The decision is out. This is a unanimous decision written by Justice Ginsburg and is quite short for a SCOTUS decision, being a mere 12 pages.
There are two prongs to a Terry "stop and frisk." The first is that a police officer has reasonable suspicion (RS) that a person being apprehended (or detained in an investigatory stop) is committing or has committed a criminal offense. The second test is that the police officer has RS that the person stopped is armed and dangerous.
The Court in Johnson, readily admits this.
In Brendlin v California,
551 U.S. 249, 255 (2007), the Court has said that for purposes of a traffic stop, the occupants, other than the driver, are also seized (detained).
However, the Court now says that the first prong of Terry is satisfied as regards to any and all passengers. That is, the police officer need not have RS that any of the passengers are involved in any criminal activity. This is an expansion of Terry, the vehicle was lawfully stopped, all occupants now share in the drivers criminal activity. Therefore, the only prong that needs to be met, as regards the passengers, is a RS of being armed and dangerous. There is a twist in even this, however.
Here, the Court assumes
facts contrary to the the evidence of the suppression hearing, facts relied upon by the Arizona Court of Appeals, in which the Officer herself states she did not have an articulable reason to think Johnson was armed and dangerous. Her testimony was that she patted him down, as a matter of protocol (SOP). Ginsburg cited a few things that might have led a reasonable man to give pause, and even to have RS that Johnson was armed and dangerous, but this completely ignores Trevizos own testimony.
With only two footnotes to the decision, the Court takes backsteps in footnote #2 and says:
2 The Arizona Court of Appeals assumed, “without deciding, that Trevizo had reasonable suspicion that Johnson was armed and dangerous.” 217 Ariz., at 64, 170 P. 3d, at 673. We do not foreclose the appeals court’s consideration of that issue on remand.
Note well, the portion I underlined in the footnote.
I believe the Court is really reaching here. If this is to be (and it is) the "new" standard for Terry "stop and frisks," then it relies upon the totality of circumstances as perceived by the prosecutor or the court, not upon what happened at the time of the stop and the Officers own opinions and reasoning. We now will allow second guessing (hindsight is always 20-20) of the Officers reasonings.
The courts have no business inserting their own opinions on supposed RS, when the Officer in question cannot so assert. It's a bad decision and nothing good will come of this.
There is one thing more that I find troubling about this case. As stated at trail, the offense for which the driver (and of course, the vehicle) was pulled over for, was a civil infraction in the State of Arizona. A civil offense is not a criminal offense. But for purposes of Terry, this Court now regards investigatory vehicular stops must now be treated as criminal stops, regardless of the actual offense committed.
This is an expansion of both Terry and Atwater.