that he stole it? If Wal Mart can't allege that he stole the reel from them (serial number, video evidence), evading seems to be the way to go.

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Originally posted by JohnR:
I dunno, until they make theft of fishin' equipment a state jail felony like they did banjo theft, the penalty is just too darn low. He's really just lucky he didn't steal it in the night time from a fisherman's car.

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Really, I have a hard time thinking of a worse property crime (excluding burg offenses) than stealing a man's fishing or hunting gear. I'm sure the same thought might apply if you are prone to the disease of golfing.

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Did your officer yell "stop, police!"?

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I think this is key. It's not an offense to run away from an approaching officer. But once he tells the fleeing suspect to stop (and he has RS to detain him because of the fleeing, see Illinois v. Wardlow), that's a completed evasion.
If the officer doesn't tell him to stop, he doesn't "know" (per the statute) that the officer is trying to detain him.

which side of the street was he walking on?