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California Supreme Court:
Acting ‘Odd’ in High-Crime Area Did Not Justify Detention
By Kimber Cooley, Staff Writer
The California Supreme Court held yesterday that the detention of a man in an area known for narcotics and gang activities was made without reasonable suspicion as required by the Fourth Amendment based on the totality of the circumstances, despite the fact that the individual—upon seeing the officers—walked behind a nearby car, ducked down out of view, and appeared to be tying his shoes when the officers approached him.
Justice Carol A. Corrigan authored the opinion for a unanimous court, reversing the judgment of Div. Eight of this district’s Court of Appeal which found that the stop was justified and affirmed the denial of the motion to suppress by Los Angeles Superior Court Judge Mildred Escobedo.
Justice Kelli Evans wrote a separate, concurring opinion which was joined by Justices Goodwin H. Liu, Leondra R. Kruger, Joshua P. Groban and Martin J. Jenkins.
Appealing the judgment was Marlon Flores, who was contacted by Los Angeles Police Department officers Daniel Guy and Michael Marino in May 2019. Flores was standing in the street next to a car that was illegally parked against a red curb at 10 p.m.
After shining a flashlight on him, the officers noted that Flores did not look up but continued tying his shoes. After he was asked to “hurry up” and stand, he was handcuffed and a pat-down search of his person activated a key fob in his pocket, causing the blinkers on the car to light up.
Peeking inside the car, officers observed a narcotics pipe. A search of Flores’ wallet revealed a folded dollar bill containing suspected methamphetamine and a search of the car revealed a revolver inside a backpack on the front passenger seat.
He pleaded guilty to one count of carrying a loaded firearm and was sentenced to three years of probation, five days in county jail and six months of treatment for drug use.
Totality of Circumstances
Corrigan explained that, in evaluating the constitutionality of an investigative stop-and-frisk detention, a court must consider the totality of the circumstances surrounding the stop to determine if the officers had reasonable suspicion that the stopped party was involved in criminal activity.
She acknowledged that the U.S. Supreme Court has recognized that nervous, evasive behavior and being present in high-crime areas are pertinent factors in evaluating reasonable suspicion, but nonetheless found the record lacking.
In the present case, Corrigan reasoned:
“Flores’s apparent pretext of tying his shoe, combined with his repeatedly ducking down behind the car, could reasonably be construed as ‘odd’…, particularly when done in reaction to the sight of a uniformed police officer….Nonetheless,…the standard to justify a detention is not satisfied simply because a person’s behavior is ‘odd.’….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 [criminal] activity.”
Narcotics Area
She continued:
“The fact that Flores was present in a ‘known narcotic[s] area[],’ where the officer had arrested someone for drug-related crimes the night before, does not tip the scales in favor of detention. Notably, 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.”
Distinguishing cases relied upon by the prosecution to justify the stop, in which courts found pertinent that the suspects fled from police, Corrigan commented:
“Flores’s disinclination to engage with the officers does not carry the same salience as headlong flight in the totality of the circumstances analysis. His acts of ducking out of sight, bending with his hands by his shoe, and not acknowledging the officers’ presence, suggest an unwillingness to be observed or interact. But they are not the ‘consummate act of evasion.’”
She pointed out that “[t]he officers would have been well within the bounds of the Fourth Amendment to continue to watch Flores as he stood on the street” or to engage him in a consensual conversation, but said his “mere refusal to cooperate” did not provide the objectively reasonable suspicion to detain.
Objective Standard
Corrigan took a moment to recognize that out-of-state authorities have taken into account a community’s experience with law enforcement in evaluating the reasonableness of any asserted suspicion of criminality. She wrote:
“In making that assessment, it is imperative that the circumstances confronting both the officer and the citizen be judged against an objective standard.
“We apply well-established law in concluding that the detention here was unauthorized. In reaching that conclusion, we are not called upon to grapple with the important and broader issues referenced above. Flores had the right to decline further interaction with the officers and, under these facts, the officers had no authority to compel him to do otherwise.”
The court remanded with directions that the trial court permit Flores to withdraw his plea and enter an order granting the motion to suppress.
Evans’ View
Evans agreed with Corrigan’s opinion that the detention was unlawful, but wrote separately to express a concern that “naïve or ill-informed notions of police interactions must not shape our Fourth Amendment jurisprudence” and said “it is still the case that communities of color disproportionately experience heightened levels of police scrutiny and racial profiling.”
Citing a litany of names of persons killed by police officers, she concluded that “it is apparent why attempting to avoid police officers reflects, for many people, simply a desire to avoid risking injury or death.”
She remarked:
“Today’s opinion notes that some courts have begun accounting for the impact of racial disparities in policing in the totality of the circumstances analysis. The opinion does not rely on such considerations, but neither does it foreclose future litigants from developing arguments about how racial disparities in policing might inform one’s decision to avoid contact with the police. While the evaluation of whether an individual’s behavior supports a finding of reasonable suspicion is an objective one, a test that fails to account for the realities of so many Californians would not be a reasonable one.”
Motion to Suppress
After a hearing on Flores’ motion to suppress evidence, Escobedo found that by “ducking,” “remaining hunched over,” and “toying with his feet” even after the officers approached him, Flores was displaying “odd behavior” and acting “suspicious[ly].” She reasoned 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?”
Under the circumstances, Escobedo found Flores’ behavior gave the court “more than enough…to find that there were articulable facts to find suspicion and enough for the officers to detain him….”
On appeal, Justice Shepard Wiley Jr. agreed with Escobedo that the totality of the circumstances justified the investigative detention. He wrote:
“Flores asks, how do you know if a person is pretending to tie his shoe? The answer is you would have valid suspicions if the person picked an unlikely moment for the task—in the dark, just after seeing police, and just after ducking once already—and if the person took an unusually long time at it. The trial court found Flores kept crouching for a suspiciously long time. Common sense takes context into account.”
Justice Maria E. Stratton dissented, citing similar concerns as the high court. She said:
“The majority opinion narrows the options for those who want to be judged ‘normal’ and hence beyond suspicion. They must stand erect and chat up the officers who approach them. Tell that to Eric Garner.”
Garner was an African American man killed by a police officer in New York on July 17, 2014.
The case is People v. Flores, 2024 S.O.S. 1480.
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