NationStates Jolt Archive

The U.S. Supreme Court unanimously ruled Monday that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so. I don't find this decision particularly objectionable, but it is an expansion of police power and an erosion of 4th Amendment rights.

Facts of the Case

Lemon Johnson was riding in the backseat of a car when it was pulled over by the state police in Sugar Hill, Arizona. The officers had scanned the license of the car and found that it had a "mandatory insurance suspension." Although the stop was solely predicated on the suspended license, the officers began to question the car's occupants, including Johnson, about gang activity in the area. Based on certain circumstantial evidence, such as Johnson's possession of a police scanner, the officers asked Johnson to exit the car so that they could question him further. Although Johnson was free to stay in the car, he voluntarily exited and a subsequent search of his person by the officers revealed a handgun and a small amount of marijuana. Based on evidence obtained during this search, Johnson was convicted in Arizona state court of (1) the unlawful possession of a weapon as a prohibited possessor and (2) possession of marijuana. Johnson appealed, arguing that the evidence recovered from the search should have been suppressed because the officers did not have probable cause to search him at the time of his arrest and therefore did so in violation of his rights under the Fourth Amendment.

The Court of Appeals of Arizona agreed with Johnson and reversed his conviction and sentence. The court found that the officers had no reason to believe that Johnson was involved in any criminal activity when he was searched. The officers requested that Johnson step out of the car to discuss gang activity, not because the officers feared that their safety was threatened, thus it was part of a consensual encounter between the officers and Johnson. Therefore, the court said, the officers' subsequent search of Johnson was illegal and unconstitutional.

Question

Do officers violate the Fourth Amendment's protection against unreasonable searches and seizures when, after making a routine traffic stop, they search an individual who is conversing with the officers consensually and is not suspected of involvement in any criminal activity?

Conclusion

The search is held to have been legal and Arizona Court of Appeals ruling is overturned. SCOTUS explained:

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. In a pathmarking decision, Terry v. Ohio, 392 U. S. 1 (1968), the Court considered whether an investigatory stop (temporary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment’s ban on unreasonable searches and seizures. The Court upheld “stop and frisk” as constitutionally permissible if two conditions are met. 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.

For the duration of a traffic stop, we recently confirmed,a police officer effectively seizes “everyone in the vehicle,”the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255 (2007). Accordingly, we hold that, in a traffic-stop setting, the first Terry condition—a lawful investigatory stop—is met whenever it is lawful for police to detain an automobile and its occupants pending inquiry into a vehicular violation. The police need not have, in addition, cause to believe any occupant of the vehicle is involved in criminal activity. 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 ofcriminal activity, the police must harbor reasonable suspicion that the person subjected to the frisk is armed and dangerous.

The facts of the case and question above are copied from this link (http://www.oyez.org/cases/2000-2009/2008/2008_07_1122/). The quoted part of the conclusion is copied straight from the SCOTUS opinion, which is found here (http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf) (12p, pdf).

Any thoughts? Outraged annunciations? Applause?

Frankly, I'm unsure how this is different than the normal application of the Terry doctrine. As long as SCOTUS is saying, and they seem to be, that the two elements necessary to effectuate a Terry frisk still need to be met, I'm not sure the problem here.

I mean, the odd element here I suppose is the fact that he's a passenger, not the driver, but their argument that when police perform a lawful stop, everyone in the car is considered lawfully seized, not just the driver, seems compelling. I don't necessarily think this is an errosion of 4th amendment protections as much as it is a natural extention of an existing doctrine.

I find this part a bit shady.

Facts of the Case

Based on certain circumstantial evidence, such as Johnson's possession of a police scanner, the officers asked Johnson to exit the car so that they could question him further. Although Johnson was free to stay in the car, he voluntarily exited and a subsequent search of his person by the officers revealed a handgun and a small amount of marijuana.



Your going to tell me that if an officer asks you to get out of a car your allowed to just say no thanks and not get a dog and a taser and an obstruction of justice charge? How is someone supposed to know the difference between an order that your not allowed to ignore and a "request"?

Frankly, I'm unsure how this is different than the normal application of the Terry doctrine. As long as SCOTUS is saying, and they seem to be, that the two elements necessary to effectuate a Terry frisk still need to be met, I'm not sure the problem here.

I mean, the odd element here I suppose is the fact that he's a passenger, not the driver, but their argument that when police perform a lawful stop, everyone in the car is considered lawfully seized, not just the driver, seems compelling. I don't necessarily think this is an errosion of 4th amendment protections as much as it is a natural extention of an existing doctrine.

