The issue of whether a person’s
flight, upon encountering law enforcement, constitutes a sign of guilt or
criminal activity, continues to be debated. On May 2, 2024, the California
Supreme Court wrestled with this question–to what degree is someone’s conduct
“reasonably suspicious” enough to justify an officer’s “stop and frisk” of an
individual under the Fourth Amendment?
The Court reviewed the case
involving a detained man who acted conspicuously when he ducked from officers
at night in a known high-crime area. The Court ultimately concluded that the
police lacked enough reasonable suspicion to justify the detention or Terry stop.
Background
In May 2019, around 10:00 p.m., officers Daniel Guy and
Michael Marino patrolled a location
known to be a “narcotics area” and “gang hangout.” Ofc. Guy had arrested
someone in the vicinity the night before for narcotics crimes. As the officers
patrolled, they saw Marlon Flores standing alone in the street beside a parked
Nissan. Flores looked at the officers, walked around the back of the Nissan,
ducked behind it, and then moved his head in and out from behind the Nissan. As
the officers approached, they observed Flores bent over, facing away from them
with both hands near his shoe.
When Ofc. Marino pointed his flashlight at Flores, Flores
exhibited no reaction, remained bent over, and continued moving his hands near
his feet. The officers directed Flores to stand up. Once Flores straightened,
officers directed Flores to place his hands behind his head. Flores complied
and the officer placed him in handcuffs. Ofc. Guy pointed his flashlight into
the car and noticed a drug pipe. Flores admitted the Nissan was his. When
retrieving Flores’ wallet from the vehicle, Ofc. Guy found a folded dollar bill
containing suspected methamphetamine and recovered a revolver.
The officers testified that they detained Flores because
they believed he acted suspiciously by attempting to conceal himself and
pretending to tie his shoe. They suspected Flores was loitering for the use or
sales of narcotics. Ofc. Guy articulated the area and Flores’ behavior upon
seeing the police as his justification for the stop.
Lower Courts’ Judgments: Reasonable Suspicion Satisfied
Flores filed a motion to suppress the evidence seized,
which the trial court denied. The court reasoned that Flores’ acts of “ducking,
remaining hunched over, and toying with his feet,” even after officers
approached, was “odd behavior” and “suspicious.” Consequently, the court found
Flores’s behavior enough to find reasonable suspicion and enough to detain
him.
The Court of Appeal affirmed the lower court’s judgment. It
found reasonable suspicion justified the detention on the following facts: (1)
Flores saw police and tried to avoid contact with them by ducking down behind a
parked car; (2) during the ducking, Flores continually moved his hands, keeping
them out of sight of the police; (3) as they approached, Flores persisted in
his odd crouch position for far too long a period of time; and (4) the activity
occurred at 10:00 p.m. in an area known for its illegal drug and gang
activity.
California Supreme Court Review: Unauthorized Detention Due
to Lack of Reasonable Suspicion
The California Supreme
Court reversed the lower courts and found that the officers unlawfully detained
Flores. The Court held that the circumstances, when viewed in totality, were
insufficient to provide objective reasonable suspicion that Flores was engaged
in criminal activity. As such, the Court remanded the case back to the trial
court with the directive to grant Flores’ suppression motion.
Essentially, the Court reasoned that:
- There was no headlong flight, and Flores’ disinclination to engage does not carry the same salience as headlong flight;
- Presence in a high-crime area and “odd” or “nervous” behavior is relevant to the reasonable suspicion calculus, but does not per se establish reasonable suspicion and;
- “Nervous” or “evasive” behavior may be totally unrelated to the consciousness of guilt and could just as easily be motivated by other factors.
On
Refusal to Interact
It is well settled that a person may decline to engage in a
consensual encounter with police. Such refusal to cooperate, without more, does
not meet the “reasonable suspicion” standard. The Fourth Amendment protects an
individual’s “right to decline to interact with police and ‘go on one’s way.’”
Nonetheless, the manner in which a person avoids contact may be considered by
officers and courts in assessing reasonable cause for a detention.
“Nervous” or “evasive” behavior, however, is still a
pertinent factor in determining reasonable suspicion and need not be ignored.
Examples of such behavior include ducking and hiding, headlong flight, a sudden
change in direction, walking quickly away while looking at the officer, and
failing to acknowledge the officer’s attempt to engage.
Here, the Court reasoned that although Flores’ behavior
could reasonably be construed as “odd” and “noteworthy,” particularly when done
in reaction to seeing the police, his behavior, on its own, failed to support a
reasonable suspicion that justified detention. Mere deviation from social norms
does not signal criminal behavior.
On “Headlong
Flight” & Balancing an Individuals’ Right to be Free from Unjustifiable
Intrusion
The Court referenced other
cases where courts deemed detention justified due to fleeing. One case involved
an individual who fled from officers upon their arrival (Illinois v. Wardlow)
and another involving an individual who drove away from the crime scene as
police arrived (People v. Brown). In both cases, the courts concluded
that flight upon seeing the police supported reasonable suspicion. Headlong
flight “is not necessarily indicative of wrongdoing, but it is certainly
suggestive of such.” It elevates to more than a simple refusal to engage; “it
is the consummate act of evasion.”
Despite this, the Court reasoned that Flores’ ducking,
toying with shoes, and failure to acknowledge the officers suggested an
unwillingness to interact, but did not equate to “headlong flight.” The Court
noted that the special circumstances evidenced in the other cases lacked in
Flores’ case. The officers did not see Flores interact with anyone or hide
anything. No one called for help or reported a crime in progress, and the hour
was not particularly late.
Further, the officers could have continued to observe
Flores to assess his suspected criminality, and further investigation may have
changed the calculus. Ofc. Guy failed to articulate more than a “hunch of
criminal activity,” and a “mere hunch does not create reasonable suspicion.”
The Court relied on Terry v. Ohio, where the U.S.
Supreme Court (SCOTUS) made efforts to balance the police power to “stop and
frisk” with an individual’s Fourth Amendment right to be free from
unjustifiable intrusions of one’s personal security. Terry held that an
officer must have a reasonable, articulable suspicion of criminal activity to
conduct a brief investigatory stop. SCOTUS emphasized that detention is a
“serious intrusion” and may “inflict great indignity and resentment.”
The California Supreme Court built on the concerns voiced
by Terry, noting that an individual’s lived experiences may influence
how they respond to a police presence. The Court considered that the series of
acts observed by an officer might each be innocent in and of themselves and not
necessarily related to any consciousness of guilt. Moreover, the Court stated
no particular factors need to be present to justify a detention.
Practical Implications
The establishment of “reasonable suspicion” will always be
contextual. It will be informed by the totality of circumstances and objective
scrutiny of the officer’s reasons for infringing on a detainee’s personal
liberty.
Flores does not alter the standard for reasonable suspicion. In order to
detain a citizen on suspicion of criminal activity, officers still must have
the level of suspicion sufficient to justify a Terry stop. However,
under Flores, the analysis becomes more fact-intensive. Casually trying
to avoid contact or observance is not enough, on its face, to warrant a
detention. 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.
Officers should be wary to adopt “a bright line rule” in assuming that
detention is authorized in any instance in which an individual avoids police
contact.
(People v. Flores (2024) 60
Cal.App.5th 978)
