The Counsellor's Corner

In criminal law, the system attempts to balance the safety of society against the rights of the individual, and one of the questions that often comes up is whether or not a police officer has the right to stop and detain someone. If I am driving my car in a perfectly appropriate manner, a police officer would not have cause to stop me. If, alternatively, I were weaving all over the road, the officer then would have cause to detain me.

An unusual twist on this concept took place in late May when the Court of Appeals in handling a matter out of Orange County decided that an individual traveling on a bicycle at 3 o'clock in the morning wielding a large axe is something that can raise the suspicion of a reasonable police officer, and therefore that person can be stopped and detained.

Robert Foranyic is the axe wielder in question and he was stopped, detained, and arrested for public intoxication, and when methamphetamines were found in his possession he was convicted of the drug charge as well.

While Mr. Foranyic contended that there was nothing about his behavior which indicated he was about to engage in criminal activity, the Court decided that "he [Foranyic] is unable to suggest, and we cannot conceive of, much in the way of non-criminal activity which is accomplished with an axe in the dead of night." The Court did acknowledge that there are many non-criminal uses for axes however the court viewed these as generally daylight activities, and the Court noted that "the officer could reasonably eliminate firefighting and lumberjacking from the list of possible pursuits Foranyic might have been engaged in and a consensus seems to have developed that recognizes the inadvisability of wielding an ax in darkness."

This incident occurred in May of 1996. An officer on patrol in the City of Santa Ana saw Mr. Foranyic on his bicycle with his axe and ordered him to stop and put the axe down. The officer then asked Mr. Foranyic if he knew where he was, and Foranyic indicated he was either in Bakersfield or in Long Beach, however he could not narrow it further than that. He was also having difficulty standing.

The Appellate Court had fun with this decision, noting that there weren't too many errands they could think of that would be run at 3 o'clock in the morning with an axe and they then discussed the history of the axe as a weapon. As the Court wrote, "While no one refers to a `gun-murderer' or `knife-murderer' or `crowbar-murderer', the equivalent usage with regard to an axe is well ensconced in American usage. The axe, like the machete and the straight razor, is an implement whose unfortunate utility as a weapon sometimes overshadows its value as a tool."

At no time did Foranyic or his attorney attempt to explain what Foranyic was doing at 3 o'clock in the morning on his bicycle wielding an axe. Mr. Foranyic's attorney indicated she was disappointed in the Appellate Court's decision, however she issued no further comment.

I imagine I'd be disappointed too if the Court ruled against me, however I think it's hard to argue with the Court on this one. We want to balance the individual's right to privacy; the individual's right to be left alone with society's right to be kept safe. I think it is clear that a reasonable policeman seeing someone riding his bicycle at 3 o'clock in the morning wielding an axe has every right to approach that individual and ask him what he's doing. Reasonableness is the key here. As the Court indicated, if this were daytime, or if the individual were carrying something other than an axe, a different decision may have been reached, however in this case, it seems as if the police officer did his job and the Court did its job.

Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Booth & Unger, and a therapist at the Foothill Centre for Personal and Family Development. Mr. Unger writes a bimonthly column on legal and psychological issues.