• FLORES, ___ C5 ___, ___ CR3 ___, ___ P3 ___ (24) #S267522
At 10:00 p.m. at night, on a cul-de-sac known for illegal drug and gang activity, police 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 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.
Flores’s suppression motion was denied. The Court of Appeal, in a 2-1 decision, affirmed.
The California Supreme Court, per Corrigan, J., reverses.
His acts of ducking out of sight, bending with his hands by his shoe, and not acknowledging the officers’ presence, suggest an unwillingness to be observed or interact. 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.)
***
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. hose 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.).)
Reasonable Suspicion to Detain Was Not Probable Cause to Search Auto
- MOSLEY, 101 CA5 243, 319 CR3 887 (24) #C099530
Sacramento County Sheriff’s Department received a call concerning a group of men in the parking lot of an apartment. The caller said the men were creating a music video, and one of them was holding a handgun. The caller described the man holding the handgun as thin, approximately 16 to 17 years old, and wearing “all black clothing.” Deputies and detectives from the Gang Suppression Unit responded to the call.
The location was in territory claimed by the East Side Pirus gang. A Detective Farrow recognized a “heavyset” man dressed in black as a validated member of the East Side Pirus, with a history of firearm arrests. He also recognized D.M., a juvenile.
The group was instructed to put their hands in the air. D.M. immediately took off running but was apprehended within two minutes. A search of D.M.’s person revealed he was carrying a firearm. A search of D.M.’s car revealed another firearm. All members of the group—including petitioner—were detained.
Petitioner (the “heavyset man”) was patsearched, cuffed, and placed in a patrol car. A Detective Johnson spoke with him and learned he had driven himself to the apartment complex in his wife’s car, which was parked approximately 20 feet away. Johnson twice asked petitioner for permission to search the car. Petitioner twice declined.
The detectives searched the car anyway. They found a loaded magazine on the front right floorboard. They then searched petitioner again. They found a Glock handgun. Petitioner was placed under arrest.
His suppression motion was denied. The Court of Appeal, per Renner, J., reversed.
The People argued the detectives had probable cause to search the car because: 1. Petitioner was a validated gang member with a history of firearms arrests and convictions, who partially matched the description of the person said to be waving a firearm in the music video. 2. His presence in an area known for gang activity, and the filming of the music video—a medium said to convey messages of dominance and power to rival gangs.
The court held: These arguments are misplaced, because they focus on probable cause to arrest or detain, rather than probable cause to search.”
[C]onsidering the totality of the circumstances, we conclude reasonable officers armed with the information known to Detectives Farrow and Johnson would not have believed they had probable cause to search the car for evidence of a crime or contraband because, at that point, they had no reason to believe such evidence or contraband would be found there. We therefore conclude the automobile exception does not apply, and the search of the car was made without probable cause.
Also, detention was also unduly prolonged, because the “man with the gun” was described as thin, approximately 16 to 17 years old. In other words, not “heavyset.” Thus when the detectives caught D.M. and found a gun on him, their mission was complete.
Bulky Jacket, Nervous Look, Awkward Sitting Insufficient to Justify Detention
- JACKSON 100 CA5 730, 319 CR3 317 (24) #B328954
Midnight, two officers in a cruiser saw Jackson alone in a parked SUV. They pulled alongside, close enough so Jackson would have to squeeze to get out. One officer went to Jackson’s side of the car, the other walked to Jackson’s passenger side. Both shined flashlights.
The officers said Jackson was wearing a “big bulky jacket” on a “hot” and “humid” night. He “was seated kind of awkwardly in the driver’s seat.” And when they approached in the dark and shined flashlights on him, he looked “uncomfortable and kind of nervous,” like he was “surprised to see us.”
The Court of Appeal, per Wiley, J., reversed the denial of Jackson’s suppression motion. “Collectively, these justifications did not create a reasonable suspicion of criminal activity. The detention was invalid.”