View Full Version : New 4th Amendment case before SCOTUS

Al Norris
December 11, 2008, 05:37 PM
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 (http://www.abanet.org/publiced/preview/briefs/dec08.shtml#071122).

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 (http://www.scotuswiki.com/index.php?title=Arizona_v._Johnson) 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.

Al Norris
December 12, 2008, 05:22 PM
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.

Al Norris
January 29, 2009, 01:49 PM
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.

El Paso Joe
January 30, 2009, 01:23 AM
Its gonna take several bottles of Tums to get over this one... A long time ago in a galaxy far away, when I was an LEO (called them peace officers in those days and the job 1 was to preserve the peace) we were taught that on a stop we could search "driver's immediate grasp" for a weapon. But if we were to go after any other occupant we had to have a reasonable suspicion that was pretty obvious (though not so for the driver - it was often perfunctory).

But this standard is a real stretch. And puts everyone at risk. The folks in the car who now have a good reason to not talk to LEO's gathering intel will be declining. This is way too intrusive and gives the officer a lot of leeway I don't think they need. In my (not so) humble opinion...

January 30, 2009, 02:11 AM
Let me begin by saying that I have no interest in reading the briefs and I'm just responding to the posts. If there are facts that I'm missing by not reading the briefs, please accept my defense....

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.This strikes me as incorrect. The standard is objective, not subjective... although I have seen some courts use an "objectively" subject frankenstein standard. The fact that the opinion is unanimous should give you pause.

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.Well, the trial court must have made factual findings that supported the state. Who knows what those were. He was wearing gang clothes seems thin, but I'm sure we're just getting a summary.

I'm surprised that you find this decision somehow controversial.

Al Norris
January 30, 2009, 02:18 AM
The implications are appalling, since we are not limited to just traffic stops, here.

Suppose you and three friends are walking down the street and are stopped by an Officer.... Is this a consensual stop and gabfest or an investigatory Terry stop?

Al Norris
January 30, 2009, 02:21 AM
nemoaz, I found Slaughterhouse appalling also. Should I list more? How about Raich? Kelo?

I could go on.

January 30, 2009, 02:37 AM
I'm appalled at your appallment. :)

I think you are intertwining the concepts. A Terry stop and a Terry frisk are two different concepts. You may have a Terry stop and a Terry frisk in the same case, as was the case in Terry itself. You may also have a Terry stop in which there is no justification for a Terry frisk. I think--and apparently all the justices agree-- conversely you can also have a Terry frisk alone. It seems to me that any search (regardless of the level of suspicious or even with a warrant) inherently involves at least a minimal and perhaps temporary seizure of a person long enough to carry out the search. So the suspicious necessary to do a patdown for the weapon (in this case RS) implicitly involves a short detention long enough to allow the patdown.

Anyway, I'd argue it that way.

Al Norris
January 30, 2009, 12:19 PM
From the first sentence of the opinion:
This case concerns the authority of police officers to “stop and frisk” a passenger in a motor vehicle temporarily seized upon police detection of a traffic infraction.
It was in Terry that a two-pronged test was developed to justify the actions.
First the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
The Court then goes on to say that if the driver is lawfully detained, then the passengers are also lawfully detained.

What I don't agree with is the Court moving from the passengers being detained (Brendlin) to the passengers assuming the criminal nature of the driver, without having any RS as to their complicit criminal activity.
The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity.
There goes the first prong of Terry. It is now not required that there be RS of criminal activity on the part of the detained passengers. As I said, the Court now assumes that the reasons the Driver was stopped, subsume to the passengers.

Immediately following this, Justice Ginsburg writes:
To justify a patdown of the driver or a passenger during a traffic stop, however, just as in the case of a pedestrian reasonably suspected of criminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.
The Court then goes on, at some small length, to quantify the above. In doing so, the Court ignores what the testimony was, to assert only what the District Court ruled:
¶8 Trevizo testified she “wanted to gather intelligence about the gang [Johnson] might be in” because “gather[ing] intelligence” was one of her “main missions in the task force.” She hoped to learn about how big his possible gang was, where it was located, who its leaders were, and “what kind of crimes they’re involved in.” She sought to isolate him from the other occupants of the vehicle in the hope he would contribute more information. Her “intentions were only to gather gang intelligence and talk to him.” The other passenger remained in the vehicle throughout the encounter, talking to the third police officer. According to Trevizo, Johnson “could have refused [to get out of the car], certainly.”

