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Old January 30, 2009, 12:19 PM   #9
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,546
From the first sentence of the opinion:
Originally Posted by Ginsburg
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.
Originally Posted by Ginsburg
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.
Originally Posted by Ginsburg
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:
Originally Posted by Ginsburg
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:
Originally Posted by Arizona District Court
¶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.
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