I mostly agree. It does bother me a bit, however, that the police can search you merely because you are riding in the back seat of a car that commits a minor traffic violation. I understand the build-up of precedent and the rationale, but it seems a far cry from a reasonable search based on probable cause -- let alone a search pursuant to a warrant as contemplated by the 4th Amendment.

Your going to tell me that if an officer asks you to get out of a car your allowed to just say no thanks and not get a dog and a taser and an obstruction of justice charge? How is someone supposed to know the difference between an order that your not allowed to ignore and a "request"?


Cops rely on you not knowing. Learn your rights.

That being said, as to the OP, I was under the impression police were already allowed to do this. Especially because they do it on a regular basis in Chicago, and no one (but me) really bitches.

Your going to tell me that if an officer asks you to get out of a car your allowed to just say no thanks and not get a dog and a taser and an obstruction of justice charge? How is someone supposed to know the difference between an order that your not allowed to ignore and a "request"?

I was wondering about that myself.

As an aside, the guy's first name being Lemon is probable cause for search IMO.

I think there may be a broader issue at play here, and that is that police already take liberties with, well, civil liberties and courts really have an obligation to discourage dishonest tactics like this

I mostly agree. It does bother me a bit, however, that the police can search you merely because you are riding in the back seat of a car that commits a minor traffic violation. I understand the build-up of precedent and the rationale, but it seems a far cry from a reasonable search based on probable cause -- let alone a search pursuant to a warrant as contemplated by the 4th Amendment.

Well, if I remember my constitutional law correctly, probable cause isn't the requirement for a Terry frisk, it only requires reasonably suspicion. A Terry frisk is different than a body search.

I find this part a bit shady.

Facts of the Case

Based on certain circumstantial evidence, such as Johnson's possession of a police scanner, the officers asked Johnson to exit the car so that they could question him further. Although Johnson was free to stay in the car, he voluntarily exited and a subsequent search of his person by the officers revealed a handgun and a small amount of marijuana.

Your going to tell me that if an officer asks you to get out of a car your allowed to just say no thanks and not get a dog and a taser and an obstruction of justice charge? How is someone supposed to know the difference between an order that your not allowed to ignore and a "request"?

The bolded part wasn't really at issue and is a bit of a red herring. SCOTUS ruled in Maryland v. Wilson, 519 U. S. 408 (1997), that “an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”

The officer in this particular case testified that Johnson voluntarily got out of the car and could have refused to get out. The Court actually finds it odd that the prosecutor and officers in the case tried to present the episode as consensual. Whether it was or not is irrelevant to the Court's decision.

Well, if I remember my constitutional law correctly, probable cause isn't the requirement for a Terry frisk, it only requires reasonably suspicion. A Terry frisk is different than a body search.

You are right. I'm just looking at the cumulative effect. Terry is an exception to the warrant requirement and even to the requirement for probable cause. Now that exception has been expanded. The exception starts to take over the rule.

Terry at least required that the police officer reasonably suspect that the person apprehended is committing or has committed a criminal offense. Apparently that is no longer required in a traffic stop, because there is no need to suspect the passengers of anything in order to search them.

I think I agree with SCOTUS here, but I'm a bit troubled by the slow erosion of the 4th Amendment bedrock.

A Terry frisk is different than a body search.

Help me out. Wha is the difference? I know that a Terry frisk requires only reasonable suspision, but beyond that I dont know how theyre different.

Help me out. Wha is the difference? I know that a Terry frisk requires only reasonable suspision, but beyond that I dont know how theyre different.

Terry v. Ohio (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=392&invol=1), 392 U.S. 1 (1968), authorizes a "stop & frisk" based on reasonable suspicion.

At the risk of oversimplifying it, a Terry "frisk" is intended to be a de minimus pat-down for weapons to protect the safety of an officer that has stopped someone. Does that answer your question?

Wiki provides a pretty good summary of Terry: http://en.wikipedia.org/wiki/Terry_v._Ohio.

Help me out. Wha is the difference? I know that a Terry frisk requires only reasonable suspision, but beyond that I dont know how theyre different.

To perform a search requires a warrant, pursuant to the 4th amendment right to be secure against unreasonable search and seizure. However, the courts have carved out specific exceptions to the warrant rule.

One of them is the search of a person if the police have probable cause to believe that the suspect has contraband on his person. This is an expediency requirement, we don't want the police to have to wait for a warrant to search someone, if they have probable cause to believe they have contraband, since in that time, the person can destroy it.

