In People v. Flores,[1] a defendant initially tried to avoid being seen by police officers, subsequently failed to acknowledge the officers’ approach, and sought to avoid interacting with them. The Supreme Court of California held that the defendant’s behavior, along with his presence in a high crime area at night, were insufficient to provide reasonable suspicion that he was engaged in criminal activity.
Background
In May 2019, around 10:00 p.m., Los Angeles Police Department Officer Daniel Guy and his partner, Michael Marino, were on patrol in an area known for narcotics and gang activity. Officer Guy had arrested someone for drug-related crimes in the vicinity the night before. As the officers drove by a cul-de-sac, they saw Marlon Flores standing alone in the street beside a Nissan parked at a red curb. Flores looked at the officers, walked around the back of the car, then ducked behind it. The officers pulled up and parked behind the Nissan.
Officer Marino’s body camera recorded the interaction between the officers and Flores. From the opinion’s description of the footage: “The officers parked the patrol car but stayed inside. At 0:15 seconds, Flores’s head comes into view from behind the Nissan. He is in darkness. Flores stands and seems to be making a stretching motion with one arm. At 0:37 seconds, he disappears from sight. A few seconds later, he raises his head, then drops back out of view. At 0:50 seconds, the officers step out of the car and approach him. A flashlight illuminates the way. At 0:55 seconds, Flores appears on the camera’s recording. He is bent over and facing away from the officers with both hands near his right shoe. When Marino trains his flashlight on Flores, Flores does not look around. He remains bent over and continues moving his hands near his feet. The officers make no inquiry, but at 1:03, one of them tells Flores to stand up. Flores remains bent over. When Marino walks up behind Flores, Guy comes around the Nissan and approaches from the other side. At 1:12, Marino again directs Flores to stand. At 1:14, the officer says, ‘Hey, hurry up,’ and Flores begins to straighten. At 1:16, an officer tells Flores, ‘Your hands behind your head.’ Flores complies and is directly placed in handcuffs.”
Officer Guy testified that he detained Flores because he believed Flores acted “suspicious[ly]” by “attempting to conceal himself from the police” and then “pretend[ing] to tie his shoe.” Guy suspected Flores was “loitering for the use or sales of narcotics,” based on the area and Flores’s behavior upon seeing thepolice. During a pat-down search, the Nissan’s “blinkers activated” as if the officer had “hit the key fob.” Officer Guy pointed his flashlight into the car and saw what looked like a drug pipe. In response to the officer’s inquiries, Flores said that the Nissan was his and his wallet, and identification, were in the driver’s side door pocket. Guy retrieved the wallet, looked inside, and found a folded dollar bill containing suspected methamphetamine. Officers also recovered a revolver from a backpack.
In denying Flores’s motion to suppress the evidence seized, the trial court concluded that his acts of “ducking,” “remaining hunched over,” and “toying with his feet,” even after the officers approached and told him to stand, was odd behavior and suspicious. After the denial of his motion to suppress, Flores entered a plea of no contest to one count of carrying a loaded firearm.
The Second District Court of Appeal affirmed the judgment in a divided opinion, holding that the totality of the circumstances provided reasonable suspicion for the detention. The Supreme Court of California granted review to determine whether Flores’s detention was justified.
Discussion
The California Supreme Court observed: “‘In reviewing a trial court’s ruling on a motion to suppress evidence, …[w]e exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment.’” (People v. Silveria and Travis (2020) 10 Cal.5th 195, 232.) In doing so we do not consider each fact in isolation. Instead, “we must consider ‘the totality of the circumstances—the whole picture.’” (United States v. Sokolow (1989) 490 U.S. 1, 8, quoting United States v. Cortez (1981) 449 U.S. 411, 417.) The Supreme Court explained that “the Fourth Amendment permits an officer to initiate a brief investigative … stop when [the officer] has ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’[Citations.]” (Kansas v. Glover (2020) 589 U.S. 376, 380–381.) In Terry v. Ohio (1968) 392 U.S. 1,[2] the United States Supreme Court first recognized the validity of a brief investigative detention, short of arrest, based on reasonable suspicion of criminal activity. (Id. at pp. 21–22, 27, 30.)
