Analysis
Along the way toward reaching a major new issue on police authority, and hinting that some Justices were ready to uphold at least some expansion, the Supreme Court on Tuesday got diverted into a question it has never decided. And that may complicate its move toward a decision in Arizona v. Johnson (07-1122), testing a police officer’s pat-down for weapons of a passenger emerging from a car that has been stopped for a traffic violation.
As the case reached the Court, it involved a rather sweeping claim of police power, perhaps going well beyond police action in roadside encounters. It is a claim that was described during the hearing by Justice John Paul Stevens as “a rather extreme position” and by Justice David H. Souter as “a pretty wide-open standard in the real world.”
 The wider argument, made by both the state of Arizona and by the federal government in support, was that police who encounter someone in a public place should have the authority to frisk that individual any time they fear he may be “armed and dangerous,” even if they have no suspicion that any crime has been or is being committed. Put that way, the claim would appear to lead to a major expansion of the pat-down authority that the Court first embraced, in significantly more limited form, in a 1968 decision, Terry v. Ohio.
Some Justices, notably Stevens and Souter and, to some degree, Ruth Bader Ginsburg, seemed troubled about the breadth of that argument, exploring various hypotheticals about chance encounters on public sidewalks where there is no hint of criminal acadtivity afoot, or on a roadside when all the motorist is doing is changing a tire. But it was by no means clear Tuesday that a majority of the Justices shared that concern. The comments of others seemed, for example, to suggest that fears for police safety — especially at roadside — may well be so vivid in everyday life to justify, for those Justices, some added pat-down authority.
But a good portion of Tuesday’s one-hour argument was taken up with exploration of what appeared to be an antecedent question dealing explicitly with roadside stops: when does such a stop begin and end, in relation to police discretion on what they do after the initial stop? In Fourth Amendment terms, that question is: when does a police seizure of an individual begin and end, especially during a traffic stop?
If the seizure is found to have come to an end once the traffic violation itself has been explored, any police activity that is intrusive after that — such as a pat-down search for weapons — may be harder to justify constitutionally and, indeed, may not be justifiable at all. If, however, a passenger — and the driver — remain seized throughout the stop, up to the point that police make it very clear that the individuals are free to move on, then police activity during the seizure may more easily satisfy the Fourth Amendment.
The Court, for all of the legion of roadside stop cases it has decided, has never ruled explicitly on when a seizure in that context comes to an end. In the case before the Court, involving Arizonan Lemon Montrea Johnson, a state court ruled that his seizure had ended prior to the time he left the stopped vehicle in which he was a passenger, and thus an officer’s pat-down after that was unconstitutional because the officer had no suspicion that a crime was being or had been committed by him.
To Arizona and the Justice Department, Johnson was not free to leave when he was patted-down, so the officer was free to do that search, especially since she feared he might be armed and dangerous after her discussion with him of gang activity in the area. But, to both the state and the federal government, it really makes no difference whether the seizure had come to an end: either way, according to their broader argument, the officer’s fear for her safety was enough to justify the pat-down even without any suspicion of a crime.
An assistant state attorney general, Joseph L. Parkhurst, and an assistant to the U.S. Solicitor General, Toby J. Heytens, fervently defended the broader argument, contending that past statements by the Supreme Court made it clear that officer safety was such a central concern in public encounters (especially at roadside) that a pat-down search for weapons should be considered well within police discretion. Heytens indicated that authority might even exist if the officer came upon someone changing a tire — if the officer had a notion that the individual was a threat to the officer’s safety.
Justice Antonin Scalia, taking perhaps the furthest position in support of their argument, suggested to Parkhurst that it should be enough to justify a pat-down that an officer suspected an individual of illegal activity. He seemed taken aback when the state’s lawyer insisted that the suspicion would have to be that the individual was both armed and dangerous — perhaps implying that Scalia thought it would be enough if the officer deemed the individual dangerous, even if not armed. Scalia also suggested that general police authority to search an area following an arrest might be a sufficient basis for a pat-down.
Justice Samuel A. Alito, Jr., somewhat less expansively, suggested that, if the traffic stop was valid in the first place, it might be enough to justify a pat-down if the officer during the stop developed a suspicion that the passenger was dangerous.
Chief Justice John G. Roberts, Jr., suggested that, if an officer thought an individual was carrying a gun, because the officer saw a bulge in the person’s clothing, it should not be necessary for the officer to wait for that individual to shoot first before doing a pat-down search.
Johnson’s lawyer at the podium, Andrew J. Pincus, had considerable difficulty making his argument against the sweeping claim to search power because he was pressed closely and repeatedly about whether Johnson was still under police control — not free to leave — when he was patted-down. Justice Stephen G. Breyer, in fact, almost reached the point of badgering Pincus on the point. Justices Kennedy and Souter also seemed quite thoroughly unpersuaded that Johnson was free to leave, and Kennedy even contended that the Supreme Court had made clear in a 2007 decision in a roadside case (Brendlin v. California) that an individual in Johnson’s situation certainly would not have felt he could walk away from the scene.
This extended discussion, of course, focused on an issue that the Court very likely did not have in mind when it agreed to hear Arizona’s appeal. And it probably complicates the Court’s task, since the Justices may have to decide, first, when a roadside seizure (or any police seizure, for that matter) begins and ends — an inquiry involving a multitude of variables, and then, second, decide what the Fourth Amendment requires or allows depending on the answer to the first question.
Arizona and the federal government would win if the Court were to rule that all that was necessary is a suspicion by a police officer that an individual is armed and dangerous; in that event, it would probably make no difference whether the individual was technically “seized” in Fourth Amendment terms, or not. But if the Court were to conclude that Johnson was not seized, would the Justices find that a suspicion of dangerousness was sufficient to justify a pat-down search, or some other form of police activity? And what if the encounter were somewhere other than a roadside after a vehicle stop?
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