People v. Flores

546 P.3d 1114

320 Cal.Rptr.3d 455

The PEOPLE, Plaintiff and Respondent,

v.Marlon FLORES, Defendant and Appellant.

S267522

Supreme Court of California.

May 2, 2024

Second Appellate District, Division Eight, B305359, Los Angeles County Superior Court, BA477784, Mildred Escobedo, Judge

Richard L. Fitzer, under appointment by the Supreme Court, for Defendant and Appellant.

Ellen McDonnell, Public Defender (Contra Costa), and Gilbert Rivera, Deputy Public Defender, for the California Public Defenders Association and the Contra Costa County Public Defender as Amici Curiae on behalf of Defendant and Appellant.

Galit Lipa, State Public Defender, and Jessie Hawk, Deputy State Public Defender, for the Office of the State Public Defender as Amicus Curiae on behalf of Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Zee Rodriguez, Michael C. Keller, Chung L. Mar and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.

Opinion of the Court by Corrigan, J.

Police officers detained defendant, Marlon Flores, on a dark evening in an area known for narcotics and gang activity. The Court of Appeal held the totality of circumstances described below provided reasonable suspicion for the detention. We reverse.

I. BACKGROUND

The following facts were adduced at the suppression hearing, at which Los Angeles Police Officer Daniel Guy was the only witness. In May 2019, around 10:00 p.m., Officer Guy and his partner, Michael Marino, were on patrol in the area of Mariposa Avenue. Guy considered the location to be a "known narcotic[s] area[]" and "gang hangout." He had arrested someone in the vicinity the night before for narcotics crimes. As the officers drove by a cul-de-sac, they 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.

Officer Marino’s body camera captured the interaction between Flores and the officers. The video begins as the officers park the patrol car but remain inside. At 0:15 Seconds, Flores’s head comes into view from behind the Nissan. He is in darkness. Flores stands and seems to be making a stretching motion with one arm. At 0:37 seconds, he disappears from sight. A few seconds later, he raises his head, then drops back out of view. At 0:50 seconds, the officers step out of the car and approach him. A flashlight illuminates the way. At 0:55 seconds, Flores appears on the camera’s recording. He is bent over and facing away from the officers with both hands near his right shoe. When Marino trains his flashlight on Flores, Flores does not look around. He remains bent over and continues moving his hands near his feet. The officers make no inquiry, but at 1:03, one of them tells Flores to stand up. Flores remains bent over. When Marino walks up behind Flores, Guy comes around the Nissan and approaches from the other side. At 1:12, Marino again directs Flores to stand. At 1:14, the officer says, "Hey, hurry up," and Flores begins to straighten. At 1:16, 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," Guy gave no reason why he thought so, other than the area and Flores’s behavior upon seeing the police. During a pat-down search, the Nissan’s "blinkers activated" as if the officer had "hit the key fob." 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.

The trial court denied Flores’s motion to suppress the evidence seized. The court reasoned that Flores’s acts of "ducking," "remaining hunched over," and "toying with his feet," even after the officers approached and told him to stand, was "odd behavior" and "suspicious." The court observed 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?’ " It found Flores’s behavior "more than enough for this Court to find that there were articulable facts to find suspicion and enough for the officers to detain him, enough for the officers to thereafter question about identification."

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. Conditions included five days in county jail, 90 days in residential drug treatment, and 90 days of outpatient treatment.

The Court of Appeal affirmed the judgment in a divided opinion. The majority concluded that Flores was not detained until he was ordered to stand and put his hands behind his head. (People v. Flores (2021) 60 Cal.App.5th 978, 989, 275 Cal.Rptr.3d 233 (Flores).) 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 "persist- ed 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. The trial court found Flores kept crouching for a suspiciously long time. Common sense takes context into account." (Id. at p. 990, 275 Cal.Rptr.3d 233; see also In re Tony C. (1978) 21 Cal.3d 888, 894, 148 Cal.Rptr. 366, 582 P.2d 957 (Tony C.).)

Justice Stratton opined in dissent that the detention began when officers parked their car, shined a light on Flores, and approached him from two sides. (Flores, supra, 60 Cal. App.5th at p. 992, 275 Cal.Rptr.3d 233 (dis. opn. of Stratton, J.).) But even if the detention occurred later, after Flores’s prolonged crouching, she was unpersuaded that reasonable suspicion was established. Justice Stratton accepted the trial court’s factual finding that Flores ducked to avoid police contact, but she noted that he had a right to do so. (Id. at p. 993, 275 Cal.Rptr.3d 233, citing Florida v. Royer (1983) 460 U.S. 491, 497–498, 103 S.Ct. 1319, 75 L.Ed.2d 229 (plur. opn. of White, J.) (Royer).) In her view, Flores’s 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." (Flores, at pp. 993, 994, 275 Cal.Rptr.3d 233.)

We granted review to determine whether Flores’s detention was justified on these facte.

II. DISCUSSION

[1–6] "[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.’ [Citations.] [¶] Because it is a "less demanding’ standard, "reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause.’ [Citation.] The standard "depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ [Citation.] Courts ‘cannot reasonably demand scientific certainty … where none exists.’ [Citation.] Rather, they must permit officers to make ‘commonsense judgments and inferences about human behavior.’ " (Kansas v. Glover (2020) 589 U.S. 376, 380–381, 140 S.Ct. 1183, 206 L.Ed.2d 412 (Glover), italics omitted.)

In Terry v. Ohio (1968) 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (Terry), the United States Supreme Court first recognized the validity of a brief investigative detention, short of arrest, based on reasonable suspicion of criminal activity. (Id. at pp. 21–22, 27, 30, 88 S.Ct. 1868.) It distinguished that requirement from the more demanding standard of probable cause necessary to justify an arrest. A review of Terry and its role in the evolution of Fourth Amendment jurisprudence provides illuminating context and perspective. It demonstrates the serious consideration given to judicial review of police investigative conduct over more than 50 years.

In Terry a plainclothes detective was on foot patrol in downtown Cleveland, watching particularly for the presence of shoplifters and pickpockets. At 2:30 in the afternoon he noticed two men he had not seen before standing on a corner. The detective did not approach the pair, but simply observed them for 10 to 12 minutes. During that time the detective saw the men stand on the comer....