People v. Flores

IN THE SUPREME COURT OF

CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARLON FLORES,

Defendant and Appellant.

S267522

Second Appellate District, Division Eight

B305359

Los Angeles County Superior Court

BA477784

May 2, 2024

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Liu, Kruger, Groban,

Jenkins, and Evans concurred.

Justice Evans filed a concurring opinion, in which Justices Liu,

Kruger, Groban, and Jenkins concurred.

PEOPLE v. FLORES

S267522

Opinion of the Court by Corrigan, J.

Police officers detained defendant, Marlon Flores, on a

dark evening in an area known for narcotics and gang activity.

The Court of Appeal held the totality of circumstances described

below provided reasonable suspicion for the detention. We

reverse.

I. BACKGROUND

The following facts were adduced at the suppression

hearing, at which Los Angeles Police Officer Daniel Guy was the

only witness. In May 2019, around 10:00 p.m., Officer Guy and

his partner, Michael Marino, were on patrol in the area of

Mariposa Avenue. Guy considered the location to be a “known

narcotic[s] area[]” and “gang hangout.” He had arrested

someone in the vicinity the night before for narcotics crimes. As

the officers drove by a cul-de-sac, they saw Flores standing alone

in the street beside a Nissan parked at a red curb. Flores looked

at the officers, walked around the back of the car, then “ducked”

behind it. The officers pulled up and parked behind the Nissan.

Officer Marino’s body camera captured the interaction

between Flores and the officers. The video begins as the officers

park the patrol car but remain inside. At 0:15 seconds, Flores’s

head comes into view from behind the Nissan. He is in

darkness. Flores stands and seems to be making a stretching

motion with one arm. At 0:37 seconds, he disappears from sight.

A few seconds later, he raises his head, then drops back out of

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Opinion of the Court by Corrigan, J.

view. At 0:50 seconds, the officers step out of the car and

approach him. A flashlight illuminates the way. At 0:55

seconds, Flores appears on the camera’s recording. He is bent

over and facing away from the officers with both hands near his

right shoe. When Marino trains his flashlight on Flores, Flores

does not look around. He remains bent over and continues

moving his hands near his feet. The officers make no inquiry,

but at 1:03, one of them tells Flores to stand up. Flores remains

bent over. When Marino walks up behind Flores, Guy comes

around the Nissan and approaches from the other side. At 1:12,

Marino again directs Flores to stand. At 1:14, the officer says,

“Hey, hurry up,” and Flores begins to straighten. At 1:16, an

officer tells Flores, “Your hands behind your head.” Flores

complies and is directly placed in handcuffs.

Officer Guy testified that he detained Flores because he

believed Flores acted “suspicious[ly]” by “attempting to conceal

himself from the police” and then “pretend[ing] to tie his shoe.”

The officer suspected Flores was “loitering for the use or sales of

narcotics.” Guy gave no reason why he thought so, other than

the area and Flores’s behavior upon seeing the police. During a

pat-down search, the Nissan’s “blinkers activated” as if the

officer had “hit the key fob.” Officer Guy pointed his flashlight

into the car and saw what looked like a drug pipe. In response

to the officer’s inquiries, Flores said that the Nissan was his and

his wallet, and identification, were in the driver’s side door

pocket. Guy retrieved the wallet, looked inside, and found a

folded dollar bill containing suspected methamphetamine.

Officers also recovered a revolver from a backpack.

The trial court denied Flores’s motion to suppress the

evidence seized. The court reasoned that Flores’s acts of

“ducking,” “remaining hunched over,” and “toying with his feet,”

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Opinion of the Court by Corrigan, J.

even after the officers approached and told him to stand, was

“odd behavior” and “suspicious.” The court observed that “any

normal human being would stand up and say, ‘Oh, you scared

me’ or ‘Oh, what can I help you with?’ or ‘Oh, why are you coming

towards me?’ ” It found Flores’s behavior “more than enough for

this Court to find that there were articulable facts to find

suspicion and enough for the officers to detain him, enough for

the officers to thereafter question about identification.”

Flores pleaded no contest to one count of carrying a loaded

firearm. (Pen. Code, § 25850, subd. (a).) In exchange, one count

of armed possession of methamphetamine was dismissed.

(Health & Saf. Code, § 11370.1, subd. (a).) Pursuant to the

terms of the bargain, he was ordered to serve three years’

probation. Conditions included five days in county jail, 90 days

in residential drug treatment, and 90 days of outpatient

treatment.

The Court of Appeal affirmed the judgment in a divided

opinion. The majority concluded that Flores was not detained

until he was ordered to stand and put his hands behind his head.

(People v. Flores (2021) 60 Cal.App.5th 978, 989 (Flores).) It

found reasonable suspicion justified the detention based on the

following facts: (1) “Flores saw police and tried to avoid contact

with them by ducking down behind a parked car”; (2) during the

ducking and crouching, Flores continually moved his hands,

keeping them out of sight of the police; (3) as they approached,

Flores “persisted in his odd crouch position for ‘far too long a

period of time’ ”; and (4) the activity occurred at 10:00 p.m. “on

a cul-de-sac known for its illegal drug and gang activity.” (Id. at

pp. 989, 986.) As for whether Flores was simply engaged in the

act of tying his shoe, the majority observed that “innocent

possibilities” exist, but an officer “would have valid suspicions if

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Opinion of the Court by Corrigan, J.

the person picked an unlikely moment for the task — in the

dark, just after seeing police, and just after ducking once

already — and if the person took an unusually long time at it.

