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

He initially entered a no-contest plea to the charge but appealed the court's denial of his motion to suppress.  The primary issue on appeal was the application of the stop and risk doctrine in the case Terry v. Ohio. 

Under Terry, police who are patrolling a high crime area has reasonable suspicion to justify a stop when they notice a suspect observing them and then take off running.

Thus, the stopping of a “runner” for questioning and a pat down is the classic definition of a “Terry stop.”  This doctrine has always been in direct conflict with someone's constitutional right to decline a voluntary encounter with police without speaking to them or acknowledging their efforts to engage in a conversation. 

The United States Supreme Court has determined that flight from the police sufficiently indicates criminal behavior. Therefore, running alone justifies overriding the suspect's right to be free from police interference.

What Are the Details of the Case?

Police saw Flores at about 10 pm in what the police knew to be a high crime area.  They routinely patrolled this area as it was well-known for drug activity and to be a gang member hangout.

When police officers turned onto a cul-de-sac, they saw Flores standing behind a parked car.  When he saw the police, he moved to the passenger side rear area of the car and ducked down in an apparent attempt to hide.

So, police exited their vehicle and approached him on foot while shining a flashlight on him.  Still, Flores continued to crouch for almost 30 seconds without responding to their advance on him with a flashlight shined on him. 

The police said he was pretending to tie his shoe. Since his behavior was suspicious, they ordered Flores to stand and put his hands on his head. 

Police handcuffed and patted him down when they found a key to the vehicle he had been hiding next to.  One of the officers then saw in plain view a methamphetamine bong through the car window. 

Flores admitted the car was his.  When police asked for identification, he directed them to his wallet inside the vehicle and gave consent to get it.

Once police went Inside his wallet, they found methamphetamine—a subsequent search of the car incident to arrest uncovered a loaded handgun.

Motion to Suppress by Defense Counsel     

At the motion to suppress hearing, his criminal defense lawyer argued that ducking down behind the car was not enough to provide reasonable suspicion for a Terry stop. 

In rebuttal, the prosecutor argued that Flores remaining in the crouched position when police approached with flashlights was unusual enough for the officers to have a reasonable belief he was trying to evade them rather than tie his shoe.

The trial court did admit it was a close call, saying that if Flores remained standing and did nothing when officers approached, there would be no reasonable suspicion. 

In the end, the court denied the motion to suppress based on its decision that he was not tying his shoe and that his failure even to acknowledge the police in any manner as they approached was suspicious.

What Was the Dissenting Opinion?

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

She criticized what she saw as the majority's “overbroad view of what sort of conduct can be deemed suggestive of wrongdoing,” which, in its opinion, ignores applicable laws of the twenty-first century. The dissent claimed that the majority's view leaves someone undesirous of police interaction with almost no options.

As a legal matter, the dissent disagreed that he 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 him. At that point, all police knew was that Flores was standing next to a car in a high crime area and bent down. 

Because the dissent deemed the beginning of the detention to the first moment the lights were turned on him, the subsequent conduct of not rising for an extended period, not responding to the officers' approach, etc., were irrelevant 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 any reasonable suspicion. The dissent did not find it odd or suspicious that somebody would choose to avoid a police interaction, even by crouching behind a vehicle. 

The dissent's view is that the majority leaves only one possibility to citizens: to immediately stand erect and politely inquire about why they are being stopped for a conversation the police have to right to start.

Pending Issue of Reasonable Suspicion

Flores is a disappointing result for criminal defense lawyers, who may have reasonably concluded that a suspect who just ducks and fails to rise in response to police has not done anything suspicious and certainly not cynical enough to trigger a warrantless pat-down search.

It remains to be seen whether this case will be cited to justify further Terry stops where the defendant's conduct, short of flight from the police, arguably indicates a desire to evade police contact. The criminal defense law firm of Eisner Gorin LLP is based in Los Angeles, California. You can contact us by phone or through the contact form.

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