People v. Flores ( 2021 )

Filed 2/16/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305359
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA477784)
v.
MARLON FLORES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mildred Escobedo, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Zee Rodriguez, Supervising Deputy
Attorney General, and Michael C. Keller, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
A police officer is allowed to question people on the street,
who themselves are free both to refuse to answer the officer and
to refuse even to listen to the officer. People are fully at liberty
merely to go on their way. (Florida v. Royer (1983) 460 U.S. 491,
497–498 (plur. opn. of White, J.).)
These are core American freedoms. Refusal to cooperate
with police, without more, does not create an objective
justification for an investigative detention. (Florida v. Bostick
(1991) 501 U.S. 429, 437.)
But some reactions to police can be telltale. These
reactions may suggest consciousness of guilt and may entitle
police to investigate further. Under the rule of Terry v. Ohio
(1968) 392 U.S. 1, police patrolling a high crime area reasonably
become suspicious when a person sees them and runs. This
reasonable suspicion justifies detaining the runner for
investigation: a Terry stop. (Illinois v. Wardlow (2000) 528 U.S.
119, 124–125 (Wardlow).) Nervous and evasive behavior is a
pertinent factor in determining whether suspicion is reasonable.
(Id. at p. 124.)
“Headlong flight—wherever it occurs—is the consummate
act of evasion: It is not necessarily indicative of wrongdoing, but
it is certainly suggestive of such.” (Wardlow, supra, 528 U.S. at
p. 124; see also Kansas v. Glover (2020) __ U.S. __, __ [140 S.Ct.
1183, 1188–1189] (Glover) [reaffirming Wardlow].)
Judicial determinations of reasonable suspicion “must be
based on commonsense judgments and inferences about human
behavior.” (Wardlow, supra, 528 U.S. at p. 125.) There are
innocent explanations for avoiding police, so flight does not
necessarily indicate ongoing criminal activity. But unprovoked
flight upon noticing the police entering a high crime area gives an
2
officer a reasonable basis to detain the runner to investigate
further. (Id. at pp. 121–125.) The Fourth Amendment allows the
officer “to resolve the ambiguity.” (Id. at p. 125.)
This federal approach governs us. We are not permitted
some state law departure. (People v. Souza (1994) 9 Cal.4th 224,
232–233.)
We affirm the trial court’s denial of a motion to suppress
evidence.
I
A
The police here were patrolling a high crime area. They
knew this particular street. They patrolled it daily because it
was a narcotics hangout. One officer on this two-man team had
made a drug arrest in that cul-de-sac the night before. They also
knew this cul-de-sac to be a gang haunt; taggers daily sprayed
gang graffiti there.
About 10:00 p.m., the two officers drove into this cul-de-sac.
At the preliminary hearing, Officer Michael Marino testified
Marlon Flores was standing in the street behind a car that was
parked on the red curb at the dead end. “After we initially saw
him, he went over to the passenger side rear fender area,
appeared to be ducking down as if trying to hide or conceal
something from us.”
The officers believed Flores “was attempting to conceal
himself from the police.” An officer got out of the police car and
approached the crouching Flores, who continued to crouch for
some 20 seconds as the officer walked toward him with the
flashlight. The police believed Flores was pretending to tie his
shoe.
3
The police thought Flores’s actions were suspicious. They
ordered him to stand and put his hands on his head. They
handcuffed Flores out of concern for their safety. One officer
checked Flores for weapons. This officer patted an electronic car
key on Flores that activated the lights on the parked car. The
other officer looked through the car window and saw a
methamphetamine bong. The officer suspected the car might
contain other contraband.
The police asked Flores if this was his car; Flores said yes.
They asked for identification. Flores directed the police to his
wallet, which was inside the car in the driver’s side door. Flores
gave his consent for the police to get his wallet. In the wallet
police found a bindle of what looked like methamphetamine.
Police then searched Flores’s car and found a loaded and
unlicensed gun inside a backpack on the front passenger seat.
B
The trial court denied Flores’s motion to suppress the gun
evidence. This hearing was brief: just one witness.
Judge Escobedo asked the prosecutor, Juan Mejia, to call
his first witness. Mejia summoned Officer Daniel Guy to the
stand. Guy testified he and his partner Marino saw Flores on the
day in question.
Q BY MR. MEJIA: And what, if anything, did you see the
defendant doing?
