Having (finally) been able to wade through the briefs and now the Orals, here's my impressions.
Earlier, when questioning AAG Parkhurst, both Roberts, Alito and Scalia pondered the same question we see below, during the SG's time:
Let me ask you, suppose it's a roadside encounter in which the driver is changing a flat tire and the officer stops and wants to talk to him for a while and then he suddenly thinks, well, maybe this guy's armed. Is it okay for him to go ahead and search him?
MR. HEYTENS: Well, I guess the first thing I want to say, Justice Stevens, is that it's not okay to think, maybe he might be armed. The officer has to have articulable suspicion.
JUSTICE STEVENS: Well, Maybe he has an articulable suspicion.
MR. HEYTENS: Okay. Under those circumstances we think absolutely, and we think your hypo -
JUSTICE STEVENS: Is that any different from meeting somebody on the -- on the street corner?
MR. HEYTENS: It is different in the sense that --
JUSTICE STEVENS: The flat -- my flat tire example.
MR. HEYTENS: It is different because it's a roadside encounter, and this Court has recognized again and again and again -
JUSTICE STEVENS: But those are roadside encounters after a traffic violation.
MR. HEYTENS: I -- I agree with you, Justice Stevens, which is why at the end of the day we don't - we think that the officer, in basically those facts, should be able to perform a frisk on the street as well. I guess just -- again to say, I don't think the Court
needs to reach that issue, because I -
JUSTICE STEVENS: You don't rely at all on the fact this is a traffic stop?
MR. HEYTENS: We do rely on the fact -
JUSTICE STEVENS: On your second point, that is.
MR. HEYTENS: We think this case is substantially easier because it's a traffic stop, because -
JUSTICE STEVENS: Why is it easier?
At this point, Justice Kennedy, Justice Ginsburg and Justice Souter jump on Stevens bandwagon.
While both the A.A.G Parkhurst and the S.G. Heytens think that a correct reading of the 4th amendment means that if "the officer is on the street, in a pub, any place where he has a lawful right to be, that officer can, on the basis of a suspicion of armed and dangerous, pat down, and you don't need the first Terry." (quoting Ginsburg to which S.G. Heytens agreed), both the AAG and the SG said that the Court need not reach this to resolve this case. Yet, the Petitioners brief and the US amicus brief, hit this point several times.
On the other hand, when Mr. Pincus, for the respondent, is questioned, the Justices are unmerciful. Have to say that Pincus was not well prepared and gave too many points away. He did not hammer home what the AZ Appeals court said until at the very end of his time.
JUSTICE GINSBURG: How could he not be dangerous? First, she said: I suspected him because he was looking behind, but -- and then she said he was wearing the clothes of a gang, and then he admits to having been convicted of a burglary. Why isn't it very normal for a person to be apprehensive?
MR. PINCUS: All right. Let me give three quick answers to those. First of all, he looked -- this I -- I think a -- a was an unmarked car, Your Honor. very reasonable inference is he looked behind because he was surprised that there were, all of a sudden, flashing lights and a siren on a car.
The gang colors, as the lower court -- the Court of Appeals here noted, although Mr. Johnson was wearing blue, the driver was wearing red. If these were really gang colors, it -- it -- it is not consistent with the conclusion that they were gang colors to have people of different colors who were rival gangs in the same car.
And the third thing is, as lower courts have found, acknowledging prior criminal convictions is a basis for concluding that someone is not dangerous because they were forthcoming.
I'm not a all sure how the Court will rule on this.