CA: Avoiding the police in a high crime area isn’t RS

Defendant’s avoiding the police and not wanting to interact with them did not rise to reasonable suspicion, even in a high crime area. The officers before the trial court didn’t articulate enough to show there was reasonable suspicion here. People v. Flores, 2024 Cal. LEXIS 2293 (May 2, 2024):

The record, considered in its totality, fails to support a reasonable suspicion that Flores was loitering for the purpose of committing a narcotics offense (as the officer suspected) or was otherwise engaged in “ ‘criminal activity.’ ” (Glover, supra, 589 U.S. at p. 380.) An articulable and reasonable suspicion that a person is engaging in criminal activity is required to escalate a consensual encounter to a coercive detention.

Here, Flores looked in the direction of the officers then walked behind a car and ducked out of sight. As the officers parked, Flores raised his head, stood and stretched, then again disappeared from sight. A few seconds later he raised his head a second time, and then dropped back out of view. When the officers approached on foot, he remained bent over “toying with his feet.” He did not make eye contact or otherwise acknowledge their attempts to engage him. It is not out of the ordinary for a person to engage in a pretext such as walking in another direction, pretending not to hear one’s name being called, or feigning cell phone use to avoid an unwanted encounter. But here, Flores’s apparent pretext of tying his shoe, combined with his repeatedly ducking down behind the car, could reasonably be construed as “odd” and noteworthy behavior, particularly when done in reaction to the sight of a uniformed police officer. (See Wesby, supra, 583 U.S. at p. 59; Wardlow, supra, 528 U.S. at p. 124; Souza, supra, 9 Cal.4th at p. 234.) Nonetheless, it bears emphasis that the standard to justify a detention is not satisfied simply because a person’s behavior is “odd.” A mere deviation from perceived social convention does not automatically signal criminal behavior. The particular conduct relied upon must, when considered in the totality of circumstances, support a reasonable suspicion that the person to be detained is, or is about to be, engaged in activity “relating to crime.” (Tony C., supra, 21 Cal.3d at p. 893; accord, Souza,
supra, 9 Cal.4th at p. 231.)

The fact that Flores was present in a “known narcotics] area[],” where the officer had arrested someone for drug-related crimes the night before, does not tip the scales in favor of detention. Notably, Officer Guy did not see Flores engage in any conduct suggesting he was there to buy or sell drugs or was otherwise involved in illegal conduct. He did not see Flores interact with anyone, or retrieve or hide anything. … He did not see anyone in the immediate vicinity. No one had called for help or to report a crime in progress. The hour was not particularly late. Although the officer testified that he suspected Flores of “loitering,” he did not see Flores standing in that location for more than a few moments before the officers pulled up in their patrol car. When Guy approached on foot, he saw Flores moving his hands near his feet. But the officer did not say Flores appeared to hide or discard anything. Rather, he opined that Flores was “pretend[ing] to tie his shoe.” Guy testified that the Nissan was parked at a red curb. But he did not explain how Flores’s presence next to an illegally parked car justified a detention under the totality of the circumstances.

In referring to factors not testified to in this case, we do not suggest that any of them must be established to justify a detention. Instead, we point out that, if present, they would be relevant in weighing all the circumstances bearing on whether a detention was justified. Likewise, facts that may appear benign in some contexts may reasonably be considered less so in others. Officers describing their decisions may certainly explain the salience of some circumstances in light of their training and experience. As the high court pointed out in Cortez, supra, 449 U.S. at page 418, a trained police officer could draw inferences “that might well elude an untrained person.” But the officer must articulate that experience and expertise as an objective circumstance justifying the detention. … In evaluating what was done it is important to consider the reasons given for doing it. Requiring this articulation enables the court to determine, as a matter of law, whether the officer’s actions were justified in light of the protections afforded by the Fourth Amendment.

Flores’s disinclination to engage with the officers does not carry the same salience as headlong flight in the totality of the circumstances analysis. [Wardlow] His acts of ducking out of sight, bending with his hands by his shoe, and not acknowledging the officers’ presence, suggest an unwillingness to be observed or interact. But they are not the “consummate act of evasion.” (Wardlow, supra, 528 U.S. at p. 124.) The officers certainly could have continued to observe Flores as he stood on the public street. But the behavior here, while noteworthy, does not support a reasonable suspicion that he was engaged in illegal activity. In short, Officer Guy failed to articulate “more than an ‘inchoate and unparticularized suspicion or “hunch” ’ of criminal activity.” (Wardlow, at p. 124, quoting Terry, supra, 392 U.S. at p. 27.)

Update: Newsmax: Calif. High Court Ruling Undermines Police, Endangers Communities by Michael Letts (“In a decision that could seriously impair police effectiveness, a recent ruling by the California Supreme Court holds that individuals cannot be detained merely for avoiding police interaction. To appreciate the gravity of this ruling, we need to dive into its origins and the principles at stake.”)