A person’s apparent attempt to avoid being contacted by the police while in a high-crime area at night is insufficient, by itself, to justify a detention. 

Two uniformed Los Angeles Police Department officers were patrolling in a “known narcotics area” and “gang hangout” at about 10 p.m. in a marked patrol car. They drove into a cul-de-sac that was known as a “gang haunt” and where fresh graffiti was a daily occurrence. One of the officers had made a drug-related arrest at that location the night before. As the officers entered the cul-de-sac, they observed an individual, later identified as defendant Marlon Flores, standing at the end of the street next to an illegally parked car.  

Flores looked in the officers’ direction, walked to the opposite rear side of the car and crouched down out of sight. In the sequence of events, as recorded by one of the officer’s body camera and described in his testimony later, the officers remained in their car for about 45 seconds as they shined their vehicle’s spotlight on the area where they’d seen Flores.  

Flores briefly stood up, but then bent down again behind the car. The officers then exited their car, with the first officer approaching Flores with his flashlight directed at him. At the same time, the second officer walked around the front of the parked car and approached Flores from the opposite side. The body cam shows that Flores looked up about four seconds later in the first officer’s direction. 

Flores later said he was tying one of his shoes. As the first officer approached Flores while shining his flashlight at him, Flores was twice told to stand up. Both commands were ignored as defendant continued to “toy” with his right foot for about 20 seconds. The officer later testified that he believed Flores was merely pretending to tie his shoe while actually attempting to hide drugs from view and “that he was there loitering for the use or sales of narcotics.”  

Flores stood up upon the officer’s third command and was told to put his hands behind his head and he was handcuffed. While patting down Flores for weapons, the officer inadvertently set off an electronic car key in Flores’ pocket, which activated the lights on the parked car. Looking into the car through a window, the officer could see in plain sight a methamphetamine bong.  

Upon receiving permission to retrieve Flores’ identification from the vehicle, officers also found methamphetamine and a loaded unregistered pistol. Charged in state court with drug and illegal-firearm offenses, Flores’ motion to suppress the items recovered from his car was denied. He therefore pleaded “no contest” to carrying a loaded, unregistered handgun (Pen. Code § 25850(a)) and received probation.   

He appealed. The Second District Court of Appeal (Div. 8), in a 2-to-1 decision, upheld the Flores’ detention as lawfully based upon a reasonable suspicion. (See People v. Flores (Feb. 16, 2021) 60 Cal. App. 5th 978, as briefed on LegalUpdates.com, Vol. 26, #3, March 6, 2021.) Flores appealed to the California Supreme Court. 

The California Supreme Court, in a unanimous (six-justice) decision, reversed the lower court. 

The issue on appeal was whether Flores had been lawfully detained, and because all of the evidence in the case was the product of his detention, whether it was admissible. 

The law is clear that the “the Fourth Amendment permits an officer to initiate a brief investigative...(detention) 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.’” (Kansas v. Glover (2020) 589 U.S. 376, 380–381.)  

Without deciding when in the sequence of events Flores had been “detained” in this case, the California Supreme Court determined that no matter where you draw the line, his detention was unlawful.  

The People argued that Flores’ perceived suspicious actions, in a “high crime” gang area, rendered his detention lawful. The primary U.S. Supreme Court case cited by both the defendant and the People was Illinois v. Wardlow (2000) 528 U.S. 119.  In Wardlow, the High Court held that flight alone, when it occurs in a “high crime” area, is sufficient to justify a detention. The People also cited District of Columbia v. Wesby (2018) 583 U.S. 48, where it was held that factors such as “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,” are all indicative of criminal activity, arguably justifying a temporary detention for investigation.  

In this case, while we don’t have anything so overt as flight, we do have Flores moving to the far side of a car and ducking down behind the car as officers approach, his debatable claim that he was merely tying his shoes, and his refusal to stand until so commanded three times. This, as argued by the People, in conjunction with the time (10 p.m.) and place (a high drug and gang activity area) was sufficient to justify his detention.  

