California Appellate Court Upholds Terry Stop and Frisk Prompting Strongly-Worded Dissent

The case of People v. Flores (Appellate Case No. B305359). The Second Appellate District of the California Court of Appeal upheld defendant Marlon Flores' conviction for violating California Penal Code 25850(a) PC carrying a loaded weapon, and an unregistered handgun. 

He entered in court a “no contest” plea to the charge, but then filed an appeal because the trial court denied his motion to suppress.

The primary issue on appeal was the application of the stop and risk doctrine described in Terry v. Ohio. 

Under Terry, law enforcement who are patrolling a high crime neighborhood has reasonable suspicion to justify a stop when they observe a suspect see them and then flee the scene.

Stopping any suspect who runs for questioning, and a pat-down is the traditional “Terry stop.” 

This doctrine has frequently collided with the constitutional right to decline a voluntary encounter with law enforcement officers and to move on with your affairs without having to speak, or acknowledge, a police officer's attempt to start a conservation.

The Supreme Court has held that “headlong flight” from the police is sufficiently indicative of illegal conduct that running alone justifies overriding a suspect's right to be free from police interference.

Details of the Flores Case

Flores was observed by police around 10:00 p.m. what was widely known as a high crime area.

Police routinely patrolled this street daily because they knew from experience there was a lot of narcotics activity, and the area was also known as a gang hangout. 

When police turned onto a cul-de-sac, they observed him standing behind a parked car.  The police officers would later testify that once Flores saw them, he suddenly moved to the other of the car and ducked down, which was an apparent attempt to hide from them.

One of the police officers approached him while shining his flashlight in his direction. He remained crouched down for about 20 seconds without a response to the officer's advance of the flashlight being shined on him. The police said it appeared he was pretending to tie his shoes.

Police believed he was exhibiting suspicious behavior and ordered Flores to stand and put his hands on his head.  Next, for their safety, they handcuffed him and patted him down.

Further, police found a key for the car he was crouching next to.  They were also able to observe in plain view a methamphetamine bong through the car window. 

Upon questioning, Flores did acknowledge he owned the car. Police then requested his identification and were directed to his wallet that was inside the car and gave consent to obtain it. 

Once police were inside his wallet for ID, they found some methamphetamine.  A subsequent search of the car incident to arrest found a loaded handgun.

Motion to Suppress Evidence Hearing

At the suppression hearing, his criminal defense lawyer made an argument that ducking down behind the car, by itself, was not sufficient reasonable suspicion for a Terry stop. 

The prosecution then made an argument that Flores staying in the crouched position, even while police approached him with flashlights, was sufficiently unusual enough that police had a reasonable belief he was attempting to evade them, rather than to tie his shoes.

The trial court acknowledged it was a close call in its opinion, stating that if he had just remained standing without taking any action as the officers came near, that there would have not been any reasonable suspicion. 

In the end, however, the court denied his motion to suppress because they determined that Flores was not, in fact, tying his shoe and that his failure to stand up or even acknowledge the police were there and approaching him was suspicious.

Appeals Court Dissenting Member

The appellate panel's confirmation of the trial court's denial of the motion to suppress sparked a strong dissent from the panel's third member, Judge Stratton. 

His dissent criticized what he viewed as the majority's:

• “overbroad view of what sort of conduct can be deemed suggestive of wrongdoing which ignores applicable law and the realities of twenty-first-century America.”

His opinion claimed that the majority's view would leave an individual undesirous of police interaction with just about no options.

Legally, the dissent was a disagreement that Flores was detained for purposes of the Terry analysis when he was ordered to stand up by police officers.

The dissent would mark the start of the detention earlier when police parked their car and shined their flashlights on him.

At that point, the police officers only knew that Flores was standing beside a vehicle in a high crime area and he crouched down. 

Because the dissent focused on the beginning of the detention to the first moment the lights were turned on him, the subsequent behavior of not standing up for a significant period, not responding to the officers' approach, etc., were not relevant to the reasonable suspicion analysis.

Reasonable Suspicion

If we accept the majority's view that the detention began when he didn't rise quickly enough, the dissenting opinion still would not have found reasonable suspicion. 

The dissent found it neither odd nor suspicious that somebody would decide to avoid interacting with police officers, even by crouching down behind a car to hide.

Invoking current political debates regarding policing, the dissent made an argument that “some even might instruct their children remaining still is a prudent course of action (and even then, it may not work #BlackLivesMatter.)”

Further, it characterized the majority's opinion view as ignoring the “deep-seated mistrust certain communities feel toward police and how that mistrust manifests in the behavior of people interacting with them.”

In summary, the dissent's opinion is that the majority left open only one possibility to citizens which 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.”

The Flores case is a disappointing result for defense counsel who might have made a reasonable conclusion that a suspect who simply ducks and fails to stand up in responding to a police contact has not done anything suspicious, let alone sufficient enough to justify a warrantless pat-down search. 

It remains to be seen whether the Flores case will be cited in a future case to justify more Terry stops where a defendant's conduct, short of immediate fleeing from police officers, is arguably indicative of an intent to evade police contact. 

Eisner Gorin LLP is a top-rated criminal defense law firm based in Los Angeles County, California. You can reach our firm for an initial case review at (877) 781-1570.