Argument preview: The Constitution at roadside

By Lyle Denniston
on Dec 8, 2008 at 1:29 am

At 10 a.m. Tuesday, the Supreme Court will hear arguments in Arizona v. Johnson (07-1122).  Arguing for the state will be Assistant Attorney General Joseph L. Parkhurst.  Toby Heytens, assistant to the U.S. Solicitor General, will argue for the federal government as amicus in support of Arizona.  Arguing for Lemon Montrea Johnson will be Andrew J. Pincus of Mayer Brown in Washington.

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The Supreme Court returns, in Arizona v. Johnson (07-1122), to the hardy perennial issue of police authority when they stop a car or truck for a routine traffic violation. This time, the issue is whether police may conduct a pat-down search of a passenger they think might be armed, even if they have no suspicion that the passenger has committed any crime.

Background

A multi-volume legal tome could be written on the topic, “The Constitution at Roadside.” Few Terms of the Supreme Court pass without at least one case testing how the Constitution – usually, the Fourth Amendment – applies when police officers pull over a car or truck for a traffic stop. Among the multitude of factors that may influence the outcome is whether the constitutional complaint is by the driver or the passengers, whether the situation involves people inside the vehicle or outside of it, whether the stop was brief or lengthy, whether the stopped individuals did or did not feel free to leave, whether they cooperated or seemed to resist police inquiry, whether any suspicion items turn up in the officer’s plain sight or after some kind of search, whether the suspicious items were located in the passenger compartment or in the trunk, whether officers did or did not fear for their safety, or the safety or passersby, whether the occupants consent to a search, or not. The Court, in analyzing such variables, usually focuses on the specific array of factual circumstances, but sometimes it tries to craft what it calls “bright-line rules” that are easy for police to follow and for the public to understand. That goal is quite elusive, because peculiar factual details often make all the difference, suggesting new exceptions or qualifications of previously written rules.

It has been true, since at least 1925 (the Supreme Court decision in Carroll v. U.S.), that people in a car or truck have less right of privacy under the Fourth Amendment than people elsewhere; this is called the “automobile exception” to the requirement that police, before they detain someone or make a search, must have a warrant. The notion is that, because vehicles are mobile, the police may not have time to do what the Constitution normally requires before a suspicious or actual criminal situation gets out of reach. Because this reduced level of privacy is so commonly understood, the Carroll precedent is seldom cited as a new roadside encounter case gets to the Supreme Court. The cases proceed on the assumption that police can routinely order a vehicle to pull over even if they have no reason more serious than that a minor violation of traffic laws has occurred, and that they can do something during the stop without violating the Fourth Amendment. The question always is: just what can they do?

In recent years, the Supreme Court’s roadside cases often have involved the actions of officers toward passengers. The Court, in the process, has added to the privacy rights of passengers under the Fourth Amendment, but it also has enlarged the authority of police toward passengers during roadside encounters. What it has not yet answered, specifically, is whether police, after sensing that a passenger may be armed and dangerous, have the authority to do a pat-down search to check out that suspicion. A pat-down search is usually a fairly quick movement of the officer’s hands over the body and the outer clothing, feeling for suspicious objects like a gun, a knife, or something else that might be used as a weapon. Under a 1968 decision, Terry v. Ohio (which was not a roadside case), officers are allowed to make pat-down search of people they have validly stopped if they have a reasonable belief that the person is armed or dangerous.

In Arizona v. Johnson (07-1122), the Court has agreed to decide whether a Terry “pat-down” of a vehicle passenger at roadside is allowed when a police officer on the scene believes that the officer’s safety or that of the public may be at risk, even if police have no basis for believing that the passenger has done or is about to do anything criminal.

The case involves the actions in April 2002 of a police officer from Oro Valley, Ariz., Maria Trevizo, who was on a gang activity patrol in Tucson in an area near the Sugar Hill neighborhood, known locally for gang-related activity. Gang members in that area were known to wear blue. Seeing a car in the area, an officer accompanying Trevizo did a license plate check and found that the insurance on the vehicle had been suspended. The officers had no suspicious of a specific crime, but they pulled over the vehicle.

Lemon Montrea Johnson was in the back seat. Trevizo noticed that he was wearing clothing that she thought hinted at a gang affiliation – he was dressed all in blue, with a blue bandanna. Trevizo grew concerned when she saw a scanner in Johnson’s pocket – something that might be used to track police calls and thus avoid detection of crime. Johnson, questioned by Trevizo, was cooperative; he told her he had done time for burglary, and testified he was from the town of Eloy, which Trevizo remembered was an area frequented by the Trekke Park Crips gang. Seeking to gather intelligence about that gang, she continued to question Johnson.

Johnson got out of the car, and at that point, Trevizo did a pat-down search. She felt the butt of a gun near his waist; he was arrested, and a further search found marijuana. He was charged with possessing a gun without legal authorization, possession of marijuana, and resisting arrest (because he had struggled with her after she discovered the gun). He tried to get the evidence excluded from the trial, claiming Trevizo had no authority to conduct the pat-down search. The challenge was denied, and he was convicted of the gun and marijuana possession counts, but not the resisting arrest charge.