A The defendant was standing in the roadway next to a
silver Nissan. And as we approached closer, he ducked behind the
rear passenger panel of the vehicle.
Q And did that cause you to do anything?
A Yes. We conducted a pedestrian stop.
....
4
Q And did—when you were approaching the defendant and
that vehicle, did he look in your direction?
A Yes.
Q And what, if anything, did the defendant do when he
looked in your direction?
A He proceeded to the passenger side of the vehicle and
began to crouch.
Q Did that cause any suspicion?
A Yes.
MS. PRESCOP: Objection. Leading.
THE COURT: Overruled.
Q BY MR. MEJIA: And based on that suspicion—or what
was the suspicion that caused you to believe?
A Based on the suspicion this is a known narcotics [area]. I
myself have made an arrest just prior, the night prior for
narcotics. So my suspicion believed that he was there loitering for
the use or sales of narcotics.
Q And him getting—crouching down like that, that caused
you to believe that there was some crime occurring perhaps?
A That he was attempting to conceal himself from the
police.
Flores’s attorney, Julianne Prescop, cross-examined Guy.
Q And when you said that when he saw you, he ducked
towards the passenger side of the car; is that correct?
A That’s correct.
Q And at that point he was at the curb area; is that correct?
A Yes.
Q Okay. And when he ducked to that side he was there for
approximately a minute before you pulled over or before you—
A It was probably less than a minute.
5
....
Q Okay. He was—when you approached him he was
leaning down tying his shoes?
A I believe he pretended to tie his shoe.
At this point, the defense showed a video from a police
body-worn camera. Prescop noted there was no audio for the first
part of the video. The transcript notes the video was played in
open court but was not reported by the court reporter. This
portion of the hearing is not transcribed. Prescop continued her
cross-examination and asked about the video images that people
at the hearing had just been watching.
Q So [that video is] a fair and accurate depiction of what
you saw before you approached him that day; is that correct,?
A No. The body worn camera only faces a certain direction.
My head can go in another direction.
We describe the contents of this video, which is in the
record.
The video is two minutes and four seconds long. It begins
with a view from the interior of what seems to be a marked police
car. A slice of the outside world is visible through the windshield
and the right passenger window. The camera is pointed upward
at an angle. At that angle, the roadway and people at street level
are out of the frame at the outset. Rather the beginning shows
only sky, rooftops, upper portions of buildings, and tree tops. The
sky is dark. It is nighttime.
The first few seconds show the police car is moving forward
and eventually stopping. Flores is not within the camera’s frame;
we cannot see him at all. The camera angle is not pointed in his
direction. As the car rolls forward, the camera view continues to
change, as though the camera were mounted on a dolly. At the
6
seven second mark, the car stops and the video view becomes
static. Flores still is not within the camera’s view.
At about the 12 second mark, you can see some sort of
motion in a dark area in the extreme lower left corner of the
wide-angle view. At about the 15 second mark, Flores’s head
rises into view. Flores stands and seems to be making some sort
of motion with one arm, as though he is working it in a circle to
stretch or loosen his shoulder or back muscles.
At the 37 second mark, Flores crouches down and his head
drops out of view.
At the 41 second mark, Flores raises his head again.
At the 45 second mark, again Flores drops from view and
remains out of the camera’s picture.
At about the 50 second mark, the body camera shows an
officer wearing the camera opening his front passenger door and
getting out of the police car. At 53 seconds this camera moves
forward. We see the officer must be walking towards Flores. The
officer’s flashlight is illuminating the way, but Flores remains out
of view behind the car.
At 54 seconds, the officer wearing the camera continues to
walk forward and then around the car. The officer’s and camera’s
forward motion brings Flores into the camera’s view.
At 55 seconds, we see Flores crouched, facing away from
the camera with both hands near his right shoe. His back is to
the camera: his body conceals his hands and his right shoe from
the approaching officer and the camera. The upper right corner
of the picture shows the officer’s flashlight pointing at Flores.
Flores does not raise his head or turn toward the source of
the approaching light, which is very bright and now has suddenly
and sharply cast Flores’s shadow in front of him. Flores does not
7
raise his hands above his head or make any visible response to
the sudden illumination. Rather he remains in a crouch and
continues to move his elbows and arms as though he is toying
with his feet, but we still cannot see his hands or his right foot.
At 57 seconds, the audio comes on and the officer continues
to walk towards Flores with the bright light shining on Flores.