This is a search for anything illegal. Weapons, drugs, child porn, anything. If the police have probable cause to believe you have evidence of a crime on you, they can search you without a warrant.

a Terry frisk is different. The Terry doctrine allows the police to perform a hand pat down based on reasonable suspicion that the suspect has a weapon. This is less a "secure evidence" exception as it is an "officer safety" exception. The idea is, we don't want to hold police to a probable cause higher standard, when it comes to their own lives. If the police have reasonable suspicion that you have a weapon they can do a pat down, for weapons, but their search is limited to weapons, and places weapons could be conceiled. If, for example, they find something that feels like a pack of cigarettes, they can't open it, under a Terry frisk, to look for marijuana. They're looking for weapons, not drugs.

At the risk of oversimplifying it, a Terry "frisk" is intended to be a de minimus pat-down for weapons to protect the safety of an officer that has stopped someone. Does that answer your question?


It does. That was more or less what I remember it being. Appreciated.

personally, i've never been a fan of the terry exception at all.

Another step in the march of the USSC freeing the police of any need to even pretend to adhere to the Constitution.
To paraphrase Sam Jackson from some crappy movie no one saw: 4th amendment? I'm the po-lice, you have to do what I say!

Another step in the march of the USSC freeing the police of any need to even pretend to adhere to the Constitution.
To paraphrase Sam Jackson from some crappy movie no one saw: 4th amendment? I'm the po-lice, you have to do what I say!

its like i always say - give the cops an inch, they'll murder you in your sleep.

Just a diddily here.

While patrolling near a Tucson neighborhood associated with theCrips gang, police officers serving on Arizona’s gang task forcestopped an automobile for a vehicular infraction warranting a cita-tion. At the time of the stop, the officers had no reason to suspect the car’s occupants of criminal activity. Officer Trevizo attended to re-spondent Johnson, the back-seat passenger, whose behavior andclothing caused Trevizo to question him. After learning that Johnson was from a town with a Crips gang and had been in prison, Trevizo asked him get out of the car in order to question him further, out ofthe hearing of the front-seat passenger, about his gang affiliation.Because she suspected that he was armed, she patted him down forsafety when he exited the car. During the patdown, she felt the butt of a gun. At that point, Johnson began to struggle, and Trevizo hand-cuffed him. Johnson was charged with, inter alia, possession of a weapon by a prohibited possessor.
http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf

That wasnt a random pat down. She had reasonable suspection to search him, and she found a gun. The gun gave her probable cause to search his entire body.

This is just reaffirming Terry. I am not saying I agree with Terry to begin with, however, this is doing nothing more than reaffirming Terry.

personally, i've never been a fan of the terry exception at all.

It is worth noting that the majority in Terry emphasized that they were deciding only "the quite narrow question posed by the facts before us: whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest." (emphasis added) The Court further stated:

Given the narrowness of this question, we have no occasion to canvass in detail the constitutional limitations upon the scope of a policeman's power when he confronts a citizen without probable cause to arrest him.

The Court later added that "[e]ach case of this sort will, of course, have to be decided on its own facts." Subsequent decision have seemed to ignore these limitations.

Further, the majority in part based their decision not the the plain legality of the stop and search, but on the need (or lack thereof) to apply the exclusionary rule in the case. Again, subsequent decision have simply regarded such stop and frisks as legal.

Also, the majority warned that there is a "danger in the logic which proceeds upon distinctions between a 'stop' and an 'arrest,' or 'seizure' of the person, and between a 'frisk' and a 'search'." Once again, the Court's fear of such terms becoming "talismans" has been ignored by subsequent Courts.

Finally, Justice Douglas seems to have rightly predicted the result of the Terry decision in his dissent:

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Just a diddily here.


http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf

That wasnt a random pat down. She had reasonable suspection to search him, and she found a gun. The gun gave her probable cause to search his entire body.

This is just reaffirming Terry. I am not saying I agree with Terry to begin with, however, this is doing nothing more than reaffirming Terry.

Um. I linked the decision in my opening post and quoted how it was based on Terry.

This is not, however, a mere "reaffim[ation]" of Terry, but a subtle expansion. As the OP quote explained, Terry required that the police have a reasonable suspicion that the person apprehended and searched is committing or has committed a criminal offense. It is undisputed that the office did not have such a reasonable suspicion that Johnson had committed or was committing a crime. Thus, Terry has been extended to allow searches of passengers in traffic stops without such reasonable suspicion.

