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December 11, 2008, 05:37 PM | #1 | |
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New 4th Amendment case before SCOTUS
The question presented:
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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. |
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December 12, 2008, 05:22 PM | #2 | ||
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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: Quote:
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. Quote:
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January 29, 2009, 01:49 PM | #3 | |
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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: Quote:
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. |
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January 30, 2009, 01:23 AM | #4 |
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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 | #5 | ||
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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....
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I'm surprised that you find this decision somehow controversial. Last edited by nemoaz; January 30, 2009 at 09:55 AM. |
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January 30, 2009, 02:18 AM | #6 |
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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? |
January 30, 2009, 02:21 AM | #7 |
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nemoaz, I found Slaughterhouse appalling also. Should I list more? How about Raich? Kelo?
I could go on. |
January 30, 2009, 02:37 AM | #8 |
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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. |
January 30, 2009, 12:19 PM | #9 | |||||
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From the first sentence of the opinion:
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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. Quote:
Immediately following this, Justice Ginsburg writes: Quote:
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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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January 30, 2009, 01:18 PM | #10 |
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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.
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January 30, 2009, 05:20 PM | #11 |
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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 | #12 |
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Sounds like the very definition of a slippery slope.
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January 30, 2009, 10:00 PM | #13 | |
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Quote:
Of course, with this decision, that may change.
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February 2, 2009, 06:28 PM | #14 | |
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Quote:
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. |
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