New SectionReasonable Suspicion: Acting Oddly in High Crime Area?

The following summary of a recent California Supreme Court ruling, People v. Marlon Flores, is surprising and, at the same time, a relief.

In May 2019, at about 10:00 p.m., Los Angeles Police Officer Daniel Guy was on patrol with his partner, Michael Marino, in the area near Mariposa Avenue in Los Angeles.  Guy regarded the area as a “known narcotics area” and “gang hangout.”  He had arrested someone in the area the night before for narcotics crimes.

As officers drove by the cul-de-sac, they saw Mr. Flores standing alone near a Nissan parked along a red curb.  Flores looked at the officers and then walked around to the back of the car and then “ducked” behind it.  

The officers pulled up and parked behind the Nissan.  Officer Marino’s body camera captured the interaction between Flores and the officers.  The video shows Mr. Flores seems to be making a “stretching movement” with one arm and then he disappears from sight behind the Nissan, meaning he had to crouch down behind the car.  This is at 0:37 on the body cam video.

A few seconds later, he raises his head to look toward the officers and then drops back out of view, as if hiding behind the Nissan.

Officers then approach Mr. Flores and illuminate him with their flashlight.  This is at 0:55 on the body cam video, or 18 seconds later.  He is bent over and facing away from the officers with both hands near his right shoe.  He is moving his hands near his right shoe. 

At 1:03 on the video, one of the officers commands Mr. Flores to stand up, but he does not do so.  At 1:16, one of the officers tells Mr. Flores to put his hands behind his head.  Mr. Flores then complies and is quickly placed in handcuffs.

In other words, it appeared that Mr. Flores might have been tying his shoe, but he took nearly 40 seconds to do so and did so behind a parked car that coincidentally seemed to hide him.  Perhaps, alternatively, he was hiding a baggie of drugs in his shoe or on the ground, but using the “I’m just tying my shoe” excuse to bend down to do so.

Officer Guy testified at trial that he believed Mr. Flores was acting “suspiciously” by “attempting to conceal himself from the police” and then “pretending to tie his shoe.”

Both officers suspected Mr. Flores was “loitering for the use or sale of narcotics.”  Officer Guy explained that this suspicion was based on where Mr. Flores was  encountered and his odd response to seeing the police.  

When officers were patting down Mr. Flores, they apparently touched a key fob and the Nissan’s lights activated and officers looked into the car, seeing a drug pipe.  Mr. Flores then said the Nissan was his and that his identification was inside the car.  Officers then retrieved a wallet inside the car and found methamphetamine in the wallet, as well as a loaded revolver in a backpack in the car.

Mr. Flores was then arrested and charged in the Clara Shortridge Foltz criminal courts building (CCB).  The trial court judge denied Mr. Flores’ motion to suppress the evidence seized as the product of an illegal detention and then an illegal search, reasoning that Mr. Flores’ act of “ducking,” “remaining hunched over,” and “toying with his feet,” even after the officers approached him and told him to stand, was “odd behavior” and “suspicious.”  The judge observed that “any normal human being” would stand up and say, “Oh, what can I help you with?” or “Why are you coming for me?”

Mr. Flores then pleaded guilty to one count of carrying a loaded firearm, Penal Code § 25850(a), and placed on three years of probation.  The count of armed possession of methamphetamine (Health & Safety Code § 11370.1(a)) was dismissed.  

The California Court of Appeals for the Second District affirmed the judgment, finding that the officers had reasonable suspicion based on Mr. Flores trying to avoid contact with the police by ducking behind a parked car and then after being approached by the police, he persisted in staying hunched over.  The appeals court found it relevant, too, that the encounter took place at 10:00 p.m. at night on a cul-de-sac known for illegal drug and gang activity.

The California Supreme Court reversed, noting the dissenting opinion from the appellate court that Mr. Flores’ behavior was “neither abnormal nor suspicious” given the “deep-seated mistrust certain communities feel toward police and how that mistrust manifests in the behavior of people interacting with them.” 

The California Supreme Court further explained that refusal to cooperate with police, without more, does not provide the level of objective justification needed for a detention, nor does mere presence in an area of expected criminal activity.  Moreover, even behavior that may be considered odd does not satisfy the standard.  Accordingly, the detention of Mr. Flores was unjustified and a violation of his Fourth Amendment rights. 

The case was then remanded with directions that the trial court permit Mr. Flores to withdraw his no contest plea and the court enter an order granting Mr. Flores’ suppression motion. 

This is a welcome ruling, but one, we think that factually is quite dependent on the fact that officers found no drug paraphernalia or drugs on Mr. Flores when he stood up.  Had he been found with either of these things, then suspicion of his crouching and appearing to hide something would probably have been regarded as reasonable.