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Court of Appeal:
Apparent Effort to Evade Police Attention by Seeming to Tie Shoe Lace Justified Detention
By a MetNews Staff Writer
Police had adequate cause to make an investigative stop when a man, at night and in an area known for drug dealing, ducked behind the passenger side of a parked car upon spotting them in their patrol car, and remained crouching as they approached him on foot, appearing to be hiding something, Div. Eight of the Court of Appeal for this district has held, over a dissent that protests that he could have simply been tying his shoe lace.
Justice John Shepard Wiley wrote the majority opinion, in which Acting Presiding Justice Elizabeth A. Grimes joined. Justice Maria E. Stratton authored the dissent.
Tuesday’s opinions come in the case of Marlon Flores who, after Los Angeles Superior Court Judge Mildred Escobedo denied his suppression motion, pled guilty to carrying a loaded firearm in a vehicle. The gun was found pursuant to a search of his vehicle after police had detained Flores and had, from outside the car, spotted drug paraphernalia.
Escobedo ruled that the nature of Flores’s conduct created reasonable suspicion, as required for a stop-and-frisk by the U.S. Supreme Court’s 1968 decision in Terry v. Ohio. Even if Flores actually was tying his shoe lace, as he claimed, she remarked, it was “odd” and suspicious that he did not stand up as the officers approached him, and was tying the lace for an inordinate amount of time.
“…I think the ducking and remaining hunched over is more than enough for this Court to find that there were articulable facts to find suspicion and enough for the officers to detain him,” Escobedo declared.
Wiley’s Opinion
Agreeing, Wiley said the facts “did not establish Flores was engaged in illegal drug activity, but the trial court was right that together the facts justified this Terry stop.”
Los Angeles Police Officer Daniel Guy testified at the suppression hearing that Flores “pretended to tie his shoe.” Stratton, in her dissent, scoffed in a footnote: “As an aside, how do you know if someone is ‘pretending’ to tie his shoe?”
Wiley wrote:
“Flores asks, how do you know if a person is pretending to tie his shoe? The answer is you would have valid suspicions if 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.
“Certainly there are innocent possibilities. But, in combination with the other factors, a reasonable officer had a reasonable basis for investigating further to resolve this ambiguity, because nervous and evasive behavior is a pertinent factor in determining whether suspicion is reasonable.…Courts must permit police to make commonsense judgments and inferences about human behavior.”
Stratton’s Dissent
Stratton recited—as Wiley did—that a person who is not a suspect is at liberty to decline to talk with police and a refusal to do so does not create reasonable suspicion of criminality. She noted that such a suspicion does arise, under the U.S. Supreme Court’s 2000 decision in Illinois v. Wardlow, where there is a “headlong” flight.
The jurist said that the court in Wardlaw “created a standard that, by and large, avoids deeming commonplace conduct suspicious,” observing that “only in exceedingly rare cases could a person credibly confuse a daylight neighborhood jog with headlong flight from police.”
She remarked in a footnote:
“I say credibly because recall the reasons given for shooting to death daylight jogger Ahmaud Marquez Arbery.”
Arbery, who was African American, was shot by white civilians in Georgia on Feb. 23, 2020, who were supposedly readying to make a citizens arrest of him, suspecting he was implicated in recent break-ins in the neighborhood.
Distrust of Police
Stratton said in her dissent:
“The majority’s approach that appellant froze and waited ‘too long’ to rise will apply to a wide array of conduct that cannot provide an objective basis for reasonable suspicion. Appellant’s reaction was neither abnormal nor suspicious. Indeed, some even might instruct their children remaining still is a prudent course of action (and even then, it may not work. #BlackLivesMatter.) To hold otherwise ignores the deep-seated mistrust certain communities feel toward police and how that mistrust manifests in the behavior of people interacting with them.”
(The dissenter noted at the outset of her opinion that Flores is Hispanic.)
She continued:
“Even outside of communities distrustful of police authority, how safe is it anytime or anywhere to move suddenly when police approach? Movement is incredibly dangerous for anyone because if police deem it sudden, and hence threatening, someone may end up shot. On top of that, we know for some populations, to stand up from a bent position as the police approach would effectively be suicidal, as it would likely be interpreted as a threatening act. To find freezing and waiting ‘too long’ reasonably suspicious is irresponsible and dangerous to both law enforcement and those with whom it interacts.”
Sole Option
Stratton added:
“The majority says you can’t duck and freeze and then wait too long to stand up. What’s left? The only option for a ‘normal’ human being, according to the majority, is to immediately stand erect and politely inquire about the purpose of the stop, a conversation we all have an absolute right not to start. In effect, the majority compels those in a high crime area to ‘stand still’ in a way the police subjectively believe is not furtive so as not to create reasonable suspicion that criminal activity is afoot….The majority opinion narrows the options for those who want to be judged ‘normal’ and hence beyond suspicion. They must stand erect and chat up the officers who approach them. Tell that to Eric Garner.”
Eric Garner, who was African American, died on July 17, 2014, as the result of New York police using an impermissible chokehold on him when he refused to be handcuffed in connection an arrest for unlawfully selling untaxed cigarettes.
The case is People v. Flores, 2021 S.O.S. 716.
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