The trial court found Flores kept crouching for a suspiciously

long time. Common sense takes context into account.” (Id. at p.

990; see also In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.).)

Justice Stratton opined in dissent that the detention

began when officers parked their car, shined a light on Flores,

and approached him from two sides. (Flores, supra, 60

Cal.App.5th at p. 992 (dis. opn. of Stratton, J.).) But even if the

detention occurred later, after Flores’s prolonged crouching, she

was unpersuaded that reasonable suspicion was established.

Justice Stratton accepted the trial court’s factual finding that

Flores ducked to avoid police contact, but she noted that he had

a right to do so. (Id. at p. 993, citing Florida v. Royer (1983) 460

U.S. 491, 497–498 (plur. opn. of White, J.) (Royer).) In her view,

Flores’s behavior was “neither abnormal nor suspicious” given

the “deep-seated mistrust certain communities feel toward

police and how that mistrust manifests in the behavior of people

interacting with them.” (Flores, at pp. 993, 994.)

We granted review to determine whether Flores’s

detention was justified on these facts.

II. DISCUSSION

“[T]he Fourth Amendment permits an officer to initiate a

brief investigative . . . stop when [the officer] has ‘a

particularized and objective basis for suspecting the particular

person stopped of criminal activity.’ [Citations.] ‘Although a

mere “hunch” does not create reasonable suspicion, the level of

suspicion the standard requires is considerably less than proof

of wrongdoing by a preponderance of the evidence, and obviously

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Opinion of the Court by Corrigan, J.

less than is necessary for probable cause.’ [Citations.] [¶]

Because it is a ‘less demanding’ standard, ‘reasonable suspicion

can be established with information that is different in quantity

or content than that required to establish probable cause.’

[Citation.] The standard ‘depends on the factual and practical

considerations of everyday life on which reasonable and prudent

men, not legal technicians, act.’ [Citation.] Courts ‘cannot

reasonably demand scientific certainty . . . where none exists.’

[Citation.] Rather, they must permit officers to make

‘commonsense judgments and inferences about human

behavior.’ ” (Kansas v. Glover (2020) 589 U.S. 376, 380–381

(Glover), italics omitted.)

In Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United

States Supreme Court first recognized the validity of a brief

investigative detention, short of arrest, based on reasonable

suspicion of criminal activity. (Id. at pp. 21–22, 27, 30.) It

distinguished that requirement from the more demanding

standard of probable cause necessary to justify an arrest. A

review of Terry and its role in the evolution of Fourth

Amendment jurisprudence provides illuminating context and

perspective. It demonstrates the serious consideration given to

judicial review of police investigative conduct over more than 50

years.

In Terry a plainclothes detective was on foot patrol in

downtown Cleveland, watching particularly for the presence of

shoplifters and pickpockets. At 2:30 in the afternoon he noticed

two men he had not seen before standing on a corner. The

detective did not approach the pair, but simply observed them

for 10 to 12 minutes. During that time the detective saw the

men stand on the corner. Then each separately walked down

the street, paused to look in a particular shop window, walked

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Opinion of the Court by Corrigan, J.

for a short distance past the shop, then retraced his steps,

paused again at the same window, and rejoined his companion

back on the corner, where they conferred. Each man separately

engaged in that process five or six times. (Terry, supra, 392 U.S.

at pp. 5–6.) After what the Court described as the “elaborately

casual and oft-repeated reconnaissance of the store window” (id.

at p. 6), the men left the corner together.

The detective decided to investigate further because he

suspected the two men were “ ‘casing a job, a stick-up.’ ” (Terry,

supra, 392 U.S. at p. 6.) He also suspected they might be armed.

The men stopped in front of another store nearby and met with

a third man. The detective had seen them talk briefly with the

third man when the pair was at the original corner from which

they had conducted their “oft-repeated reconnaissance.” (Ibid.)

The detective had no more information beyond what he had

observed. He approached the three men, identified himself as

an officer, and asked for their names. (Id. at pp. 6–7.) After

they “ ‘mumbled something’ ” (id. at p. 7), the detective grabbed

Terry, patted him down for weapons, and ultimately removed a

revolver from his interior coat pocket. A second gun was found

in his companion’s overcoat. (Ibid.)

Chief Justice Warren wrote the opinion of the court. He

began its discussion by quoting Union Pacific Railroad Co. v.

Botsford (1891) 141 U.S. 250, which observed: “ ‘No right is held

more sacred, or is more carefully guarded, by the common law,

than the right of every individual to the possession and control

of his own person, free from all restraint or interference of

others, unless by clear and unquestionable authority of law.’ ”

(Terry, supra, 392 U.S. at p. 9, quoting Union Pacific Railroad

Co., at p. 251.)

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Opinion of the Court by Corrigan, J.

The Chief Justice went on to note: “We would be less than

candid if we did not acknowledge that this question [whether

the detective’s actions violated the Fourth Amendment] thrusts

to the fore difficult and troublesome issues regarding a sensitive

area of police activity — issues which have never before been

squarely presented to this Court. Reflective of the tensions

involved are the practical and constitutional arguments . . . on

both sides of the public debate over the power of the police to

‘stop and frisk’ . . . suspicious persons.” (Terry, supra, 392 U.S.

at pp. 9–10.)

