Police in California have no authority to detain people simply for acting suspiciously and attempting to avoid police, the California Supreme Court has ruled.
In the unanimous decision, the Golden State's high court said police remain empowered to watch people engaged in suspicious behavior, and to potentially question or even search suspects, without running afoul of their Fourth Amendment rights.
"Nervous behavior and attempts to conceal oneself may provide relevant context," the justices wrote. "But before officers may detain someone they must be able to articulate a legally cognizable reason to infringe on that person’s liberty."
California Supreme Court Justice Carol A. Corrigan
| courts.ca.gov
In a separate concurring opinion, however, a majority of the court's justices edged further toward placing barriers on the ability of police officers to address potential crime when dealing with suspects "of color." A majority of justices noted they believed officers should take into account the race of the suspects they are seeking to detain, and allow for the desire of particularly "Black and brown" suspects to avoid encounters with police which they said could entail "a degree of risk to one's safety."
The justices joining in the special opinion said they believed officers may need to allow for suspects "of color" to perhaps outright flee from police without fear of being detained or arrested.
The special concurring opinion was authored by Justice Kelli Evans.
Evans' concurring opinion included a long list of black suspects who died during encounters with police in headlines-grabbing cases that were used as justification for protests, riots and other race-based civil unrest in 2020 and earlier, including Michael Brown in Missouri and George Floyd in Minnesota.
In her opinion, Evans said a history of "police killings of Black and Brown children, men, and women" can justify allowing black suspects to simply ignore police or even flee from officers entirely without risk.
"... Naïve or ill-informed notions of police interactions must not shape our Fourth Amendment jurisprudence and must not compromise Californians’ Fourth Amendment rights," Evans wrote. "It may be a reasonable response for an individual to reflexively 'freeze' or flee when being approached by officers.
"... Due to this searing history and the present day experiences of far too many people in the United States, for generations, legions of parents in minority communities have given their children 'the talk' — detailing survival techniques for how to navigate interactions with police 'all out of fear of how an officer with a gun will react to them,'" Evans wrote. "Given this context, it is apparent why attempting to avoid police officers reflects, for many people, simply a desire to avoid risking injury or death."
Evans was joined in this special opinion by a majority of the state Supreme Court, including justices Goodwin Liu, Leondra R. Kruger, Joshua P. Groban and Martin J. Jenkins. Only Corrigan and Chief Justice Patricia Guerrero declined to join in Evans' holdings concerning the potential ability of black suspects to flee from police without facing the risk of repercussion.
The case centered on the arrest of Marlon Flores by Los Angeles Police in May 2019. In that case, police officers allegedly encountered Flores while on patrol in an area of Mariposa Avenue, purportedly known as a high crime neighborhood in which illegal street drug transactions were commonplace.
According to court documents, as officers approached, Flores twice looked at officers and then ducked behind a vehicle. When officers approached on foot, Flores allegedly crouched down and took an unusually long amount of time in that position, supposedly tying his shoes.
The suspicious activity led police to detain Flores and search him and his vehicle, leading officers to discover a loaded handgun and methamphetamine.
Flores later pleaded no contest to a gun possession charge, in exchange for prosecutors dropping the drug charge.
Flores, however, later challenged the charges, asserting officers had violated his Fourth Amendment rights and had unlawfully detained him without suspicion of criminal activity.
Lower courts tossed those challenges, agreeing Flores' actions that night meant officers had acted reasonably and legally to detain and search him.
At the California Supreme Court, however, the unanimous court said police and lower courts all got it wrong. Regardless of Flores' actions to that point, police lacked the ability to detain him.
They could question him, but nothing more, justices said, unless they saw him engaged in illegal activity or Flores had done something more to show he was a threat or otherwise engaged in illegal activity.
Justices said Flores' case stands apart from others in which police detention and searches were upheld, as Flores did not attempt to flee or obstruct officers' observations, nor had he yet committed any criminal act while in view of officers.
The majority opinion added police officers remain empowered to watch potential suspects, and to take into account various ways in which they may seek to avoid police interaction when deciding whether to seek to detain or search them.
Such "relevant behavior," the court said, can include "expressions of shock upon seeing an officer, ducking and hiding, headlong flight, a sudden change in direction, walking quickly away while looking back at the officer, and failing to acknowledge the officer’s attempt to engage the suspect."
But they said merely seeking to avoid or ignore police, even in a high crime area, is not enough to justify a detention.
"Flores’s disinclination to engage with the officers does not carry the same salience as headlong flight in the totality of the circumstances analysis. 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," Corrigan wrote in the majority opinion. "But they are not the 'consummate act of evasion.' 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."
But while the majority opinion goes to lengths to assure that officers remain empowered to surveil, question and even search suspects, the court's majority signing on to Evans' special concurring opinion asserts, without saying directly, that black suspects, in particular, should be granted special dispensation to avoid interacting with police.
Evans called on the state high court and other courts to go further and perhaps develop explicit legal tests "accounting for the impact of racial disparities in policing" when evaluating whether police investigations and arrests are constitutional.
The majority opinion "does not rely on such considerations, but neither does it foreclose future litigants from developing arguments about how racial disparities in policing might inform one's decision to avoid contact with the police," Evans wrote, joined by a majority of her fellow justices. "While the evaluation of whether an individual's behavior supports a finding of reasonable suspicion is an objective one, a test that fails to account for the realities of so many Californians would not be a reasonable one."
Flores was represented in the proceedings by attorney Richard L. Fitzer, of Long Beach, under appointment by the California Supreme Court.
The state of California was represented by California Attorney General Rob Bonta. The case was argued by Deputy Attorney General Shezad H. Thakor, and other deputy and assistant attorneys general.