The chatter from the officer’s walkie-talkie is noisy. Flores is
silent: he does not respond to this approaching noise and light.
Flores continues to crouch and to toy with his right foot, which
remains out of the camera’s view.
At one minute and one second, the officer and his camera
stop their forward motion. Flores remains crouched in the same
position, facing away from the camera and the officer, hands still
concealed.
At about one minute and three seconds, an officer asks
Flores to stand up.
Flores remains in this crouched position, ignoring the
officer and continuing to toy with the area around his foot.
An officer again asks Flores to stand up at the one minute
and 12 second mark.
Flores remains in his crouch.
At one minute and 14 seconds, the officer says “Hey, hurry
up.” Now Flores begins to stand.
At one minute and 16 seconds, the officer tells Flores, “your
hands behind your head,” and Flores complies. The police
handcuff Flores and have him stand near a fence.
In sum, at 10:00 p.m. at night, on a cul-de-sac known for its
illegal drug and gang activity, police see a man in the street who,
when he sees them, goes around and ducks behind a car. The
man looks up, ducks behind the car again, looks up again, and
8
then ducks down again. When an officer approaches to see what
is going on, the man remains crouched, with his hands out of
sight and with his moving arms away from the approaching
officer and his bright flashlight, which casts an obvious beam on
the man. The beam contrasts sharply with the dark street and
sidewalk and casts the man’s shadow in front of him, in the
man’s line of sight. The approaching officer’s radio is noisy.
Despite the approaching light and noise, the man continues to
face away from it, to move his arms, and to keep his hands out of
the officer’s view. He stays ducked down for about 20 seconds.
The officer testifies he suspects the man is “there loitering for the
use or sales of narcotics.” Officers find the man has
methamphetamine, a methamphetamine bong, and a loaded gun.
C
At the hearing, Judge Escobedo invited argument on
Flores’s suppression motion.
Defense attorney Prescop argued the detention was illegal
from the start and the drugs and the gun were the fruit of the
poisonous tree. Judge Escobedo asked, “So your argument is
essentially that the fact that he was standing by a car and
ducked down is not enough?” Prescop agreed: that was her
argument.
Prosecutor Mejia argued the encounter was a classic Terry
stop. Mejia recounted the video. He noted Flores “continued to
stay down in a bent position, which was very unusual. Usually
when a citizen is approached by a police officer you would stand
up and pay attention or—but he continued in that crouched
position even as the officers were approaching him from two
different sides.”
9
Judge Escobedo remarked what the video showed was
“odd.”
Mejia continued: Flores “crouched down as if to hide from
them as to get out of the police presence. That’s the reasonable
suspicion.”
Mejia said the video showed the officers see Flores “do a
furtive gesture and then [he] continued to do that. It’s not like,
you know, you do go down and tie your shoe. You have to bend
down. But he looked like he was, according to the testimony, was
first hiding. And then you see it on the video. He stays down in
that position in a very, very odd suspicious manner.”
Judge Escobedo said, “The question here for the Court truly
is whether there [were] specific articulable facts that appear to be
enough ground for suspicion. And really the bottom line is the
Court to determine does it sound like they’re just coming up with
something to give them reason to go and disrupt this citizen’s
activity or was there true reasonable suspicion.”
“The Court is struggling with this in this way. Had the
defendant been standing there and the car approaches and the
defendant continued to just stand there and the officers
approached, I don’t think there would have been sufficient
articulable facts. [¶] What happens in this scenario is defendant
does, as in these other cases, try to avoid contact because he sees
the police officers and he ducks. The defendant argues he’s tying
his shoe. Let’s just assume I accept that for a second, and he’s
tying his shoe. [¶] Well, the minute the police officers stop and
shine the light on him, 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?’ [¶] But the video
clearly shows he ducks down. He pretends to be tying his shoe or
10
is tying his shoe. And as Mr. Mejia points out, and it struck the
Court as well in viewing the video, he doesn’t stand up. He’s still
crouched down toying with his feet. And the officers are walking
towards him with a huge light on him. Because you can see that
his pants are below his waist. His underwear is showing. He’s
still ducked down, not moving, nothing is being said. The officers
say something as they’re approaching, and the person is still
hunched over. [¶] That’s odd. That’s odd behavior. That’s not
normal. That’s suspicious. [¶] So when the officers approached
and they say, ‘Hey, stand up,’ even then he’s not standing up.