The opinion forcefully rejected the contention that a stop-

and-frisk detention is a “ ‘petty indignity.’ ” (Terry, supra, 392

U.S. at p. 17.) “It is a serious intrusion upon the sanctity of the

person, which may inflict great indignity and arouse strong

resentment, and it is not to be undertaken lightly.” (Ibid.) The

opinion considered the argument that permitting a temporary

detention like that involved in Terry would “only serve to

exacerbate police-community tensions in the crowded centers of

our Nation’s cities.” (Id. at p. 12.) It acknowledged that the

“degree of community resentment aroused by particular

practices is clearly relevant to an assessment of the quality of

the intrusion upon reasonable expectations of personal security

caused by those practices.” (Id. at p. 17, fn. 14.) The Terry

majority concluded that the officer had reasonable suspicion to

suspect the two men were engaged in criminal activity and to

fear for his safety. (Id. at pp. 22–23, 27–28, 30.) As a result the

“ ‘stop and frisk’ ” (id. at p. 10) was permitted, and the weapons

recovered were admissible in the underlying criminal

proceeding (id. at pp. 8, 30).

In the years since Terry was decided, courts around the

country have repeatedly addressed and applied its standards for

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considering Fourth Amendment challenges to evidence

recovered during investigative detentions. We do the same here.

“ ‘In reviewing a trial court’s ruling on a motion to

suppress evidence, we defer to that court’s factual findings,

express or implied, if they are supported by substantial

evidence. [Citation.] We exercise our independent judgment in

determining whether, on the facts presented, the search or

seizure was reasonable under the Fourth Amendment.’ ”

(People v. Silveria and Travis (2020) 10 Cal.5th 195, 232.) In

doing so we do not consider each fact in isolation. Instead, “we

must consider ‘the totality of the circumstances — the whole

picture.’ ” (United States v. Sokolow (1989) 490 U.S. 1, 8

(Sokolow), quoting United States v. Cortez (1981) 449 U.S. 411,

417 (Cortez).)

We need not determine the precise moment this detention

took place. There is no dispute that Flores was detained before

any incriminating evidence was recovered. One fair

interpretation of the facts is that Flores initially tried to avoid

being seen by the officers. Thereafter, and somewhat

inconsistently, he stood and was in view for several seconds. He

then failed to acknowledge the officers’ approach, and sought to

avoid interacting with them. But as we explain, this behavior,

along with Flores’s presence in a high crime area at night, did

not provide a particularized and objective basis for suspecting

that Flores was doing something illegal.

It is settled that a person may decline to engage in a

consensual encounter with police. “The person approached . . .

need not answer any question put to him; indeed, he may decline

to listen to the questions at all and may go on his way.” (Royer,

supra, 460 U.S. at pp. 497–498 (plur. opn. of White, J.); accord,

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Illinois v. Wardlow (2000) 528 U.S. 119, 125 (Wardlow).) Such

“refusal to cooperate, without more, does not furnish the

minimal level of objective justification needed for a detention or

seizure.” (Florida v. Bostick (1991) 501 U.S. 429, 437 (Bostick);

accord, Wardlow, at p. 125.) The reason that a truly consensual

encounter does not implicate the Fourth Amendment is that the

officer is simply approaching a person in a public place and

engaging in “ ‘personal intercourse.’ ” (Bostick, at p. 434,

quoting Terry, supra, 392 U.S. at p. 19, fn. 16; accord, Royer, at

p. 497 (plur. opn. of White, J.).)1 Officers, like others, may do so.

But the officer must have legal cause to command the civilian’s

attention and cooperation. (Royer, at p. 498 (plur. opn. of

White, J.).)

Nonetheless, “the manner in which a person avoids police

contact” may be “considered by police officers in the field or by

courts assessing reasonable cause for” a detention. (People v.

Souza (1994) 9 Cal.4th 224, 234 (Souza).) The relevant inquiry

is the “ ‘degree of suspicion that attaches to particular types of

noncriminal acts.’ ” (Sokolow, supra, 490 U.S. at p. 10, quoting

Illinois v. Gates (1983) 462 U.S. 213, 243–244, fn. 13.)

In particular, the Supreme Court has “recognized that

nervous, evasive behavior is a pertinent factor in determining

1

As Terry noted: “Street encounters between citizens and

police officers are incredibly rich in diversity. They range from

wholly friendly exchanges of pleasantries or mutually useful

information to hostile confrontations of armed men involving

arrests, or injuries, or loss of life. Moreover, hostile

confrontations are not all of a piece. Some of them begin in a

friendly enough manner, only to take a different turn upon the

injection of some unexpected element into the conversation.”

(Terry, supra, 392 U.S. at p. 13.)

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reasonable suspicion.” (Wardlow, supra, 528 U.S. at p. 124.)

Examples of relevant behavior 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. (See, e.g., District of Columbia

v. Wesby (2018) 583 U.S. 48, 59 (Wesby); Wardlow, at p. 124;

United States v. Brignoni-Ponce (1975) 422 U.S. 873, 885

(Brignoni-Ponce); Souza, supra, 9 Cal.4th at pp. 234–235, 241–

242; People v. Garcia (1981) 121 Cal.App.3d 239, 243, 245–246;

Flores v. Superior Court (1971) 17 Cal.App.3d 219, 221, 224.)