¶9 Once Johnson left the vehicle in a normal manner, Trevizo “asked him to turn around,” and she “patted him down for officer safety because [she] had a lot of information that would lead [her] to believe he might have a weapon on him.” Trevizo did not tell Johnson she planned to pat him down before he got out of the vehicle but “made the decision” when he exited the vehicle. It was “the totality of what happened that evening that led [her] to pat him down.” She had “not observe[d] anything that appeared to be criminal” at the time of the pat-down search. She stated he could have refused to turn around and put up his hands for the pat-down search. Trevizo felt the butt of a gun near Johnson’s waist when she patted him down. Johnson then began to struggle, and she put handcuffs on him.
Seems pretty cut and dried? Not when under testimony, Officer Trevizo testified that she had no reason to suspect that Johnson was armed or dangerous, given his demeanor and honest answers to her questions. She couldn't Articulate a Reasonable Suspicion under oath.

All of this was taken into account by the Arizona Appellate Court (AAC), which held a de novo review. The stop was for a civil infraction, therefore the first prong of Terry was not met. Officer Trevizos' testimony that she had no articulable RS meant that the 2nd prong of Terry was not met. The AAC ruled that because Terry didn't apply, what occured between Johnson and Trevizo was therefore consensual.

The Supreme Court disagreed with the AAC, without ever citing the specific reasoning for their disagreements.

The RS came first from the prosecutor at the suppression hearing and then from the court in the opinion. In other words, RS was fabricated and the Supreme Court has just gone along with this fabrication of fact to engender a new intrusion into the 4th amendment.

It doesn't just stop there, however.

The first prong of Terry was that an investigatory stop was reasonable if the Officer had RS to believe that the person stopped is committing or had committed a criminal offense. Many jurisdictions statutorily quantify that traffic "infractions" are actually misdemeanors under that States criminal code. Idaho and Texas are among those that I know of. Arizona however, lists the particular infraction that the subject vehicle was stopped for as a civil infraction. There was no criminal offense involved.

The Arizona District Court played loose with the rules and the Supreme Court has just extended this to the Law of the Land. Any vehicular stop, civil infraction or criminal misdemeanor is now subject to police investigation as a crime, regardless of statutory construction.

In Atwater (532 U.S. 318 (2001)), The Supreme Court held that it was lawful to place the driver under custodial arrest, not because the stop was an infraction, but because the infraction in question was in fact a statutory crime. The fact that no jail time ensued, did not come into play.

It is now only a very short extension to conclude that an actual civil infraction can be cause for custodial arrest, because the Supreme Court in Johnson has just said such a stop is criminal and meets the first prong of Terry.

I expect the courts will in short order agree with the above assessment.

Tom Servo
January 30, 2009, 01:18 PM
Mr. Johnson was not the driver, nor did any action on his part result in the stop itself. There was no valid suspicion of Johnson at the time of the stop.

This would be a different matter if the officer had seen the butt of a gun or a suspicious bag of green leaves, but she did not.

She pulled him out so she could go fishing for probable cause. This is an incredibly important distinction. I think I'll also be needing some antacid pills.

Hunter Rose
January 30, 2009, 05:20 PM
I was always under the impression (and the WI State Patrol seemed to have the same impression) that PC was needed to pester the passenger in any way.

Now, I'm not a lawyer, so alot of this legalesse went right over my head. Am I to understand that my previous impression is no longer correct?

January 30, 2009, 06:53 PM
Sounds like the very definition of a slippery slope.

Tom Servo
January 30, 2009, 10:00 PM
Now, I'm not a lawyer, so alot of this legalesse went right over my head. Am I to understand that my previous impression is no longer correct?
Unfortunately, yes. At least on the Federal level. Several states have their own rules which define more strict limits as to what constitutes "probable cause" and "reasonable articulable suspicion."

Of course, with this decision, that may change.

Huey Long
February 2, 2009, 06:28 PM
This is an "Officer Safety" issue that may have far reaching implications on the reach of 4th amendment warrantless searches (Terry Stops).

Those are the magic words. All they have to do is say "officer safety" and the Fourth Amendment goes out the window.

The police were called out to my apartment a couple of years ago for a minor disturbance. When they got there, they asked if they could search the apartment. I replied that I did not consent to any searches and they told me that they could do a cursory search anyway for reasons of--yep, you guessed it--"officer safety."

The Fourth Amendment is a dead letter.