The California Supreme Court explained that it is settled that a person may decline to engage in a consensual encounter with police. “The person approached … need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way.” (Florida v. Royer (1983) 460 U.S. 491, 497–498 (plur. opn. of White, J.); accord, Illinois v. Wardlow (2000) 528 U.S. 119, 125.) Such “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” (Florida v. Bostick (1991) 501 U.S. 429, 437; accord, Wardlow, at p. 125.) However, “the manner in which a person avoids police contact” may be “considered by police officers in the field or by courts assessing reasonable cause for” a detention. (People v. Souza (1994) 9 Cal.4th 224, 234.) The relevant inquiry is the “‘degree of suspicion that attaches to particular types of noncriminal acts.’” (Sokolow, supra, 490 U.S. at p. 10, quoting Illinois v. Gates (1983) 462 U.S. 213, 243–244, fn. 13.) The United States Supreme Court has “recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” (Wardlow, supra, 528 U.S. at p. 124.) The Court here added that repeated or inordinate attempts to avoid an officer may be particularly noteworthy.
The California Supreme Court also observed that “presence in an area of expected criminal activity” is also a relevant consideration (Wardlow, supra, 528 U.S. at p. 124; accord, Souza, supra, 9 Cal.4th at pp. 240–241), but added “a great many law-abiding Californians live, work, or otherwise find themselves in areas where criminal activity is prevalent. Their mere presence there cannot be said to transform them into suspects.” While presence in a high-crime area is “a factor that can lend meaning to the person’s behavior.” (People v. Limon (6th Dist. 1993) 17 Cal.App.4th 524, 532), “standing alone, [it] is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” (Wardlow, at p. 124.)
The Court recounted the facts here: “Flores looked in the direction of the officers then walked behind a car and ducked out of sight. As the officers parked, Flores raised his head, stood and stretched, then again disappeared from sight. A few seconds later he raised his head a second time, and then dropped back out of view. When the officers approachedon foot, he remained bent over ‘toying with his feet.’ He did not make eye contact or otherwise acknowledge their attempts to engage him.” The Court suggested that Flores’s apparent pretext of tying his shoe, combined with his repeatedly ducking down behind the car, could reasonably be construed as odd and noteworthy behavior, particularly when done in reaction to the sight of a uniformed police officer.
The Court explained, however, that “[a] mere deviation from perceived social convention does not automatically signal criminal behavior. The particular conduct relied upon must, when considered in the totality of circumstances, support a reasonable suspicion that the person to be detained is, or is about to be, engaged in activity ‘relating to crime’” (citing In re Tony C. (1978) 21 Cal.3d 888, 893.). The Court noted that Officer Guy did not see Flores engage in any conduct suggesting he was there to buy or sell drugs or was otherwise involved in illegal conduct. He did not see Flores interact with anyone, or retrieve or hide anything. The officer did not see anyone in the immediate vicinity. No one had called for help or to report a crime in progress. The hour was not particularly late. Officer Guy did not see Flores standing in that location for more than a few moments before the officers pulled up in their patrol car. When Guy approached on foot, he saw Flores moving his hands near his feet, but the officer did not say Flores appeared to hide or discard anything. Rather, he thought that Flores was “pretend[ing] to tie his shoe.” Guy testified that the Nissan was parked at a red curb but did not explain how Flores’s presence next to an illegally parked car justified a detention under the totality of the circumstances. The Court expressed that, if present, such factors would be relevant in weighing all the circumstances bearing on whether a detention was justified.
The California Supreme Court found that the facts here contrasted with other cases in which the Court had upheld investigative detentions. Here, unlike Wardlow and Souza, there was no headlong flight. The Court stated that Flores’s disinclination to engage with the officers did not carry the same salience as headlong flight in the totality of the circumstances analysis. The other factors discussed by Souza—early morning hour and multiple persons all engaged in evasive conduct (the latter a circumstance also present in Terry)—were likewise absent. And, unlike People v. Brown (2015) 61 Cal.4th 968, there was no contemporary citizen request for assistance due to criminal activity in the location where Flores was seen.
The Supreme Court stated that an articulable and reasonable suspicion that a person is engaging in criminal activity is required to escalate a consensual encounter to a coercive detention. The fact that Flores was present in a known narcotics area, where the officer had arrested someone for drug-related crimes the night before, did not tip the scales in favor of detention. The Court concluded that Flores’ behavior, along with Flores’s presence in a high crime area at night, did not provide a particularized and objective basis for suspecting that Flores was doing something illegal. The Court held that the record, considered in its totality, failed to support a reasonable suspicion that Flores was loitering for the purpose of committing a narcotics offense (as the officer suspected) or was otherwise engaged in “‘criminal activity.’” (Glover, supra, 589 U.S. at p. 380.)
