A Professor’s Perspective on Detentions in a High-Crime Area
By Ray Hill, Professor Emeritus
Santa Rosa Junior College
Refer to Case Alert: “Be Careful, This New State Supreme Court Decision May Change How You Do Your Job Today.” Case: People v. Flores, Cal #S267522, 2024 WL 1919992, 2024 Cal. Lexis 2293 (5/2/24) -LU Ref. #CAC0139 – Bob Phillips – 5/4/24.
In their infinite legal wisdom, the California Supreme Court has unanimously decided that police officers cannot detain someone simply because that person tries to avoid interacting with them. The legal inference is that under these circ*mstances, you should conduct a contact or consensual encounter with this person or wait until they take off. Then a detention would be justified (Illinois v. Wardlow (2000) 528 U.S. 119).
This is the most troublesome decision I’ve read from the California Supreme Court since the infamous “Rose Bird” era in the 1970s-1980s, where the court’s decisions tied the hands of law enforcement and ignored precedent from the U.S. Supreme Court. This led to the 1982 passage of Proposition 8, dubbed the Right-to-Truth-in-Evidence (Article 1, Section 28 of the California Constitution). Now, only relevant evidence that was obtained by violating the U.S. Constitution can be excluded in a criminal proceeding. In California, search and seizure rules follow decisions made by the U.S. Supreme Court.
Note: In 1986, in an unprecedented move, California voters recalled Rose Bird from her position along with Associate Justices Joseph Grodin and Cruz Reynoso.
In my 47 years of teaching at the basic police academy and in advanced officer classes, I have always taught there is a difference between “mere avoidance” and “hiding.” There are several cases ruling that “mere avoidance,” without further detention factors is insufficient reason to detain:
Nervousness standing alone (U.S. v. Chavez-Valenzuela (2001) 9th Circ. 268 F 3d 719)
Avoiding eye contact with an officer (U.S. v. Escalante (1993) 9th Circ. 990 F 2d 1262)
Looking at an officer and walking away (Morgan v. Woessner (1993) 9th Circ. 997 F 2d 1244)
Driving away when an officer approached as the vehicle was otherwise legally parked (U.S. v. Turner (1993) N.D. Cal. 815 F Supp. 1332)
Repeated glances at an officer through a rear-view mirror (U.S. v. Rodriguez (1992) 9th Circ. 968 F 2nd 592)
“Surprised and terrified look” on the defendant’s face (U.S. v. Garcia-Camacho (1995), 9th Circ. 53 F 3rd 244)
Vehicle occupant shielding his face with his hands in the approaching headlights of a police car (U.S. v. Sigmond-Ballesteros (2001) 9th Circ. 247 F 3rd 243)
However, there is a California District Court of Appeal precedent supporting a detention under very similar circ*mstance as the Los Angeles police officers encountered in the Flores case.
Example: In an Antioch Police Department case, the defendant was handling exposed wires in the open trunk of a Lexus. Upon seeing officers, he appeared “real nervous,” immediately shut the trunk and walked away. A detention was justified to investigate burglarizing or “stripping” the Lexus (Peo. v. Osborne (2009) 175 Cal. App. 4th 1052). This decision and others like it are now dead in the water, given the higher court precedent in Flores.
Quoting my valued colleague, Bob Phillips, in “Detentions and Consent: When Do Legal Searches Turn Illegal and Potential Evidence Suppressed?” – LUPC Ref. #CAC00132 – 2/27/24): “The three appellate court justices who wrote and/or signed off on this decision need to go on a ride-along and get a first-hand taste of the realities and dangers of police work in the field, particularly at night. Until they do so, they’ll never understand the dangers inherent in their suggestions to the officers here regarding how they should be handling themselves in the field during a nighttime police-citizen contact.”
In the state supreme court’s Flores ruling, Associate Justice Kelli Evans, in a concurring opinion in which four others on the California Supreme Court joined, injected her social views into the decision:
“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.” She noted a Maryland Supreme Court case on the same subject: “(a)ttempting to avoid police officers may also reflect, for some people, a ‘desire to avoid the recurring indignity of being racially profiled.’” (Commonwealth v. Warren (Mass. 2016) 58 N.E.3d 342.
Evans continued: “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.”
There was absolutely no evidence in this case that the LAPD officers exhibited racial bias in their actions. It was 11 p.m. in a known drug and gang area, where the officers had made previous arrests in the area, including one the night prior. The officers observed the defendant, when he saw them, move behind an illegally parked vehicle, crouch down, then look up, crouch down again remain there (he argued he was tying his shoes), and initially hesitate to comply with officers’ commands. A frisk and a search of the vehicle recovered a loaded handgun and methamphetamine. The California Supreme Court ruled that although the defendant’s behavior was “odd” and “noteworthy,” it did not rise to the level of a reasonable for suspecting him of criminal activity.
What else do you need to support an objective basis for a temporary stop for investigation and questioning to determine criminal activity, if any, is afoot? I suggest:
11532(b) (3) H&S: Loitering in a Public Place for the Purpose of Sales or Use of Drugs, “Tries to conceal himself or herself or any object that reasonably could be involved in drug activity.”
11532(c) H&S: “The circ*mstances set forth in subsection (b) should be particularly salient if they occur in an area that is known for unlawful drug use and trafficking”.
According to the court’s 7-0 decision, the subject has to start running, or if you recognize the person as a known H&S violator, then you can detain.
Note: In her concurring opinion, Justice Evans also recommended to the legislature that they repeal 11532 H&S in the same manner as they repealed 653.20 and 653.22, Loitering for the Purpose of Engaging in a Prostitution Offense in 2022. “The legislature may wish to evaluate Health and Safety Code section 11532 to determine whether it presents similar constitutional concerns,” she wrote.
I believe the decision is ripe for appeal to the U.S. Supreme Court. Will the California attorney general step up? The Los Angeles County District Attorney’s Office could initiate a certiorari review, but will George Gascon?
In the meantime, maybe it is time to sharpen up on our consensual encounter skills. Engage in activity that doesn’t restrict a person’s freedom of movement and hope further reasonable suspicion develops during the contact.
For more, refer to Bob Phillips’ The Fourth Amendment – Search and Seizure – An Update, March 2024, Chapter 3 - Consensual Encounters, Pages 251-283.
Stay Safe,
RH
Update on the Homelessness, Drug Addiction and Theft Reduction Act, An Initiative to Amend Prop. 47. This proposition qualified for the November 2024 ballot with more than 900,000 signatures gathered. Thank you to the subscribers who contacted us to gain access to sign petitions.
The next step is to get your labor organizations involved in educating your citizenry on the need to toughen up the law on petty theft with a prior and multiple hard-drug possession offenses. The proposed revisions in Prop. 47 provide for a rehabilitation component in lieu of incarceration, but if one doesn’t go along with the program, they “rehab” in jail.
For a full review of the proposed revisions, see “The Homelessness, Drug Addiction and Theft Reduction Act – A Ballot Initiative to Amend Prop. 47 is in the Signature Gathering Stage,” LUPC Ref. #CAB00239 – Ray Hill - 4/11/24.