Repeated or inordinate attempts to avoid an officer may be

particularly noteworthy.

“[P]resence in an area of expected criminal activity” is also

a relevant consideration. (Wardlow, supra, 528 U.S. at p. 124;

accord, Souza, supra, 9 Cal.4th at pp. 240–241.) “ ‘[I]t would be

the height of naivete not to recognize that the frequency and

intensity’ ” of criminal activity is “ ‘greater in certain quarters

than in others.’ ” (Souza, at p. 241, quoting People v. Holloway

(1985) 176 Cal.App.3d 150, 155.) But it is equally true that a

great many law-abiding Californians live, work, or otherwise

find themselves in areas where criminal activity is prevalent.

Their mere presence there cannot be said to transform them into

suspects. Instead, it is “a factor that can lend meaning to the

person’s behavior.” (People v. Limon (1993) 17 Cal.App.4th 524,

532 (Limon).) But “standing alone, [it] is not enough to support

a reasonable, particularized suspicion that the person is

committing a crime.” (Wardlow, at p. 124; accord, Brown v.

Texas (1979) 443 U.S. 47, 52; People v. Casares (2016) 62 Cal.4th

808, 838; Souza, at p. 241.)

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Opinion of the Court by Corrigan, J.

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

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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 narcotic[s]

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. (See Cornell

v. City and County of San Francisco (2017) 17 Cal.App.5th 766,

781; Limon, supra, 17 Cal.App.4th at pp. 532–533; Health & Saf.

Code, § 11532, subd. (b).) 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.2 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

2

Health and Safety Code section 11532 makes it a crime to

“loiter in any public place in a manner and under circumstances

manifesting the purpose and with the intent to commit” certain

drug related crimes. Section 11530, subdivision (a) defines

“Loiter” as “to delay or linger without a lawful purpose for being

on the property and for the purpose of committing a crime as

opportunity may be discovered.” Because Flores was neither

charged with nor convicted of loitering, we need not parse the

statutes in detail.

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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. (Ibid.; United States v.

Arvizu (2002) 534 U.S. 266, 273, 276–277; Brignoni-Ponce,

supra, 422 U.S. at pp. 884–885.) 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.

The Attorney General relies heavily on Wardlow, supra,

528 U.S. 119 to justify Flores’s detention, but the facts of that

case are distinguishable. There, a four-car caravan of police

vehicles converged on a Chicago area “known for heavy narcotics

trafficking.” (Id. at p. 121.) “The officers were traveling together

because they expected to find a crowd of people in the area,

including lookouts and customers.” (Ibid.) The defendant, who

was holding an opaque bag, looked in the direction of the officers

and fled. (Id. at pp. 121–122.) The court held that the

defendant’s presence in a heavy narcotics area and his

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“[h]eadlong flight” upon seeing the police approach “justified

[the officer] in suspecting that [the defendant] was involved in

criminal activity, and, therefore, in investigating further.” (Id.

at pp. 124, 125.)

Wardlow’s flight upon seeing the officers was an important

factor in the analysis. The high court recognized that citizens

have the right to ignore the police and go about their business,

and the “ ‘refusal to cooperate, without more, does not furnish

the minimal level of objective justification needed for a detention

or seizure.’ ” (Wardlow, supra, 528 U.S. at p. 125, quoting

Bostick, supra, 501 U.S. at p. 437.) But the court reasoned that

“unprovoked flight is simply not a mere refusal to cooperate.

Flight, by its very nature, is not ‘going about one’s business’; in

fact, it is just the opposite.” (Wardlow, at p. 125.) “Headlong

flight — wherever it occurs — is the consummate act of evasion:

It is not necessarily indicative of wrongdoing, but it is certainly

suggestive of such.” (Id. at p. 124.) Seven members of the high

court reaffirmed this holding in 2018: “ ‘[U]nprovoked flight

upon noticing the police,’ we have explained, ‘is certainly

suggestive’ of wrongdoing and can be treated as ‘suspicious

behavior’ that factors into the totality of the circumstances.

[Citation.] In fact, ‘deliberately furtive actions and flight at the

approach of . . . law officers are strong indicia of mens rea.’ ”

(Wesby, supra, 583 U.S. at p. 59, quoting Wardlow, at pp. 124–

125 & Sibron v. New York (1968) 392 U.S. 40, 66; accord, Souza,

supra, 9 Cal.4th at pp. 234–235.)

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

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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.)

In his answer to the amici briefs, the Attorney General

relies on the statute that prohibits loitering for the purpose of

engaging in certain drug related offenses to justify the

detention. (See fn. 2, ante.) Health and Safety Code section

11532 provides that a person’s attempt to “to conceal himself or

herself or any object that reasonably could be involved in an

unlawful drug-related activity” is a relevant circumstance in

determining whether a person is loitering with the requisite

criminal intent, and further provides that the relevant

circumstances listed in the statute “should be considered

particularly salient if they occur in an area that is known for

unlawful drug use and trafficking . . . .” (Id., subds. (b)(3), (c).)

However, this pronouncement cannot supplant the standard of

reasonable suspicion mandated by the Fourth Amendment. In

order to detain a citizen on suspicion of loitering, or of criminal

activity more generally, officers must have “the level of

suspicion sufficient to justify a Terry stop . . . .” (Kolender v.

