by Sam Rutherford

“The body of America’s Fourth Amendment jurisprudence reflects the effort to strike a balance between the state’s obligation to responsibly and legitimately meet the critical needs of public safety with the nation’s founding and enduring commitment to protect the individual liberty ensured to all its people.”

These were the concluding words in a recent unanimous opinion from the Supreme Court of California in which it held that an individual’s presence at night in a high crime area coupled with his apparent desire to avoid contact with law enforcement did not provide police with the requisite “reasonable suspicion of criminal activity” necessary to detain him for suspicion of illegal drug activities. Because police struck the wrong balance between their perceived need to detain the individual and his right to be left alone, the Court reversed the individual’s conviction and suppressed all evidence obtained as a result of his unlawful detention.

Background

In May 2019, around 10:00 p.m., Los Angeles Police Officer Daniel Guy and his partner, Michael Marino, were on patrol in the area of Mariposa Avenue in Los Angeles County, California. The officers considered the location to be a high-crime area known for drug trafficking and as a gang hang out. As they drove by a cul-de-sac, the officers observed Marlon Flores standing alone in the street near a Nissan parked at the curb. Flores saw the officers, immediately walked around the Nissan, and ducked behind it.

The officers pulled into the cul-de-sac and parked behind the Nissan. Marino’s body-worn camera captured what happened next. Just before the officers exited their patrol vehicle, they noticed Flores briefly stand up and then duck out of sight again. The officers then exited their vehicle and walked around the Nissan, finding Flores crouched and apparently tying his shoe. One officer shined his flashlight on Flores and ordered him to his feet. Flores did not immediately comply or turn to face the officers. Marino approached Flores from behind while Guy circled around the Nissan and approached him from the front. Marino again directed Flores to stand, and just two seconds later, Guy placed him in handcuffs. Only 61 seconds elapsed from the time the officers parked their vehicle to handcuffing Flores.

During a pat-down search, one of the officers activated a key fob in Flores’ pocket causing the blinkers to flash on the Nissan. Guy then looked inside the vehicle, observing what he believed to be a drug pipe. Flores admitted the Nissan was his and said his identification was inside. A search of the vehicle revealed a folded-up dollar bill containing methamphetamine and a backpack with a revolver inside. Flores was charged with one count of carrying a loaded firearm and another count of armed drug possession.

Flores moved to suppress the evidence seized from his car, arguing the officers lacked the reasonable suspicion of criminal activity necessary to justify the detention and search. At the suppression hearing, Guy testified that he handcuffed Flores because he believed Flores acted “suspicious[ly]” by “attempting to conceal himself from the police” and then “pretend[ing] to tie his shoe.” Although Guy suspected Flores was “loitering for the use or sales of narcotics,” he provided no reason for this belief beyond Flores’ presence in a known high-crime area and his apparent attempt to avoid contact with the officers.

The trial court denied the motion. The court reasoned that Flores’ 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.” The court observed that “any normal human being would stand up and say, ‘Oh, you scared me’ or ‘Oh, what can I help you with?’ or ‘Oh, why are you coming towards me?’” It found Flores’ behavior “more than enough for this Court to find that there were articulable facts to find suspicion and enough for the officers to detain him, enough for the officers to thereafter question about identification.”

Flores subsequently pleaded guilty to one of the two charges against him but preserved his right to appeal the denial of his motion to suppress. The Court of Appeal affirmed in a divided opinion, and the California Supreme Court granted discretionary review “to determine whether Flores’s detention was justified on these facts.”

Analysis

The Fourth Amendment to the U.S. Constitution, made applicable to the states through the Fourteenth Amendment, provides in pertinent part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. In the seminal case of Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court first recognized the validity of a brief investigative detention, short of arrest, based on reasonable suspicion of criminal activity or concerns for officer safety. These seizures, which are supposed to be limited in both scope and duration, are now commonly referred to as Terry stops.

A reasonable suspicion of criminal activity exists sufficient to justify a Terry stop when the police officer “has a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Kansas v. Glover, 589 U.S. 376 (2020) (internal quotation marks and citations omitted). Although an officer’s “hunch” is not enough, “the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” Id. Courts “must consider the totality of the circumstances” to determine whether an officer properly initiated a Terry stop. United States v. Sokolow, 490 U.S. 1(1989) (internal quotation marks and citations omitted).

It is well-settled that citizens may decline to engage in consensual police encounters and that such “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” Florida v. Bostick, 501 U.S. 429 (1991). But the manner in which a person avoids such contacts may provide the necessary justification. For example, the Court noted that “expressions of shock upon seeing an officer, ducking and hiding, headlong flight, a sudden change in direction, walking quickly away while looking back at the officer, and failing to acknowledge the officer’s attempt to engage the suspect” may be relevant. The presence in a high-crime area is also a relevant consideration, but standing alone it is not enough to justify a Terry stop. Illinois v. Wardlow, 528 U.S. 119 (2000).

The Court considered the totality of the circumstances in Flores’ case and concluded that the officers clearly lacked the reasonable suspicion necessary to detain him. Although his behavior of ducking behind the Nissan and pretending to tie his shoe may have been odd, the Court explained that “the standard to justify a detention is not satisfied simply because a person’s behavior is ‘odd.’ A mere deviation from perceived social convention does not automatically signal criminal behavior.” Similarly, Flores’ presence in a high-crime area did not justify the detention because the officers did not see him “engage in any conduct suggesting he was there to buy or sell drugs or was otherwise involved in illegal conduct.” While the officers were certainly allowed to continue watching Flores or even attempt to engage him in conversation, his apparent desire to avoid contact with them coupled with his mere presence in a high-crime area without more did not justify his detention.

The Court concluded its opinion by noting that the “Fourth Amendment recognizes a measured framework for acceptable official intrusion upon the life of any individual. Police officers and private individuals may well occupy the same public space and have no particular interaction. They may also engage in consensual encounters. But before an officer can compel compliance with a show of authority, articulable facts must support a reasonable suspicion of criminal activity. In the absence of such facts, the person is constitutionally protected and empowered to go on his or her way.” Because the officers failed to articulate such facts in this case, the Court held that Flores’ detention and the search of his vehicle resulting from it violated his Fourth Amendment rights.

Conclusion

Accordingly, the Court reversed the Court of Appeal’s decision affirming Flores’ conviction and remanded the case to the trial court with directions that it permit Flores to withdraw his guilty plea and then grant his suppression motion. See: People v. Flores, 546 P.3d 1114 (Cal. 2024).  

Editor’s note: Anyone interested in the issue of reasonable suspicion in connection with mere presence in a known high-crime area or apparent nervousness when confronted by police is encouraged to read the Court’s full opinion. 

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