That’s sufficient for the Court to find that there’s specific
articulable facts. [¶] And that’s what I was struggling with.
Had he just gotten up even if he was tying his shoe while they’re
approaching him. But that didn’t occur. It was far too long a
period of time. And he didn’t even get up until the officer said,
‘Hey, stand up.’ That was odd, and I think that that’s suspect.
[¶] And I think the ducking and remaining hunched over is 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.”
After Judge Escobedo denied his suppression motion,
Flores pleaded no contest to carrying a loaded, unregistered
handgun in violation of Penal Code section 25850, subdivision (a).
The court suspended imposition of the sentence, placed Flores on
formal probation for three years with conditions including a drug
program and 45 days of CalTrans work, and gave him credit for
10 days served.
II
Flores challenges the legality of this street encounter.
11
In reviewing an order on a motion to suppress, we defer to
the trial court’s factual findings, express or implied, if substantial
evidence supports them. We exercise independent judgment in
determining whether, on those facts, the police action was
reasonable under the Fourth Amendment. (People v. Silveria
(2020) 10 Cal.5th 195, 232 (Silveria).) We view the evidence in
the light most favorable to the order denying suppression, as the
familiar rule governing appellate review requires. (People v. Ellis
(1993) 14 Cal.App.4th 1198, 1200.) We must draw all
presumptions in favor of the trial court’s ruling. Where there are
no express findings of fact, we imply whatever findings are
necessary to support the order. We must uphold express and
implied findings if substantial evidence supports them. (People v.
Fulkman (1991) 235 Cal.App.3d 555, 560.)
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. (Silveria, supra, 10
Cal.5th at p. 236.)
Citing People v. Kidd (2019) 36 Cal.App.5th 12, 21–22,
Flores contends the Terry stop began when the police shined a
flashlight on him. With our italics, the Kidd decision stated that,
“[w]ithout more, a law enforcement officer shining a spotlight on
a person does not constitute a detention.” (Id. at p. 21; cf. Terry v.
12
Ohio (1968) 392 U.S. 1, 16 [“whenever a police officer accosts an
individual and restrains his freedom to walk away, he has ‘seized’
that person”].)
The Terry stop began when the officer told Flores to stand
and put his hands behind his head.
The trial court ruled that, at that point, Flores’s suspicious
actions meant a Terry stop was proper.
The trial court’s ruling was sound.
Judge Escobedo expressly found three facts. First, Flores
saw police and tried to avoid contact with them by ducking down
behind a parked car.
Second, during Flores’s ducking and crouching, Flores was
“toying with his feet.” Flores did not freeze or remain still.
Rather than remain motionless, Flores continued doing
something with his hands. He persisted despite the approaching
light and radio noise, which obviously were from an officer from
the police car Flores had seen before ducking. Flores kept
moving his hands. Flores kept his hands out of the sight of the
approaching officer with the camera.
Third, as police that night approached in an obvious way
“with a huge light on him,” Flores persisted in his odd crouch
position for “far too long a period of time.”
Judge Escobedo concluded Flores’s conduct was “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.”
The combination of these facts did not establish Flores was
engaged in illegal drug activity, but the trial court was right that
together the facts justified this Terry stop.
13
Flores asks, how do you know if a person is pretending to
tie his shoe? The answer is you 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.
Certainly there are innocent possibilities. But, 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. (Wardlow,
supra, 528 U.S. at p. 124.) Courts must permit police to make
commonsense judgments and inferences about human behavior.
(Glover, supra, __ U.S. at p. __ [140 S.Ct. at p. 1188].)
DISPOSITION
The judgment is affirmed.
WILEY, J.
I concur:
GRIMES, Acting P. J.
14
STRATTON, J., Dissenting.
I dissent. After dark, in a high crime neighborhood, a
Hispanic man in a tank top ducked halfway behind his car after
he saw police, and then failed to rise immediately “like a normal
human being” and express his surprise at being approached and
put under a spotlight. Instead, he froze and straightened up only
when told to do so by the police. On these facts alone, he and his
vehicle were searched. That was unlawful because the officers
had no reasonable suspicion that a criminal act was afoot.1
The majority concludes that ducking, freezing, and not
rising fast enough under these circumstances gave those officers
reasonable suspicion to conduct a Terry stop. I cannot abide this
holding as it threatens to allow police detention based on
commonplace conduct subject to interpretation. The majority’s
overbroad view of what sort of conduct can be deemed suggestive
of wrongdoing ignores applicable law and the realities of twenty-
first century America. In the case of a person wary of police
interaction, the majority’s approach leaves virtually no room for
that person’s conduct to be deemed “normal” and hence not
suspicious.
