Court upholds Terry stop and frisk, prompting strong dissent

The 2nd District Court of Appeal recently upheld defendant Marlon Flores' conviction for carrying a loaded, unregistered handgun in violation of California Penal Code Section 25850(a). People v. Flores, 2021 DJDAR 3776 (April 26, 2021).

Flores entered a no contest plea to the charge, but appealed the trial court's denial of his motion to suppress. At issue on appeal was the application of the stop and risk doctrine announced by the U.S. Supreme Court in Terry v. Ohio. Under Terry, police patrolling a "high-crime area," have reasonable suspicion sufficient to justify a stop when they observe a suspect see the police and run. Stopping the runner for questioning, and a pat down, is the classic "Terry stop." This doctrine has always been in tension with the constitutional right to decline a voluntary encounter with police and to go about one's business without speaking to, or even acknowledging, the police's efforts to engage in a conversation. As the Supreme Court has held, "headlong flight" from the police is sufficiently indicative of criminal behavior that running alone justifies overriding the suspect's right to be free from police interference.

Flores was observed around 10:00 p.m. in what the police knew to be a high-crime area. They patrolled the street in question on a daily basis because it was known for narcotics activity. The area was also known as a gang hangout. As the officers turned onto a cul-de-sac, they saw Flores standing behind a parked car. As the officers would later testify, when Flores saw the police he moved to the passenger side rear area of the car and ducked down, apparently trying to conceal himself. An officer approached Flores on foot while shining a flashlight on him. Flores continued to crouch down for about 20 seconds without responding to the police's advance of the flashlight being shined on him. The police believed he was pretending to tie his shoe.

Based on what they interpreted as his suspicious behavior, the police ordered Flores to stand and put his hands on his head. They handcuffed Flores and patted him down, finding a key for the vehicle Flores had been crouching next to. One officer observed a methamphetamine bong through the car window. Flores acknowledged the car was his. When asked for identification, Flores directed the officers to his wallet which was inside the car and gave consent to obtain it. Inside his wallet, officers found methamphetamine. A search of the car incident to arrest yielded the loaded handgun.

At the suppression hearing, defense counsel argued that ducking down behind the car, by itself, was not enough to provide reasonable suspicion for a Terry stop. The prosecution argued that Flores staying in the crouched position even as the police approached with flashlights on was unusual enough that the officers reasonable believed Flores was trying to evade them, rather than tie his shoe. The trial court admitted that it was a close call in its estimation, stating that had Flores simply remained standing and done nothing as the officers approached, there would have been no reasonable suspicion. Ultimately, however, the court denied the motion to suppress based on its conclusion that Flores was not, in fact, tying his shoe and that his failure to stand up or acknowledge the police in any way as they approached was suspicious.

The appellate panel's endorsement of the trial court's denial of the motion to suppress drew a strongly-worded dissent from the panel's third member, Judge Stratton. The dissent criticized what it saw as the majority's "overbroad view of what sort of conduct can be deemed suggestive of wrongdoing," which in its opinion "ignores applicable law and the realities of twenty-first century America." The dissent claimed that the majority's view would leave an individual undesirous of a police interaction with almost no options.

As a legal matter, the dissent disagreed that Flores was detained for purposes of the Terry analysis when he was ordered to rise by the police. The dissent would mark the beginning of the detention earlier -- when the police parked their car and shined their flashlights on Flores. At that point, all the officers knew was that Flores was standing next to a car in a high-crime area and had bent down. Because the dissent pegged the beginning of the detention to the first moment the lights were turned on Flores, the subsequent conduct -- not rising for an extended period of time, not responding in any way to the officers' approach, etc. -- were not relevant to the reasonable suspicion analysis.

Even accepting the majority's view that the detention began when Flores failed to rise quickly enough, the dissent still would not have found reasonable suspicion. The dissent found it neither odd nor suspicious that someone would choose to avoid a police interaction, even by crouching behind a car. Invoking current political debates about policing, the dissent argued that "some even might instruct their children remaining still is a prudent course of action (and even then, it may not work #BlackLivesMatter.)" It characterized the majority's view as ignoring "deep-seated mistrust certain communities feel toward police and how that mistrust manifests in the behavior of people interacting with them." In sum, the dissent's view is that the majority leaves open only one possibility to citizens: "to immediately stand erect and politely inquire about the purpose of the stop, a conversation we all have an absolute right not to start."

Flores is a disappointing result for the defense bar, who might have reasonably concluded that a suspect who simply ducks and fails to rise in response to police contact has not done anything suspicious, let alone suspicious enough to trigger a warrantless pat down search. It remains to be seen whether Flores will be cited in the future to justify further Terry stops where the defendant's conduct, short of headlong flight from the police, is arguably indicative of a desire to evade police contact. 