The California Supreme Court held here, however, that Flores’ actions of bending down behind his car and being slow to stand up when commanded to do so, despite the nature of the area where this all occurred, doesn’t measure up to the circumstances discussed in either Wardlow or Wesby. Per the court, “this behavior, along with Flores’ presence in a high-crime area at night, did not provide a particularized and objective basis for suspecting that Flores was doing something illegal.” 

Absent a reasonable suspicion of ongoing criminal activity, a “refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.” (Citing Florida v. Bostick (1991) 501 U.S. 429, 437.)  Despite having at least some of the suspicious actions referred to by the U.S. Supreme Court, the court here held that it was still not enough to constitute a reasonable suspicion that Flores was engaged in some form of criminal conduct. Per the court: “The record, considered in its totality, 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.’”  

The high court’s newest member, Justice Kelli Evans, was joined by four other justices in a concurring opinion in which she wrote that “many individuals — including, particularly, people of color — commonly hold a perception that engaging in any manner with police, including in seemingly casual or innocuous ways, entails a degree of risk to one’s safety.” Evans listed 35 people killed in interactions with police in recent years in the U.S. “Given this context, it is apparent why attempting to avoid police officers reflects, for many people, simply a desire to avoid risking injury or death,” it read. 

While finding that Flores’ actions in response to the officers’ approach “odd,” the court held that just being odd is not enough. As noted by the court, the officers did not see Flores “engage in any conduct suggesting he was there to buy or sell drugs or was otherwise involved in illegal conduct...(and) did not see (Flores) interact with anyone, or retrieve or hide anything.”  

The officers also “did not see anyone (else) in the immediate vicinity. No one had called for help or to report a crime in progress. The hour (10 p.m.) was not particularly late.” The officers also “did not see (Flores) standing in that location for more than a few moments before the officers pulled up in their patrol car.” Lastly, Flores was also not seen hiding or discarding anything.  

Standing next to an illegally parked car, even if he ducks behind it as the police are approaching, was legally insignificant. Even Flores’ apparent reluctance to cooperate by not immediately standing when ordered to do so was held to be legally insignificant. Finding nothing to support the officers’ belief that defendant was engaged in criminal activity, the court ultimately found the detention to be unlawful, and that the resulting evidence should have been suppressed. 

As noted above, I previously briefed this case in March of 2021, shortly after it was first decided by the Second District Court of Appeal in Los Angeles. At that time, I noted that the majority opinion had left a lot of facts out of their decision that the dissenting justice supplied. I also noted that there was a strong argument for supporting the lawfulness of this detention and subsequent search. Nothing in this California Supreme Court’s decision changes my mind.  

Even though the court here makes mention of the value of an experienced police officer’s expertise to spot and correctly evaluate suspicious activity, and such opinion’s importance to a finding of a reasonable suspicion, the court poo-poos the value of the officers’ opinions in this case. 

As a former cop and later a prosecutor who has read and evaluated literally thousands of search and seizure cases, I find it hard to understand how a court could find anything other than that the detention in this case was lawful.  

It appears to me that in a gang or drug area, at 10 p.m., where a person, in my mind, so obviously attempts to avoid being seen by officers, then shows reluctance to cooperate under circumstances where the officers may believe their safety was at risk, that this information is of no less significance than the flight that the U.S. Supreme Court found enough in Illinois v. Wardlow to support a finding of reasonable suspicion, thus justifying a temporary detention to investigate. 

This case, therefore, is one that needs to be heard by the U.S. Supreme Court, in my never-to-be-so-humble opinion. Hopefully, the California attorney general agrees with this and seeks certiorari before the high court. 

The decision narrows the circumstances under which officers can stop and detain people, creating immediate implications for officers throughout California. The ruling could also affect ongoing cases, particularly when people of color allege they were detained only for trying to avoid interactions with police.