In the United States, we are protected against unreasonable search and seizure by the Fourth Amendment. Police cannot detain, frisk, or interrogate a person without reasonable suspicion of a crime. Americans are free to walk down the street without being hassled or stopped and questioned by police for no reason. This is the Law of the Land, EXCEPT in California starting March 2021.

In 2021, the California Supreme Court upheld an arrest of a man who was detained for doing nothing.

The case is People v. Flores (Flores, 60 CA5 978, ___ CR3 ___ (21) #B305359). It was appealed and went to the California Supreme Court. You can read more about it HERE: https://law.justia.com/cases/california/court-of-appeal/2021/b305359.html

In summary, Mr. Flores was bent over in a manner consistent with tying his shoes as police approached. The police thought his actions were “suspicious” and used Mr. Flores being in a position consistent with tying his shoes as their legally required “reasonable suspicion” to detain him. They ordered him to stand and put his hands on his head. They handcuffed him. They patted him down all over his body. They then activated an electronic car key in his pocket and found out which car on the street was his. They then asked for his ID. Perhaps hoping to engender goodwill, Flores allowed the police officers to look in his car for his wallet and ID. (NOTE: Never allow law enforcement to search your private spaces without a warrant.) In his car, they found contraband and arrested Flores, who was later convicted. Yes, Mr. Flores should not have had contraband in his car, and yes, he failed to exercise his right to say “no” to a police search without a warrant. BUT the cops should not have been able to detain, handcuff, pat him down, activate his car key, and then question Mr. Flores without actual “reasonable suspicion.” There is nothing suspicious about having your fingers on your shoes and shoelaces on a public sidewalk at 10:00 p.m. at night. Mr. Flores did not have contraband on his person, so his action of putting his hands on his shoelaces wasn’t designed to “throw off” the police to stop them from searching and finding something in his pockets.

State of Collusion

Now, as of March 2021 in California, police can detain anyone, anytime, anywhere based on normal, lawful behavior as long as they claim that something, anything, including an everyday, mundane act, seems “suspicious.” Why? Because of the collusion of the Appellate Courts to rubberstamp bad decisions by lower courts, a decision that, in turn will enable, bad acts by police.

This is an example of what I was talking about in my book California: State of Collusion for the chapter, “High Courts, High Treason.” Judges have been eroding the laws that protect us. Any corruption that we have in our judicial system starts at the top—the Appellate courts. If a number of children in the same family turned out to be bad apples, you’d look at the parents. If a number of teachers at one school turned out to be bad teachers with their students all scoring low on standardized tests, you’d look at the principal. If every receptionist, waiter, and busser was rude at a particular restaurant, you’d look at the manager. This is because you look at the “boss” of a group, the person who is responsible for that group. Appellate court judges, called “justices,” are the ‘bosses’ of the entire court system.

Trial courts (lower courts) make rulings, mostly in favor of the prosecution, and oftentimes in stark contrast to the written law. It is only then that, if a defense attorney has time, money, and other resources, they can appeal the trial court (lower court) ruling to an Appellate court (higher court). The trouble is, appellate courts are acting more like gang bosses, than the bosses that the public wants them to be — we want them to make sure that the law is being followed in our court system! Instead, appellate courts almost always will uphold any ruling by a judge that is consistent with a loss of personal rights, privacy, and consolidation of government power as long as it goes against the defendant. However, by refusing to make sure that local judges are following the law in their rulings, they give a green light to local judges, prosecutors, and cops that they can do whatever they want. The result is that there are two systems of justice: one for them and one for us. Appellate courts inevitably fall on the side of curbing our natural rights, to the benefit of the State’s ability to convict whomever it pleases — “state reights” over citizens’ “natural rights.”

What does the U.S. Constitution say about this?

The Founding Fathers were very familiar with representatives of the State (in their case, representatives of the King) interrogating and arresting colonists at will. These abuses kept free people in fear of the police, and insecure in their personal lives. The notion of a person being King of their own Castle speaks to how important personal privacy and safety were to America from the start.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment permits police to initiate a brief investigative stop when they have a specific and objective basis for suspecting the person of criminal activity. It can’t be a mere hunch. This was decided in the case Terry v. Ohio (1968) 392 U.S. 1. It defines what is now known as a “Terry Stop.”

What is a Terry Stop?

The U.S. Supreme Court ruled in Terry v. Ohio that an individual may be stopped and frisked by law enforcement agents based on “reasonable suspicion.” The court found that this type of detainment (referred to as a “Terry Stop”) does not violate the Fourth Amendment, which restricts unreasonable search and seizure.

