• Detentions for Investigation
• Contacts in High Crime Areas
• Furtive Acts and Their Value in Showing a Reasonable Suspicion

A person may be lawfully detained if, in view of all the circumstances, a reasonable person would have believed that he or she was not free to leave.  One’s furtive act of an apparent attempt to hide from approaching police officers, at least in a high crime area, may be sufficient to justify a lawful detention.

Officers Michael Marino and Daniel Guy were patrolling in a “high crime area” at about 10:00 p.m. in a marked patrol car.  They drove into a cul-de-sac which was known as a “gang haunt” and a “narcotics hangout,” and where fresh graffiti was a daily occurrence.  Officer Guy had in fact made a drug-related arrest at that location the night before.  As the officers entered the cul-de-sac, they observed defendant Marlon Flores standing in the street next to a car at the end of the street.  Defendant looked in the officers’ direction and immediately walked around to the opposite rear side of the car and crouched down out of sight.  In the sequence of events (as recorded by Officer Guy’s body camera and as described in his later testimony), Officer Guy approached defendant with his flashlight directed at him. Defendant was shown by the body camera as he crouched down behind the car.  The camera then showed that defendant looked up about four seconds later in Officer Guy’s direction, and then crouched down again with his back to the officer.  Defendant later claimed to be tying one of his shoes at this time.  As Officer Guy approached defendant while shinning his flashlight at him, defendant was twice told to stand up. Both commands were ignored as defendant continued to “toy” with his right foot.  With defendant in the crouching position for some 20 seconds, Officer Guy believed he 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.” Defendant finally stood up upon Officer Guy’s third command and was told to put his hands behind his head where he was handcuffed for the officers’ safety.  Upon patting defendant down for weapons, Officer Guy set off an electronic car key in his pocket which activated the lights on the parked car.  Looking into the car through the car’s window, the officer could see in plain sight a methamphetamine bong.  Upon receiving permission to retrieve defendant’s identification from the vehicle, some methamphetamine and a loaded unregistered pistol were recovered.  Charged in state court with a number of drug and illegal firearm-related offenses, defendant’s motion to suppress the items recovered from his car was denied.  He therefore plead “no contest” to carrying a loaded, unregistered handgun (Pen. Code § 25850(a)) and received probation.   Defendant appealed.

The Second District Court of Appeal (Div. 8), in a split 2-to-1 decision, affirmed.  The primary issue on appeal (as it was in the trial court) was when, in the sequence of events, defendant was actually detained, and whether there was at that point in time sufficient reasonable suspicion to justify a detention.  Defendant argued that he was detained when the officers first approached him and that at that point there was insufficient reasonable suspicion to justify a detention.  Being illegally detained—as argued by defendant—the resulting evidence should have been suppressed. The People, on the other hand, argued that defendant was not detained until he was told to put his hands behind his head and handcuffed.  At that point—as argued by the People—his suspicious actions of ducking down behind his car and ignoring commands to stand up, in conjunction with the nature of the area (i.e., a “high crime,” “gang haunt,” “narcotics hangout”), supplied the necessary “reasonable suspicion” to justify his detention.  The majority of the Court agreed with the People.  The general rules are well established.  “The Fourth Amendment permits police to initiate a brief investigative stop when they have a particularized and objective basis for suspecting the person of criminal activity. A mere hunch is too little. This standard requires considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than what is necessary for a finding of probable cause. The standard depends on the practical considerations of everyday life on which reasonable and prudent people act. Courts must permit officers to make commonsense judgments and inferences about human behavior.”  The trial court judge listed three factors in determining when defendant was in fact detained and how such a detention was justified by the facts: (1) Defendant saw the police coming and tried to avoid contact with them by ducking down behind the parked car. (2) As the officers approached, with the police radios making noise and a flashlight trained on him, defendant continued to pretend he didn’t notice, “toying” with his shoes. (3) Defendant stayed crouched down “far too long a period of time” while ignoring the officer’s command to stand up.  The Appellate Court found this reasoning to be sound, agreeing with the trial court that defendant’s detention did not occur until he finally stood up and complied with the officer’s order to put his hands behind his head.  The Court also agreed with the trial court that these circumstances, although not sufficient to justify an arrest, certainly established sufficient reasonable suspicion to detain him; or, as the Court put it, perform a “Terry stop” (referring to Terry v. Ohio (1968) 392 U.S. 1.).  Lastly, noting that although there may have been “innocent possibilities” explaining defendant’s actions (e.g., tying his shoes), “in combination with the other factors, a reasonable officer had a reasonable basis for investigating further to resolve this ambiguity, because nervous and evasive behavior is a pertinent factor in determining whether suspicion is reasonable.”  The majority of the Court, therefore, affirmed.