It is true that the Court still requires a reasonable suspicion that the person stopped is armed and dangerous. I think the basis for such suspicion in this particular case was pretty fucking thin, but that such suspicion existed wasn't at issue.

its like i always say - give the cops an inch, they'll murder you in your sleep.

Amen

Um. I linked the decision in my opening post and quoted how it was based on Terry.

This is not, however, a mere "reaffim[ation]" of Terry, but a subtle expansion. As the OP quote explained, Terry required that the police have a reasonable suspicion that the person apprehended and searched is committing or has committed a criminal offense. It is undisputed that the office did not have such a reasonable suspicion that Johnson had committed or was committing a crime. Thus, Terry has been extended to allow searches of passengers in traffic stops without such reasonable suspicion.

It is true that the Court still requires a reasonable suspicion that the person stopped is armed and dangerous. I think the basis for such suspicion in this particular case was pretty fucking thin, but that such suspicion existed wasn't at issue.

No, the officer did have reasonable suspicion. His behavior and his romoured gang affiliation. The officer asserted that as reasonable suspicion to pat him down, and felt a gun. THe gun then gave him probable cause to search the person.

Don't be black and "acting funny" or you're going to get searched, got it

Um. I linked the decision in my opening post and quoted how it was based on Terry.

This is not, however, a mere "reaffim[ation]" of Terry, but a subtle expansion. As the OP quote explained, Terry required that the police have a reasonable suspicion that the person apprehended and searched is committing or has committed a criminal offense. It is undisputed that the office did not have such a reasonable suspicion that Johnson had committed or was committing a crime. Thus, Terry has been extended to allow searches of passengers in traffic stops without such reasonable suspicion.

It is true that the Court still requires a reasonable suspicion that the person stopped is armed and dangerous. I think the basis for such suspicion in this particular case was pretty fucking thin, but that such suspicion existed wasn't at issue.
I agree that this is a subtle expansion of the exception. To me, it seems that mere proximity to a crime or a suspicious situation is enough, under this decision's thinking, to apply suspicion to anyone.

It is not so much the decision in the specific case that bothers me. It is often the case that everyone in a car is doing something together, and if that something happens to be illegal, like transporting contraband, then suspicion can reasonably fall on everyone. That said, however, I do agree that the officer in this case had to stretch to make up a justification for searching that passenger under those circumstances.

But what worries me more is that this decision strikes me as suggesting a default "whatever the cop says is good enough for us" attitude on the part of the court. Cops generally will expand suspicion to just about anyone they can see around them. That is to be expected in the kind of work they do. But that is also why the law puts restrictions on what they're allowed to do and reviews what they do multiple times. Cops may assume everyone is guilty, but the law and legal system are supposed to make the opposite assumption. This seems another babystep towards abandoning that.

Don't be black and "acting funny" or you're going to get searched, got it
Hasn't that been SOP for a long time now? If anything is "reaffirmed" by this decision, it would be that.

You are right. I'm just looking at the cumulative effect. Terry is an exception to the warrant requirement and even to the requirement for probable cause. Now that exception has been expanded. The exception starts to take over the rule.

Terry at least required that the police officer reasonably suspect that the person apprehended is committing or has committed a criminal offense. Apparently that is no longer required in a traffic stop, because there is no need to suspect the passengers of anything in order to search them.

I think I agree with SCOTUS here, but I'm a bit troubled by the slow erosion of the 4th Amendment bedrock.

The "reasonable suspicion" by most police nowadays is that everyone they pull over is potentially armed. They are trained to believe that until each and every person is "under control" and you absolutely know the armed/not armed status of each person, you are placing yourself at extreme risk.

There are many studies which show that the policeman gets shot or stabbed by the one person he fails to frisk and subsequently fails to control. They show police many videos of many situations like this.

I agree with SCOTUS here, and yes, I'm troubled by the 4th erosion (I think Cat's posts over the past few weeks are annotating a trend here), but I also believe that police do not have an obligation to take unnecessary risks.

While you may pull someone over for a traffic stop, and run the tag and license of the driver and come up with nothing, it's possible that others in the car have felony warrants and such - and you'll have no idea. Probable cause, either from NCIC or from visible behavior isn't always going to be available in time to stop an attack.

Um. I linked the decision in my opening post and quoted how it was based on Terry.

