Before Officers May Detain Someone They Must Be Able To Articulate A Legally Cognizable Reason

People v. Flores (Cal., May 2, 2024, No. S267522) 2024 WL 1919992, at *12

Background to detention

In May 2019, Officer Guy and his partner, Michael Marino, were on patrol in the area of Mariposa Avenue, a “known narcotic[s] area[ ]” and “gang hangout.” The officers drove by a cul-de-sac, and saw 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. Flores bent over and faced away from the officers with both hands near his right shoe.  Marino trains his flashlight on Flores and he does not look around. He remains bent over and continues moving his hands near his feet. An officer  tells Flores to stand up. Flores remains bent over. Marino again directs Flores to stand. 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.” The officer suspected Flores was “loitering for the use or sales of narcotics” but gave no reason why he thought so, other than the area and Flores’s behavior upon seeing the police. 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.

Motion to suppress

The trial court denied Flores’s motion to suppress the evidence seized.

Flores pleaded no contest to one count of carrying a loaded firearm. (Pen. Code, § 25850, subd. (a).) In exchange, one count of armed possession of methamphetamine was dismissed. (Health & Saf. Code, § 11370.1, subd. (a).) Pursuant to the terms of the bargain, he was ordered to serve three years’ probation.

The Court of Appeal affirmed and concluded that Flores was not detained until he was ordered to stand and put his hands behind his head.  It found reasonable suspicion justified the detention based 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 and crouching, 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. “on a cul-de-sac known for its illegal drug and gang activity.” (Id. at pp. 989, 986, 275 Cal.Rptr.3d 233.) As for whether Flores was simply engaged in the act of tying his shoe, the majority observed that “innocent possibilities” exist, but an officer “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.

Investigative stop and detention of Flores

“[T]he 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.] ‘Although a mere “hunch” does not create reasonable suspicion, 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.’

Here, Flores was detained before any incriminating evidence was recovered. Flores failed to acknowledge the officers’ approach and sought to avoid interacting with them. His behavior and  presence in a high crime area at night, did not provide a particularized and objective basis for suspecting that Flores was doing something illegal.

A person may decline to engage in a consensual encounter with police. 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, 111 S.Ct. 2382, 115 L.Ed.2d 389 (Bostick); accord, Wardlow, at p. 125, 120 S.Ct. 673.) A truly consensual encounter does not implicate the Fourth Amendment because the officer is simply approaching a person in a public place and engaging in “ ‘personal intercourse.’ Officers, like others, may do so. But the officer must have legal cause to command the civilian’s attention and cooperation. (Royer, at p. 498, 103 S.Ct. 1319 (plur. opn. of White, J.).)

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 (Souza).) The relevant inquiry is the “ ‘degree of suspicion that attaches to particular types of noncriminal acts.’ ” (Sokolow, supra, 490 U.S. at p. 10, 109 S.Ct. 1581, quoting Illinois v. Gates (1983) 462 U.S. 213, 243–244, fn. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527.)

The record here fails 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.) 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 establishment of reasonable suspicion will always be contextual. It will be informed by the totality of circumstances and objective scrutiny of the reasons given for an officer’s decision to infringe upon “the right of every person to enjoy the use of public streets, buildings, parks, and other conveniences without unwarranted interference or harassment by agents of the law.” (Tony C., supra, 21 Cal.3d at p. 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

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.

Disposition: Reversed and remanded with directions that the case be returned to the trial court to permit Flores to withdraw his no contest plea and the court to enter an order granting Flores’s suppression motion.

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