By David E. Mastagni and Taylor Davies-Mahaffey
Mastagni Holstedt, APC
The debate continues on whether a person’s flight upon encountering law enforcement should be interpreted as a sign of guilt or criminal activity. On May 2, 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 p.m., Officers Daniel Guy and Michael Marino patrolled a location known to be a “narcotics area” and “gang hangout.” 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 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 him to place his hands behind his head. Flores complied, and the officer placed him in handcuffs. 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, 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 he was loitering for the use or sales of narcotics. Guy justified the stop based on the area’s reputation and Flores’ behavior upon seeing the police.
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’ 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 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.
- “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” and Balancing an Individual’s Right to Be Free From Unjustifiable Intrusion
The California Supreme 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. 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.
People v. Flores (2024) 60 Cal.App.5th 978 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.