This is not, however, a mere "reaffim[ation]" of Terry, but a subtle expansion. As the OP quote explained, Terry required that the police have a reasonable suspicion that the person apprehended and searched is committing or has committed a criminal offense. It is undisputed that the office did not have such a reasonable suspicion that Johnson had committed or was committing a crime. Thus, Terry has been extended to allow searches of passengers in traffic stops without such reasonable suspicion.

It is true that the Court still requires a reasonable suspicion that the person stopped is armed and dangerous. I think the basis for such suspicion in this particular case was pretty fucking thin, but that such suspicion existed wasn't at issue.

I found this (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-1122_Petitioner.pdf).

the officer had suspicion to search frisk Johnson.
(J.A. 14-15.) Detective Gittings made contact with the
front-seat passenger, who remained seated throughout
the stop, and Officer Trevizo made contact with
Johnson. (Id. at 14-15, 30-31.) Either Machado or
Gittings asked whether weapons were in the vehicle,
and all of the occupants said “no.” (Id. at 15.) Trevizo
asked Johnson whether he had identification with
him, and Johnson said “no.” (Id.) Trevizo testified,

“What struck me as highly unusual and cause for
concern is there was a scanner in [Johnson’s] jacket
pocket.” (Id. at 16.) She testified:
It caused me concern because most people
don’t carry around a scanner in their jacket
pocket unless they’re going to be involved in
some kind of criminal activity or going to try
to evade the police by listening to the scanner.

(Id.) Although the scanner was not illegal, she said it
was unusual in her training and experience for
someone to carry a scanner in his pocket. (Id. at 17.)

...

Officer Trevizo gave eight grounds for believing
that Johnson was armed and dangerous: (1) Johnson
watched the officers out the rear of the car as they
approached the vehicle; (2) Johnson did not have
identification on his person; (3) Johnson carried a
police scanner in his jacket pocket; (4) Johnson was
wearing a blue shirt, shoes, and bandanna; (5) the
traffic stop took place near a known Crips neighborhood;
(6) Johnson told Trevizo that he was from Eloy,
7
Arizona;1 (7) street gang members were known in
general to the task force to carry firearms; and (8)
Johnson told her he had done time for burglary and
had been out for about a year. (J.A. 10-19.) Trevizo
said that it was not any one specific circumstance but
rather the totality of these circumstances that contributed
to her concern for officer safety. (Id. at 21.)

Johnson was the Passenger in the back, any word if the other two were also arrested and charged?

the officer had suspicion to search frisk Johnson.

So, claiming not to have a weapon is reason enough to get searched?

An irrelevant aside and my apology for the derail but during a traffic stop, if you have a legal carry/conceal license for a pistol, at what point are you required to disclose of its existence to the officer that pulled you over? If you do have a gun but its legal and you deny you have anything is that illegal? Can you just not answer? Are you required to disclose the fact that your legally armed? Can you just say nothing?

An irrelevant aside and my apology for the derail but during a traffic stop, if you have a legal carry/conceal license for a pistol, at what point are you required to disclose of its existence to the officer that pulled you over? If you do have a gun but its legal and you deny you have anything is that illegal? Can you just not answer? Are you required to disclose the fact that your legally armed? Can you just say nothing?

Here's what the law in Michigan says:

1. An individual licensed to carry a concealed pistol who is stopped by a police officer (traffic stop or otherwise) while in possession of a pistol shall immediately disclose to the police officer that he or she is carrying a concealed pistol either on their person or in their motor vehicle.

* Failure to disclose this information to a police officer carries the following penalties:

* First offense = State Civil Infraction - $500 fine and 6-month CCW license suspension.
* Second offense = State Civil Infraction - $1000 fine and CCW license revocation.

2. An individual licensed to carry a concealed pistol shall have the license in his or her possession at all times he or she is carrying a concealed pistol.

* Failure to possess CCW license when carrying a concealed pistol is a State Civil Infraction and a $100.00 fine.

3. Upon request, an individual licensed to carry a concealed pistol shall show both of the following to a police officer:

* His or her license to carry a concealed pistol
* His or her driver license or personal identification card

* Failure to show CCW license and Michigan driver license or Michigan personal identification card when carrying a concealed pistol is a State Civil Infraction and $100.00 fine.

4. A pistol carried in violation of numbers 1, 2, or 3 is subject to immediate seizure by a police officer.

* If a weapon is seized for failure to possess a CCW license while carrying a concealed pistol:

* Individual has 45 days in which to display their license to carry a concealed pistol to the law enforcement agency that seized the pistol and the pistol shall be returned.