Lawson (1983) 461 U.S. 352, 360 [discussing Pen. Code, former

§ 647, subd. (e)]; see also id. at p. 353.)

The facts here contrast with other cases in which we have

upheld investigative detentions. In Souza, supra, 9 Cal.4th 224,

an officer was patrolling at 3:00 a.m. in a residential

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neighborhood where burglaries and drug activity were common.

He noticed Souza and another person standing near a car

parked at the curb, in almost complete darkness. The officer

pulled up behind the parked car and activated his spotlight.

Immediately, two other people in the car bent down towards the

floorboard area, whereupon Souza ran away. He was

apprehended and searched, revealing contraband. (Id. at p.

228.) We held that the totality of these circumstances justified

the detention: “From these circumstances — the area’s

reputation for criminal activity, the presence of two people near

a parked car very late at night and in total darkness, and

evasive conduct not only by defendant but by the two occupants

of the parked car — Officer Stackhouse reasonably suspected

that criminal activity was afoot.” (Id. at p. 240.)

In People v. Brown (2015) 61 Cal.4th 968 (Brown) “a

citizen living in a residential neighborhood made an emergency

call seeking police assistance because a fight was happening in

an alley behind the citizen’s home. The caller gave a specific

address . . . [and] heard screaming and a reference to a loaded

gun. The dispatcher heard screaming as well . . . . [¶] Within

three minutes of dispatch [a deputy sheriff] arrived with lights

and siren activated. Brown, the only person in the alley, was

driving a car away from the reported location of the fight. It was

after 10:30 p.m.” (Id. at p. 986.) The deputy yelled to Brown,

“ ‘Hey. Did you see a fight?’ Brown did not respond and kept

driving.” (Id. at p. 973.) “Brown left the alley but drove back

toward the scene on the main street” (id. at p. 986) and parked

a few houses down from the house behind which the fight had

occurred (id. at p. 973). We concluded under these

circumstances that “it was reasonable for [the deputy] to suspect

the sole occupant of the alley may have been involved in the fight

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PEOPLE v. FLORES

Opinion of the Court by Corrigan, J.

and to effectuate a brief and minimally intrusive detention,

which immediately yielded observations of criminal activity.”

(Id. at p. 987.)

Here, unlike Wardlow and Souza, there was no headlong

flight. The other factors discussed by Souza — early morning

hour and multiple persons all engaged in evasive conduct —

were likewise absent. And, unlike Brown, there was no

contemporary citizen request for assistance due to criminal

activity in the location where Flores was seen. The

circumstances here, viewed in totality, are insufficient to

provide reasonable suspicion that Flores was engaged in

criminal activity.

Our conclusion does not leave officers without the means

to follow up on behavior they view as calling for additional

investigation. Flores was present in a high crime area and

repeatedly tried to avoid being seen by, or engaging with, the

police. Those facts are certainly noteworthy. The officers would

have been well within the bounds of the Fourth Amendment to

continue to watch Flores as he stood on the street, as did the

detective in Terry. They were entitled to approach Flores and

engage him in consensual conversation. They could have asked

if he needed assistance, or had himself noted anything out of the

ordinary in the vicinity. If they made additional observations

while doing so, those observations may have changed the

calculus. But Flores’s mere refusal to cooperate “d[id] not

furnish the minimal level of objective justification needed for a

detention or seizure.” (Bostick, supra, 501 U.S. at p. 437; accord,

Wardlow, supra, 528 U.S. at p. 125; Royer, supra, 460 U.S. at p.

498 (plur. opn. of White, J.).)

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PEOPLE v. FLORES

Opinion of the Court by Corrigan, J.

The concurring opinion emphasizes “the danger in

considering ‘nervous’ and ‘evasive’ behavior,” including

“ignoring or walking, driving, or running away from officers,”

given the real world experience of minority communities with

police violence and racial profiling. (Conc. opn. of Evans, J.,

post, at pp. 1, 2.) Flores, Justice Stratton in dissent below, and

amici3 here, likewise highlight the issues of race or ethnicity and

policing. They build on the important concerns voiced in Terry

and augment them with the lessons of more recent history.

Consistent with these arguments, some out-of-state authorities

hold that a community’s or group’s experience with law

enforcement is a significant factor of which officers must be

mindful and courts should consider in evaluating the objective

reasonableness of any asserted suspicion of criminality. (See,

e.g., United States v. Brown (9th Cir. 2019) 925 F.3d 1150, 1156–

1157; Commonwealth v. Warren (Mass. 2016) 58 N.E.3d 333,

342.) In authorizing “stop and frisk” detentions, the court in

Terry recognized that “community resentment aroused by

particular practices is clearly relevant” to assessing the nature

of intrusions upon “reasonable expectations of personal

security” of those whom police encounter. (Terry, supra, 392

U.S. at p. 17, fn. 14.) With respect to the standard’s application

in a given case, the high court has consistently held that an

objective evaluation of the totality of the circumstances is the

touchstone of Fourth Amendment scrutiny. In making that

assessment, it is imperative that the circumstances confronting

both the officer and the citizen be judged against an objective

3

The Office of the State Public Defender, the California

Public Defender’s Association, and the Contra Costa County

Public Defender’s Office have filed amicus briefs in support of

Flores.

18

PEOPLE v. FLORES

Opinion of the Court by Corrigan, J.

standard. (Ashcroft v. al-Kidd (2011) 563 U.S. 731, 736;

Michigan v. Chesternut (1988) 486 U.S. 567, 574; Terry, at pp.