Johnson challenged the search in appeal in Arizona courts, leading to a ruling by the Arizona Court of Appeals to overturn his conviction. It ruled that the officers did not have any suspicion of criminal activity at the time of the pat-down search, and that the search had nothing to do with the reason for the traffic stop, so the pat-down was unconstitutional under the Fourth Amendment.

Petition for Certiorari

The state of Arizona appealed to the Supreme Court on Feb. 27, raising the sole question of the authority of police to make a pat-down search out of concern for safety, even if they have no basis for believing a crime had been committed or was afoot. “Because this case involves an investigative strop from start to finish,” the petition said, “the only question is what a reasonably prudent officer would have done under the same circumstances,” citing to the Terry v. Ohio decision. The state also relied on comments the Supreme Court made (not necessary to the decision) in Knowles v. Iowa in 1998 saying that a pat-down of a passenger outside a vehicle was allowed if there was a suspicion he was armed and dangerous.

This case, it went on, “illustrates the need for this Court to establish a rule of law whereby police officers are permitted to protect themselves when they conduct traffic stops.” What results from the state court ruling, it contended, was a substantial limit on a search for weapons to protect officer safety, “creating an unworkable, impractical, and dangerous precedent for vehicle stops.”

Johnson, in response, relied upon the state appeals court ruling that he was no longer being officially detained at the time he got out of the car, and so, in that circumstance, a pat-down search was not valid unless the officer has a reasonable basis for suspecting criminal activity or are trying to get command of the situation at roadside. Neither was present when he was standing outside the car, his lawyer contended.

As an alternative argument, Johnson contended that, even if police may conduct a pat-down during a traffic stop because of a reasonable belief that an individual is armed and dangerous, Officer Trevizo lacked any basis for thinking that about him at the time. (That was not an issue the Arizona appeals court reached.)

Merits Briefs

The state’s and Johnson’s briefs on the merits expanded somewhat on the points made in the first stage before the Justices. The state made the broader point that “pat downs are permitted anytime they are reasonable,” so they are allowed when the officer “has a reasonable belief the person is armed and dangerous. A stop to investigate whether ‘criminal activity is afoot’ is only one type of police-civilian encounter in which a pat-down search may be permissible.” The state also contested the state court ruling that Johnson was not longer being detained when the pat-down was done. Moreover, it suggested that police authority to make a protective search continues through the entire duration of a traffic stop.

Johnson’s merits brief argued that the state court decision relied upon existing legal principles, and those should not be altered. The Court’s past precedents, the brief asserted, allowed for pat-down searches in only two situations: if the officer suspects criminal activity, and if the officers carrying out a valid search take other steps to assure they have command of the situation. Those principles, Johnson’s lawyers went on, are sufficient to enable officers to protect themselves. The brief vigorously challenged the state’s contention, supported by its amici, that an officer engaged in any encounter with a citizen can perform a weapons search based on a fear for the officer’s safety. That principle cannot be found in Terry v. Ohio, it argued. Johnson also resisted the notion that, once a traffic stop has occurred, the police retain authority throughout to make a search for weapons, even without criminal suspicion.

Again, Johnson argued that Officer Trevizo did not have a valid suspicion that he was armed and dangerous. The facts do not support that, the brief contended, but it suggested the Court at least should send the case back to state courts to explore that issue.

The state has the support of the Justice Department, echoing Arizona’s broadest argument; the Department brief contended: “A police officer must have the ability to protect the officer’s own safety from a person reasonably believed to be armed and dangerous whenever the officer encounters that person in a place where the officer has a lawful right to be. That principle has particular force in traffic stops…”, which it suggests are inevitably dangerous.

Arizona also has the support of 36 states, local government organizations, and police officers’ associations. Johnson has the support of the National Association of Criminal Defense Lawyers, sharing Johnson’s protest over the other side’s advance of “an unprecedented, and dangerously open-ended, view of law enforcement officers’ authority to perform so-called Terry searches.”

Analysis

This case offers the Court what appears to be a straightforward test of whether Terry v. Ohio’s endorsement of pat-down searches to protect officers’ safety is expansive enough to take in any encounter that police have with someone about whom they have fears of dangerousness. Answering that question would seem to bring into play the competing notions that it should write a minimalist opinion, or that it should strike out in new, broader directions. In doing so, the Court may have to decide for itself just how much it is concerned about officer safety in countless encounters that occur daily, and not just on the roadside, and how that translates into Fourth Amendment doctrine.

The state of Arizona, with the support of the Justice Department and others, is clearly reaching for a sweeping ruling that would expand the discretion of police to make weapons searches as a routine gesture in public encounters with people the officers have stopped, for whatever reason. The Court conceivably could embrace that expansion, but limit it to traffic stops, or it could go further.

While it is clear that the Court will have to provide – for the first time — some answer on what Terry means outside a sidewalk encounter, it may find, as Johnson’s brief argued, that it can do that without going beyond what it has said in a number of fairly recent precedents.