The Court maintained that its conclusion did not leave officers without the means to follow up on behavior they view as calling for additional investigation. The Court acknowledged that Flores’s presence in a high crime areaand repeated attempts to avoid being seen by, or engaging with, the police were noteworthy. Under the Fourth Amendment, the officers could have continued to watch Flores as he stood on the street, as did the detective in Terry. They were entitled to approach Flores and engage him in consensual conversation. They could have asked if he needed assistance, or had himself noted anything out of the ordinary in the vicinity. If they made additional observations while doing so, those observations, the Court stated, “may have changed the calculus.” Yet Flores’s mere refusal to cooperate did not furnish the minimal level of objective justification needed for a detention or seizure. Accordingly, the California Supreme Court reversed the judgment of the Court of Appeal and remanded the matter with directions to permit Flores to withdraw his no contest plea and grant his suppression motion.
HOW THIS AFFECTS YOUR AGENCY
Agencies may note that with regards to nervous, evasive behavior, the California Supreme Court observed the existence of issues of race or ethnicity and policing brought up by the defendant and amici in the case. Indeed, in authorizing “stop and frisk” detentions, the United States Supreme Court in Terry recognized that “community resentment aroused by particular practices is clearly relevant” to assessing the nature of intrusions upon “reasonable expectations of personal security” of those whom police encounter. (Terry, supra, 392 U.S. at p. 17, fn. 14.) The California Supreme Court here emphasized that with respect to the standard’s application in a given case, “the high court has consistently held that an objective evaluation of the totality of the circumstances is the touchstone of Fourth Amendment scrutiny. In making that assessment, it is imperative that the circumstances confronting both the officer and the citizen be judged against an objective standard.”[3]
Notwithstanding its holding, the Court stated that it remained true that nervous, evasive behavior need not be ignored by law enforcement officers as it is a pertinent factor in determining reasonable suspicion based on all the circumstances. Moreover, the possibility of an innocent explanation for evasive behavior, such as a desire to avoid police contact out of fear for one’s safety, still would not render such behavior insignificant. The California Supreme Court stated, “To be clear, officers may observe what people do in public places. They may consider what they see in plain view and determine whether what they observe merits further observation, inquiry, or intervention. They may approach people in public, engage them in consensual conversation, and take note of their appearance and behavior. Nervous behavior and attempts to conceal oneself may provide relevant context. But before officers may detain someone they must be able to articulate a legally cognizable reason to infringe on that person’s liberty.”
Decisions to detain are difficult for law enforcement officers to make, as aptly demonstrated by this case. Officers need to ensure that they are regularly and diligently reviewing caselaw on the issue of reasonable suspicion and detention of potential suspects in order to ensure that they can effectively avoid civil liability exposure for a wrongful detention and protect the integrity of criminal prosecutions.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
[1] 15 Cal. 5th 1032 (2024).
[2] In Terry, a plainclothes detective was on foot patrol in downtown Cleveland, watching particularly for the presence of shoplifters and pickpockets. At 2:30 in the afternoon he noticed two men he had not seen before standing on a corner. The detective did not approach the pair, but simply observed them for 10 to 12 minutes. During that time the detective saw the men stand on the corner. Then each separately walked down the street, paused to look in a particular shop window, walked for a short distance past the shop, then retraced his steps, paused again at the same window, and rejoined his companion back on the corner, where they conferred. Each man separately engaged in that process five or six times, and then the men then left the corner together. The detective decided to investigatefurther because he suspected the two men were “casing a job, a stick-up,” and suspected they might be armed. The men stopped in front of another store nearby and met with a third man. The detective had seen them talk briefly with the third man when the pair was at the original corner from which they had repeatedly conducted their apparent reconnaissance. The detective had no more information beyond what he had observed. He approached the three men, identified himself as an officer, and asked for their names. After they “mumbled something,” the detective grabbed Terry, patted him down for weapons, and ultimately removed a revolver from his interior coat pocket. A second gun was found in his companion’s overcoat. The high court in Terry stated that a stop-and-frisk detention “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.” (Terry, supra, 392 U.S. at p. 17.) The Terry majority nonetheless concluded that the detective had reasonable suspicion to suspect the two men were engaged in criminal activity and to fear for his safety. As a result, the stop and frisk by the detective was permitted, and the weapons recovered were admissible in the underlying criminal proceeding.
[3] See Ashcroft v. al-Kidd (2011) 563 U.S. 731, 736; Michigan v. Chesternut (1988) 486 U.S. 567, 574; Terry, at pp. 21–22.