21–22.)

We apply well-established law in concluding that the

detention here was unauthorized. In reaching that conclusion,

we are not called upon to grapple with the important and

broader issues referenced above. Flores had the right to decline

further interaction with the officers and, under these facts, the

officers had no authority to compel him to do otherwise. The

trial court took the view that “any normal human being would

stand up and say, ‘Oh, you scared me’ or ‘Oh, what can I help

you with?’ or ‘Oh, why are you coming towards me?’ ” But the

reactions described by the court are not the only neutral ways

that an ordinary person might interact with police, or decline

further interaction.

Notwithstanding today’s holding, it remains true that

“nervous, evasive behavior” need not be ignored. (Wardlow,

supra, 528 U.S. at p. 124.) It is “a pertinent factor in

determining reasonable suspicion” based on all the

circumstances. (Ibid.) Likewise, the possibility of an innocent

explanation for evasive behavior, such as a desire to avoid police

contact out of fear for one’s safety, does not render the behavior

insignificant. (Id. at p. 125; Brown, supra, 61 Cal.4th at pp.

985–986; Souza, supra, 9 Cal.4th at pp. 233, 235; Tony C., supra,

21 Cal.3d at p. 894.) The Terry court noted that the series of

acts initially observed by the detective might each be innocent

in and of themselves. (Terry, supra, 392 U.S. at pp. 22–23.)

“There is nothing unusual in two men standing together on a

street corner . . . . Nor is there anything suspicious about people

in such circumstances strolling up and down the street, singly

or in pairs. Store windows, moreover, are made to be looked in.”

19

PEOPLE v. FLORES

Opinion of the Court by Corrigan, J.

(Ibid.) The court noted, however, that the particular facts the

detective noted told a different story and justified some sort of

further investigation. (Id. at p. 23.) But the crux of the case did

not turn on whether some form of further investigation was

proper but whether, in particular, there was justification for a

detention, resulting in the “invasion of Terry’s personal

security.” (Ibid.) Based on the totality of circumstances,

including a reasonable suspicion the men might be armed, the

majority concluded the officer was within his lawful scope of

authority to seize Terry and conduct a pat-down for weapons.

(Id. at pp. 22–23, 27–28, 30.)

“In allowing such detentions, Terry accepts the risk that

officers may stop innocent people. Indeed, the Fourth

Amendment accepts that risk in connection with more drastic

police action; persons arrested and detained on probable cause

to believe they have committed a crime may turn out to be

innocent. The Terry stop is a far more minimal intrusion, simply

allowing the officer to briefly investigate further. If the officer

does not learn facts rising to the level of probable cause, the

individual must be allowed to go on his way.” (Wardlow, supra,

528 U.S. at p. 126; accord, Brown, supra, 61 Cal.4th at pp. 985–

986; Souza, supra, 9 Cal.4th at pp. 233, 235; Tony C., supra, 21

Cal.3d at p. 894.)

Writing separately in Wardlow, Justice Stevens discussed

potentially innocent reasons that a person might flee from the

police, including fear of police violence. (Wardlow, supra, 528

U.S. at pp. 128–135 (conc. & dis. opn. of Stevens, J.).) But

Justice Stevens did not argue that evasive behavior such as

flight was of nominal or no significance to the reasonable

suspicion inquiry. Instead, he explained why the court correctly

declined to adopt a bright line rule authorizing detention of

20

PEOPLE v. FLORES

Opinion of the Court by Corrigan, J.

persons who flee from the police: “ ‘[u]nprovoked, flight,’ in

short, describes a category of activity too broad and varied to

permit a per se reasonable inference regarding the motivation

for the activity . . . . The totality of the circumstances, as

always, must dictate the result.” (Id. at p. 136 (conc. & dis. opn.

of Stevens, J.).)

As a matter of precedent and as a matter of sound reason,

the establishment of reasonable suspicion will always be

contextual. It will be informed by the totality of circumstances

and objective scrutiny of the reasons given for an officer’s

decision to infringe upon “the right of every person to enjoy the

use of public streets, buildings, parks, and other conveniences

without unwarranted interference or harassment by agents of

the law.” (Tony C., supra, 21 Cal.3d at p. 893.)

To be clear, officers may observe what people do in public

places. They may consider what they see in plain view and

determine whether what they observe merits further

observation, inquiry, or intervention. They may approach

people in public, engage them in consensual conversation, and

take note of their appearance and behavior. Nervous behavior

and attempts to conceal oneself may provide relevant context.

But before officers may detain someone they must be able to

articulate a legally cognizable reason to infringe on that person’s

liberty.

The Fourth Amendment recognizes a measured

framework for acceptable official intrusion upon the life of any

individual. Police officers and private individuals may well

occupy the same public space and have no particular interaction.

They may also engage in consensual encounters. But before an

officer can compel compliance with a show of authority,

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PEOPLE v. FLORES

Opinion of the Court by Corrigan, J.

articulable facts must support a reasonable suspicion of

criminal activity. In the absence of such facts, the person is

constitutionally protected and empowered to go on his or her

way.

The body of America’s Fourth Amendment jurisprudence

reflects the effort to strike a balance between the state’s

obligation to responsibly and legitimately meet the critical

needs of public safety with the nation’s founding and enduring

commitment to protect the individual liberty ensured to all its

people. The officers’ detention of Flores, under the

circumstances relied upon here, failed to maintain that balance.