There are a number of serious problems with this decision, primarily because of the selectivity of both the facts and the case law the majority opinion chose to cite.  First, the majority decision never talks about the true test for when a person is detained.  As discussed by the dissent, the law on this is quite clear: “The test to determine whether an individual has been detained is ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” (United States v. Mendenhall (1980) 446 U.S. 544, 554.)  The majority cites People v. Kidd (2019) 36 Cal.App.5th 12, at page 21, for the argument that merely shinning a flashlight, without more, does not constitute a detention.  But as pointed out by the dissent, the officers here did far more in approaching defendant than merely shining a flashlight at him.  In facts cited by the dissent, but totally ignored by the majority, we are told that as defendant was in the process of moving around to the back side of his car, the officers drove up and parked their patrol car “a little askew to and behind” defendant’s vehicle. The officers then shined their vehicle’s spotlight on defendant as he bent over behind his car.  People v. Kidd is in fact a spotlight case, where the Court there held that officers making a U-turn, parking behind defendant’s vehicle, and shinning their spotlights on the suspect, was in fact a detention.  The dissent also cites two cases totally ignored by the majority: People v. Garry (2007) 156 Cal.App.4th 1100, and People v. Roth (1990) 219 Cal.App.3rd 211.  Both cases are spotlight cases which are nearly identical to Flores’ situation, where spotlighting the suspect while (in Garry) the officer “briskly” approached the suspect, and (in Roth) “commanding” the suspect to approach the officer, respectively, were held to constitute detentions.  Also not mentioned by the majority, but covered in detail in the dissent, was the fact that while Officer Guy approached defendant (commanding him to stand up) from the rear of defendant’s vehicle, Officer Marino was walking around the front of defendant’s car, boxing him in between the two officers, his vehicle, and an iron spiked fence running parallel to the sidewalk, creating a situation where it is certainly arguable that defendant would have reasonably believed that with all that attention directed at him (spotlights, flashlights, being approached from both sides, with at least one officer issuing commands to stand up), he was detained before ever being told to put his hands behind his head; i.e., that he could not have reasonably felt free to just walk away.  However, all this having been established, it is also arguable that even before any of this occurred, the highly suspicious act of an apparent attempt to hide from an approaching police car by moving around to the rear of a parked vehicle and ducking down out of sight, late at night in a high crime area, was all by itself sufficient reasonable suspicion upon which to base a lawful detention.  The United States Supreme Court has significantly noted that while one’s mere presence in a “high crime area” is insufficient on its own to justify a detention, it is also “recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.”  (See Illinois v. Wardlow (2000) 528 U.S. 119, at pg. 124.) The Supreme Court has also held that “obvious attempts to evade officers can support a reasonable suspicion.”  (United States v. Brignoni-Ponce (1975) 442 U.S. 873, 885:  See also Florida v. Rodriquez (1984) 469 U.S. 1, 6; “. . . strange movements in his attempt to evade the officers” might even be enough to justify a detention.)  Bottom line is that we can made a colorable argument with a straight face that a person purposely moving around to the far side of a vehicle, ducking down behind it as a marked patrol car is approaching, late at night in a high crime, gang infested, drug saturated, area, in an apparent attempt to hide from the approaching officers, constitutes a reasonable suspicion justifying the person’s detention for further investigation.  If that argument was made in this case, it is not reflected in the written opinion.  Lastly, and on a whole different topic, the dissent also notes that we cannot ignore the realities of police-minority relations in today’s world, where someone of Hispanic (or any other minority) background is going to naturally be fearful of contacts with the police, whether or not he or she is engaged in criminal activity.  I won’t get into that debate at this point, but we can expect to see that scenario raising its ugly head more and more as a factor to consider in evaluating the legality of detentions and arrests in cases involving minority suspects.  So stay tuned on that hot topic.