First, let’s review the evidence. When the police notice
appellant, he is standing next to the driver’s side of a parked car.
The body cam video is very clear that the suspicious activity
described by the police was appellant moving from a standing
position in the street outside the driver’s side of his car to a
bending position between the sidewalk and the curb outside the
1 It goes without saying that everything discovered
after this unlawful detention should have been suppressed as the
fruit of the poisonous tree. (Wong Sun v. United States (1963)
371 U.S. 471.)
1
rear passenger side of the car. The two police officers approach in
a marked car. They believe appellant moved out of the street to
hide in reaction to their presence. The two officers drive up and
stop behind appellant’s car. When the officers shine their
spotlight on appellant, he is bent over at the waist with his
derriere high in the air (like a diver doing a jack knife). His arms
are stretched down to the ground and his hands are near his feet.
The video shows appellant is not completely “hidden” behind the
side of the car; instead, his body protrudes past the back end of
the car. Thus, his body is plainly visible from both behind the car
and next to it. According to the testifying officer, he was
“pretending to tie his shoe.”2
The trial court described the incident accurately and then
made its findings. It did not adopt the officer’s testimony that
appellant appeared to be hiding. Nor did it find appellant was
not tying his shoe, although at one point the trial court remarked
he appeared to be “toying” with it. (While the majority deems
“toying” part of the articulable facts in support of reasonable
suspicion, the trial court did not. The officer testified he saw
plainly what appellant was doing with his hands.) The trial court
found appellant was “try[ing] to avoid police contact because he
sees the police officers and he ducks.” The court implied that this
action was not that suspicious, saying, “Had he just gotten up
even if he was tying his shoe while they’re approaching him.”
What mattered to the trial court was that appellant froze in that
jackknife position when the officers shined their light on him, and
he remained motionless and silent until commanded to stand:
2 As an aside, how do you know if someone is “pretending” to
tie his shoe?
2
“He’s still ducked down, not moving, nothing is being said. The
officers say something as they’re approaching, and the person is
still hunched over. [¶] That’s odd. That’s odd behavior. That’s
not normal. That’s suspicious.” According to the trial court, “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?’ ” when the police approached, shining their light on
him. The fact that Flores did not move until the officers told him
to “was odd, and I think that that’s suspect,” said the trial court.
The trial court concluded, “It was far too long a period of time.
And he didn’t even get up until the officers said, ‘Hey, stand up.’
That was odd, and I think that that’s suspect.”
The trial court apparently found the detention occurred
after appellant delayed too long in rising to his full height. The
majority agrees with the trial court. I don’t.
When did the detention occur? 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 required
show of authority is measured by an objective test. (Ibid.) The
evidence we consider is limited to that presented at the
suppression hearing. (People v. Zamudio (2008) 43 Cal.4th 327,
342.)
Two cases appear to be right on point factually. In People
v. Garry (2007) 156 Cal.App.4th 1100, a detention occurred
because the officer shined his spotlight on the defendant, exited
his patrol vehicle, walked briskly towards the defendant, and
immediately asked about his parole or probation status. (Id. at
pp. 1111–1112.) In People v. Roth (1990) 219 Cal.App.3d 211, a
3
detention occurred because a deputy shined his spotlight on the
defendant, two deputies exited the patrol car, and one
commanded the defendant to approach. (Id. at p. 215.)
The circumstances here show that the interaction between
the officers and appellant ripened into a detention when the
officers positioned their marked patrol car a little askew to and
behind appellant’s car, shined a “huge” spotlight on him, and
converged on him, one approaching him from behind (where the
patrol car is parked) and the other approaching him on the
sidewalk from the other side, having walked around the front of
the car in the meantime. The car and an iron spiked fence
blocked the other directions. Appellant had no “escape route”
even if he wanted to walk away. At this point appellant was
detained.
Under these circumstances, a reasonable person,
surrounded and under a spotlight, would not feel free to leave.
This is especially so because all motorists are trained to acquiesce
immediately when police officers pull up behind them and turn
on their lights. Thus, I disagree with the holding of the trial
court and the majority that the detention occurred only later--
after appellant froze for too long.