Due to another U.S. Supreme Court ruling in Hiibel v. Sixth Judicial District Court of Nevada, states may require an individual to give his or her name during a stop. However, the person is not required to answer any questions during a Terry Stop. 

Suspicion, Detention, Cause, Arrest

Language from the case, Terry v. Ohio, is that reasonable suspicion requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion. If an officer has reasonable suspicion in a situation, he may frisk or detain the suspect briefly. 

For “reasonable suspicion,” police must be able to articulate specific facts that caused the officer to reasonably believe that a crime had occurred, is occurring, or is about to occur.

Police Inquiry and the Right to Walk Away

Good policing often involves officers greeting and making conversation with people they encounter. It is a friendly and polite way to interact with the community. You are free to engage, OR NOT, as you see fit. It is nice to be nice, and polite to smile and say “Hi,” but manners are not the law. 

An officer may engage anyone in a purely voluntary conversation. For example: “Do you have a moment to chat?” “Do you need help?” “Seen anything unusual?” However, you are not obliged to reply, discuss, or even stop to acknowledge. You are free to walk away at any time. The Constitution guarantees the absolute right to avoid police contact.

In Florida v. Royer (1983) 460 U.S. 491, the Supreme Court reiterated that a person can avoid police contact without arousing reasonable suspicion by walking away, refusing to listen to, or declining to participate in police questioning.

Only in a Terry Stop, where the officer has reasonable suspicion, cops can detain you, ask questions, and even frisk you. Once the interaction is engaged, the officer can either release you, or arrest you, but you are not free to walk away until granted permission.

Fruit of the Poisonous Tree

The new ruling in California threatens to allow police detention based on commonplace conduct subject to the widely open interpretation of police. In the case of a person wary of police interaction, the approach leaves virtually no room for that person’s conduct to be deemed anything other than “normal,” and hence not suspicious. Now, if a cop THINKS you are acting suspicious for not interacting with him, or not interacting with him in a way that HE thinks is normal, you MUST be hiding something and you WILL subject to a Terry Stop. You will be ordered to stop what you were doing, halt where you were going. You will be ordered put your hands on your head, you will be handcuffed, you will be frisked all over your body, they can ‘accidentally’ hit your electronic car key, and then go look through your car window for anything suspicious. Do you see why this isn’t just about some ‘low life criminal’ named Flores?

If you are the wrong race for the neighborhood, driving a car that looks too nice or too shabby, or carrying a gym bag—any subjective reason an officer can think up—that is now a greenlight in California for the police to have their way with you, nevermind the fact that this flies in the face of the Constitution and in hundreds of years of legal jurisprudence.

The cops acted outside the bounds of law here. The defense attorney tried to bring this to light in the trial court/lower court. The prosecutor fought like hell to “win” for the officers. The trial court/lower court sided with the prosecution on behalf of the officers. The defense appealed and the appellate court/higher court essentially said, “We agree with the trial court. It’s okay for the cops can do what they did here.” Now, this police conduct will become routine for all members of the public. Our constitutional rights and social norms have been degraded by these gang boss appellate courts. Without objective criteria pointing to a reasonable suspicion of criminal activity, we now face the risk of arbitrary and abusive police practices that exceed tolerable limits.

However, in a glimmer of hope, Justice Stratton said powerfully in the dissent: “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.

About California Criminal Defense Attorney Joseph Tully

Author and Lawyer Joseph Tully brings a passion to law practice rarely seen among criminal defense lawyers and it drives his spectacular record. Tully & Weiss Attorneys at Law, his California criminal defense law firm, covers the entire state with offices in Martinez, San Francisco, Redding, Fresno, and LA/OC. Mr. Tully and team outwork and out-prepare prosecutors to combat the California’s massive law enforcement and judicial advantages over an individual. This imbalance of power against the innocent is the topic of Mr. Tully’s book California: State of Collusion.

Joseph Tully is a Certified Criminal Law Specialist, an elite certification awarded to less than 1% of California lawyers by the California State Bar Board of Legal Specialization. In addition, Joseph Tully has been listed among the National Trial Lawyers’ “Top 100 Trial Lawyers” multiple years. He has an extraordinary record of victories in high profile trials from Redding to LA to Contra Costa County and multiple precedent-setting wins in self-defense trials. His diligence and meticulous preparation resulted in scores of great outcomes for cases others declared impossible. Contact Tully & Weiss here for legal help statewide.