III. DISPOSITION

We reverse the judgment of the Court of Appeal. The

matter is remanded with directions that the case be returned to

the trial court to permit Flores to withdraw his no contest plea

and the court to enter an order granting Flores’s suppression

motion. (People v. Ovieda (2019) 7 Cal.5th 1034, 1053; People v.

Miller (1983) 33 Cal.3d 545, 556.)

CORRIGAN, J.

We Concur:

GUERRERO, C. J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

22

PEOPLE v. FLORES

S267522

Concurring Opinion by Justice Evans

I agree with today’s opinion that the detention of

defendant Marlon Flores was unlawful. In bending over with

his hands by his shoe and refraining from acknowledging the

officers’ presence, Flores indicated he was either going about his

business or attempting to avoid engaging with the police — both

of which were within his rights to do. As the majority concludes,

the fact that Flores operated within his rights in a high crime

area did not transform his behavior into grounds to detain him.

Based on the totality of the circumstances, there was no

reasonable suspicion that Flores was engaged in criminal

activity that would justify his detention.

I write separately to explain why one’s attempts to avoid

engaging with the police — in whatever lawful manner — must

be viewed with care and caution when evaluating the legality of

a detention. The trial court’s observations and the Attorney

General’s arguments highlight the danger in considering

“nervous” and “evasive” behavior in the totality of the

circumstances analysis when devoid of real world context. The

trial court’s rationale for deeming Flores’s conduct “suspicious”

was that Flores failed to act as “any normal human being”

would, specifically that “any normal human being would stand

up and say, ‘Oh, you scared me’ or ‘Oh, what can I help you with?’

Or ‘Oh, why are you coming towards me?’ ” By expecting Flores

to interact with the police with pleasantries — even as police

approached him like a suspect — the trial court seemed to

1

PEOPLE v. FLORES

Evans, J., concurring

indicate that Flores could not decline a “consensual” interaction

unless he behaved in a very particular way. This is clearly not

the law. (See Florida v. Royer (1983) 460 U.S. 491, 497–498.)

While the Attorney General recognized Flores was within his

legal right to decline interacting with the police, he too faulted

Flores for failing to exercise this right in a particular manner.

During oral argument, the Attorney General asserted that

Flores could have “simply gotten in his car . . . [and] driven

away,” “could have walked away,” and “could have told the

officers that he didn’t want to engage with them.” While these

technically may have been legally available options, such

actions may have been and often are perceived by law

enforcement as escalating behavior meriting an escalated police

response, including potential pursuit and/or use of force. (See,

e.g., Eisenberg, Criminal Law: Policing the Danger Narrative

(2023) 113 J. Crim. L. & Criminology 473, 507–508.)

Contrary to the trial court’s and Attorney General’s

suggestions, the Fourth Amendment does not require that

citizens engage or decline from engaging with police in a

particular manner in order to be free from police detention. It

is therefore not surprising courts have concluded that

attempting to avoid police interaction, including ignoring or

walking, driving, or running away from officers, generally

should have limited significance — if any — “[w]here a suspect

is under no obligation to respond to a police officer’s inquiry.”

(Commonwealth v. Warren (Mass. 2016) 58 N.E.3d 333, 341

(Warren).) A contrary conclusion, these courts have reasoned,

would enable “ ‘the police [to] turn a hunch into a reasonable

suspicion by inducing the [behavior] justifying the suspicion.’ ”

(Ibid.)

2

PEOPLE v. FLORES

Evans, J., concurring

Importantly, naïve or ill-informed notions of police

interactions must not shape our Fourth Amendment

jurisprudence and must not compromise Californians’ Fourth

Amendment rights. It may be a reasonable response for an

individual to reflexively “freeze” or flee when being approached

by officers. (See Skalstad, Transformative Mediation Twenty

Years Later: An Invitation to Discuss Post-Traumatic Stress

Disorder and Legal Ethics (2016) 1 Concordia L.Rev. 1, 17 [“the

fight-flight-freeze response is a reflex and the product of the

autonomic nervous system”].) As numerous judges before us

have recognized, many individuals — including, particularly,

people of color — commonly hold a perception that engaging in

any manner with police, including in seemingly casual or

innocuous ways, entails a degree of risk to one’s safety. (See

Illinois v. Wardlow (2000) 528 U.S. 119, 132 (conc. opn. of

Stevens, J.) [“Among some citizens, particularly minorities and

those residing in high crime areas, there is also the possibility

that the fleeing person is entirely innocent, but, with or without

justification, believes that contact with the police can itself be

dangerous”].) This perception is based on the unfortunate and

longstanding realities of policing in many minority communities

across the country, as well as the police killings of Oscar Grant,

Eric Garner, Michael Brown, Akai Gurley, Tamir Rice, Calvon

Reid, Anthony Hill, Eric Harris, Dontay Ivy, Walter Scott,

Freddie Gray, Jr., Greg Gunn, Deravis Rogers, Terence

Crutcher, Jordan Edwards, Dennis Plowden, Jr., Stephon Clark,

Chinedu Okobi, George Robinson, Jimmy Atchison, Javier

Ambler II, Ryan Twyman, Elijah McClain, Cameron Lamb,

William Howard Green, Manuel Ellis, Breonna Taylor, Daniel

Prude, George Floyd, Andre Hill, Calvin Wilks, Jr., Quadry

Sanders, Jayland Walker, Tyre Nichols, Ta’Kiya Young and her

3

PEOPLE v. FLORES

Evans, J., concurring

unborn child, and thousands of other people in the last decade

alone. (See, e.g., Police Shootings Database, The Washington

Post, <https://www.washingtonpost.com/graphics/

investigations/police-shootings-database/> [as of May 2, 2024].)1

In short, police killings of Black and Brown children, men, and

women “have occurred with distressing frequency throughout

the country and here in California.” (B.B. v. County of Los

Angeles (2020) 10 Cal.5th 1, 30 (conc. opn. of Liu, J.).) 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.” (Utah v. Strieff (2016) 579 U.S. 232, 254