At the point when appellant was detained under the
spotlight, all the officers knew was that he was standing next to a
car in a high crime neighborhood and had moved out of the street
to the other side of the car and bent over when they believed he
had seen their patrol car. These are not articulable facts
supporting reasonable suspicion. The trial court apparently
agreed as it started the detention clock at the point when
appellant delayed in standing up.
4
This brings me to the second issue with which I disagree
with the majority--the issue of reasonable suspicion. Let’s
assume the detention occurred at the point when appellant did
not immediately stand erect of his own accord. The testifying
officer could not articulate what criminal activity he suspected
appellant was engaged in. He just thought it was suspicious
when appellant moved from one side of the car to another and
then bent over. The court found it “odd” and therefore suspicious
that appellant did not move or speak when the spotlight came on
and did not rise until the officers commanded him to do so. To
the trial court, reasonable suspicion was created because
appellant bent over and, unlike “any normal human being,”
waited “too long” (an amorphous concept not quantified by the
witness or the court) to stand erect and remained silent.
I accept the trial court’s finding that appellant was trying
to avoid police contact by ducking. But, as we know, appellant
had an absolute right to avoid police contact. In Florida v. Royer
(1983) 460 U.S. 491, the Supreme Court reiterated that a person
can avoid police contact without arousing reasonable suspicion by
walking away, refusing to listen to, or declining to participate in
police questioning. A person may go about one’s business. (Id. at
pp. 497-498.) Under the trial court’s ruling and the majority
opinion, however, how does one avoid police contact without
creating reasonable suspicion justifying detention?
Courts have already decided that being alone at night in a
high crime neighborhood does not amount to reasonable
suspicion. Moreover, the facts upon which reasonable suspicion
can be based must be articulable and objective. (Brown v. Texas
(1979) 443 U.S. 47.) In other words, not subject to the subjective
perspective of the persons doing the interpreting. The majority’s
5
decision undercuts that rule and threatens to subject people to
Terry stops for commonplace conduct. By way of analogy, the
Court in Illinois v. Wardlow (2000) 528 U.S. 119 focused on
“headlong” flight as a permissible articulable fact in determining
reasonable suspicion. It chose “headlong” flight because
“unprovoked flight is the exact opposite of going about one’s
business.” (Id. at p. 121.) It created a standard that, by and
large, avoids deeming commonplace conduct suspicious. For
example, only in exceedingly rare cases could a person credibly
confuse a daylight neighborhood jog with headlong flight from
police.3
The majority’s approach that appellant froze and waited
“too long” to rise will apply to a wide array of conduct that cannot
provide an objective basis for reasonable suspicion. Appellant’s
reaction was neither abnormal nor suspicious. Indeed, some even
might instruct their children remaining still is a prudent course
of action (and even then, it may not work. #BlackLivesMatter.)
To hold otherwise ignores the deep-seated mistrust certain
communities feel toward police and how that mistrust manifests
in the behavior of people interacting with them.
Even outside of communities distrustful of police authority,
how safe is it anytime or anywhere to move suddenly when police
approach? Movement is incredibly dangerous for anyone because
if police deem it sudden, and hence threatening, someone may
end up shot. On top of that, we know for some populations, to
stand up from a bent position as the police approach would
effectively be suicidal, as it would likely be interpreted as a
3 I say credibly because recall the reasons given for shooting
to death daylight jogger Ahmaud Marquez Arbery.
6
threatening act. To find freezing and waiting “too long”
reasonably suspicious is irresponsible and dangerous to both law
enforcement and those with whom it interacts.
The majority says you can’t duck and freeze and then wait
too long to stand up. What’s left? The only option for a “normal”
human being, according to the majority, is to immediately stand
erect and politely inquire about the purpose of the stop, a
conversation we all have an absolute right not to start. In effect,
the majority compels those in a high crime area to “stand still” in
a way the police subjectively believe is not furtive so as not to
create reasonable suspicion that criminal activity is afoot.
Without objective criteria pointing to a reasonable suspicion of
criminal activity, “the risk of arbitrary and abusive police
practices exceeds tolerable limits.” (Brown v. Texas, supra,
443 U.S. at p. 52.) The majority opinion narrows the options for
those who want to be judged “normal” and hence beyond
suspicion. They must stand erect and chat up the officers who
approach them. Tell that to Eric Garner.
STRATTON, J.
7