The question presented:
In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense?
The case is Arizona v. Johnson, Docket No. 07-1122. Oral arguments were made yesterday, Dec. 9, 2008. Case filings may be downloaded here
This is an "Officer Safety" issue that may have far reaching implications on the reach of 4th amendment warrantless searches (Terry Stops). Please read the SCOTUS Blog Wiki
to familiarize yourself with the implications of this case (most of the documents of this case may be found here, including the opinion of the Arizona Appeals Court, which is what is being appealed).
One (unasked) question the Court may resolve, is exactly when does the seizure of the passenger end. It is a question that currently has no bright line rule. Every State, even every Federal District have ruled in conflicting ways. The general rule is that the seizure has ended when the officer issues the citation and hands back the drivers documents or tells the driver he is free to go. Yet, even this is not always the case, and this pertains to the driver, not the passengers. To be fair, if the Driver is no longer seized, neither are the passengers. In few cases do we clearly know when the seized passengers may be free to go.
In the case at hand, the Driver (along with 2 passengers) is stopped for a traffic violation. The officers that initiated the stop were a gang task force. While the driver was being cited, one officer initiated a conversation with the passenger in the back seat. This conversation had nothing to do with the violation and everything to do with the mandated task of the officers: To gather information related to gangs. The passengers co-operated with the officer, even to the extent of stepping outside the vehicle when asked. The officer then patted down the passenger and discovered a firearm. Arrested the passenger.
At trial, the defendant made motion to suppress the evidence as an unlawful search. Even though the officer admitted that the conversation was entirely consensual, that the passenger could have declined to talk to the officer, could have declined to step out of the vehicle, and that the defendant was completely co-operative until the pat down. The officer contended and the trial court agreed, that because the overall effect was that the passenger was still "seized," that the Terry Stop rules applied and denied the motion to suppress. The defendant was convicted of being a prohibited person in possession.
On appeal, the Arizona Appellate Court reversed and remanded, saying that since the subject matter had nothing to do with the stop, because by the admission of the officer that it was a consensual conversation the passenger was no longer seized. Reasonable man standards apply and the officer had no lawful justification to pat down the passenger.
Should the Supreme Court rule in favor of the State, then the implications are that an officer may "pat down" or frisk any person they may be talking to, even should the conversation with an officer be entirely consensual, and based upon nothing more than an officers need to feel safe.