(dis. opn. of Sotomayor, J.).) 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.

Despite growing recognition of the deep-seated issues in

policing in our country, it is still the case that communities of

color disproportionately experience heightened levels of police

scrutiny and racial profiling. “Not only are Black people stopped

and searched more often, but such searches are less likely to

yield evidence or contraband.” (People v. McWilliams (2023) 14

Cal.5th 429, 451 (conc. opn. of Liu, J.), citing Lofstrom et al.,

Racial Disparities in Law Enforcement Stops (Oct. 2021) p. 25

and Ayers & Borowsky, A Study of Racially Disparate Outcomes

in the Los Angeles Police Department (Oct. 2008) pp. 7–8.) A

1

All Internet citations in this opinion are archived by year,

docket number, and case name at <http://www.courts.ca.gov/

38324.htm>.

4

PEOPLE v. FLORES

Evans, J., concurring

recent report found that out of more than 4.5 million law

enforcement stops recorded throughout California in 2022,

Black individuals were stopped 131.5 percent more frequently

relative to their proportion of the population and Hispanic

individuals comprised the largest racial group of stopped

individuals. (Racial and Identity Profiling Advisory Board,

Annual Report 2024 (Jan. 1, 2024) pp. 6–7

<https://oag.ca.gov/system/files/media/ripa-board-report-

2024.pdf> [as of May 2, 2024].) Stopped Black and Hispanic

individuals were more likely to be searched than stopped White

individuals, while officers arrested and handcuffed Native

Americans at the highest rates. (Id. at pp. 37, 42, 48–49.)

Officers were less likely to discover contraband when searching

individuals of every other racial or ethnic group as compared to

White individuals. (Id. at p. 49 [“Discovery rates were lower

during stops with searches of all racial or ethnic groups of

color”]; see also ibid. [“Compared to White individuals, Black

individuals had a higher probability of being searched . . .

despite being less likely to be found in possession of contraband

or evidence”].) Based on the reality illustrated by these

statistics, attempting to avoid police officers may also reflect, for

some people, a “desire to avoid the recurring indignity of being

racially profiled.” (Warren, supra, 58 N.E.3d at p. 342.)

Today’s opinion notes that some courts have begun

accounting for the impact of racial disparities in policing in the

totality of the circumstances analysis.2 The opinion does not

2

Today’s opinion also discusses the statute criminalizing

loitering for the purpose of engaging in drug activity, Health and

Safety section 11532. (Maj. opn., ante, pp. 12, 15.) The legality

5

PEOPLE v. FLORES

Evans, J., concurring

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. 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.

I concur.

EVANS, J.

We Concur:

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

of that statute’s provisions is not directly before us. In 2022, the

governor signed legislation repealing Penal Code section 653.22,

a statute criminalizing loitering for the purpose of engaging in

prostitution. The governor noted, “[T]he crime of loitering has

disproportionately impacted Black and Brown women and

members of the LGBTQ community. Black adults accounted for

56.1% of the loitering charges in Los Angeles between 2017–

2019, despite making up less than 10% of the city’s population.”

(Governor Gavin Newsom, Letter to State Senators re Sen. Bill

No. 357 (2021–2022 Reg. Sess.) July 1, 2022

<https://www.gov.ca.gov/wp-content/uploads/2022/07/SB357-

Signing-Message-7.01.2022.pdf> [as of May 2, 2024].) The

Legislature may wish to evaluate Health and Safety Code

section 11532 to determine whether it presents similar

constitutional concerns.

6

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion People v. Flores

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 60 Cal.App.5th 978

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S267522

Date Filed: May 2, 2024

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Mildred Escobedo

__________________________________________________________

Counsel:

Richard L. Fitzer, under appointment by the Supreme Court, for

Defendant and Appellant.

Ellen McDonnell, Public Defender (Contra Costa), and Gilbert Rivera,

Deputy Public Defender, for the California Public Defenders

Association and the Contra Costa County Public Defender as Amici

Curiae on behalf of Defendant and Appellant.

Galit Lipa, State Public Defender, and Jessie Hawk, Deputy State

Public Defender, for the Office of the State Public Defender as Amicus

Curiae on behalf of Defendant and Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,

Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant

Attorney General, Zee Rodriguez, Michael C. Keller, Chung L. Mar and

Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and

Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Richard L. Fitzer

Attorney at Law

6285 East Spring Street, 276N

Long Beach, CA 90808

(562) 429-4000

Shezad H. Thakor

Deputy Attorney General

300 South Spring Street, Suite 1702

Los Angeles, CA 90013

(213) 269-6109