# People v. Flores

> California Supreme Court · May 2, 2024

URL: https://www.frixlaw.com/law-library/cases/9969038

## Case

- **Court:** California Supreme Court
- **Decided:** May 2, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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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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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Opinion of the Court by Corrigan, J.

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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Opinion of the Court by Corrigan, J.

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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Opinion of the Court by Corrigan, J.

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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Opinion of the Court by Corrigan, J.

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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Opinion of the Court by Corrigan, J.

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

16
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.).)

17
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,

21
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, [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 .

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
[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
[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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9969038. Public record. Not legal advice.