* If the individual does not display their license to carry a concealed pistol within 45 days the pistol is subject to forfeiture.



http://www.michigan.gov/msp/0,1607,7-123-1591_3503_4654-10941--,00.html

So, claiming not to have a weapon is reason enough to get searched?

oops, sorry, was supposed to bold the list of circumstances the officer felt warranted the pat down. :p

oops, sorry, was supposed to bold the list of circumstances the officer felt warranted the pat down. :p

Ah yes, those are far more reasonable reasons.

All right then everyone in this thread must line up and ready themselves for a full cavity search, Guility untill the cops say otherwise right?

Pray the cop feels nice enough to use the Clean gloves, and dont forget to give the cops some blood its no big deal if thay miss the mark and lose a needle in your arm, remeber the cops arnt here to help you there here to tell you what to do, talking back to a cop is a criminal offence, after all them cops got to learn to be scared of normal folks seeing as any random person could pull out an AK or an Uzi and splatter a nearby mall or school or that police station.

Not like thay get rundown more on traffic stops by other cars more often then thay get attacked by the folks thay stop.

Sarcasim?

(The previouse post douse not repersent or represent the feelings ideas or thoughts of the posting individual so feel free to freak out to your contentment and then blame only yourself)

Well, they'd nick him in England. You see and hear of it on the TV all the time, they stop a car for speeding, search the occupants and it, and find either nothing at all, or a weapon, money, drug stash etc etc. If you have nothing to hide, why worry. Seems allright by me. Some famous serial killer was found due to a speeding fine or something similar a while back.

I know the point is the amendment thing, but I question how a defining law of the USA as a nation can be used to get people out of prison even though they had committed the crime. I'm no hotshot on law, but it seems from my point of view that this guy was arrested for a crime that he did commit, but because the police didn't intend to arrest him for that crime at first, but another, it voids it in court?

Well, I doubt the police arrest many people outside of those circumstances do they? Has to be true with public offences such as drink related fights, breaching the peace, etc etc.

Oh well, I don't claim to understand completely :P Correct me if I am wrong.

I found this (http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-1122_Petitioner.pdf).

the officer had suspicion to search frisk Johnson.
Officer Trevizo gave eight grounds for believing
that Johnson was armed and dangerous: (1) Johnson
watched the officers out the rear of the car as they
approached the vehicle; (2) Johnson did not have
identification on his person; (3) Johnson carried a
police scanner in his jacket pocket; (4) Johnson was
wearing a blue shirt, shoes, and bandanna; (5) the
traffic stop took place near a known Crips neighborhood;
(6) Johnson told Trevizo that he was from Eloy, Arizona;
(7) street gang members were known in
general to the task force to carry firearms; and (8)
Johnson told her he had done time for burglary and
had been out for about a year. (J.A. 10-19.) Trevizo
said that it was not any one specific circumstance but
rather the totality of these circumstances that contributed
to her concern for officer safety. (Id. at 21.)


Johnson was the Passenger in the back, any word if the other two were also arrested and charged?

First of all, kudos on the "legwork" to find and read this brief.

Second, until now, Terry stop and frisks required two types of reasonable suspicion:

(1) the police office must reasonably suspect that the person that the person apprehended is committing or has committed a criminal offense;

(2), to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.

In the case at hand, it is undisputed that the officer(s) did not have the first type of reasonable suspicion regarding anyone in the car. From the Court opinion: "In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity." Nor did any of the factors you cite above suffice for this first prong of suspicion.

Now the Court accepted that the factors you name were sufficient to give the officer(s) the second type of reasonable suspicion -- namely that Johnson was armed and dangerous. (In fact, this does not appear to have been an issue before the Court, but merely accepted.) I'm fine with that.

Third, I did say and will repeat that the cause for suspicion that Johnson was armed and dangerous was pretty fucking thin-despite the many "factors" you cite. For example, blue clothes = armed & dangerous? Watching the police approach the car = armed & dangerous? (Wouldn't that be normal behavior?) Etc, etc, etc. Nonetheless, I recognize as Hotwife points out that the courts pretty much defer to the officers on this question because of the interests in police safety.

First of all, kudos on the "legwork" to find and read this brief.

Second, until now, Terry stop and frisks required two types of reasonable suspicion:

(1) the police office must reasonably suspect that the person that the person apprehended is committing or has committed a criminal offense;

(2), to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.

In the case at hand, it is undisputed that the officer(s) did not have the first type of reasonable suspicion regarding anyone in the car. From the Court opinion: "In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity." Nor did any of the factors you cite above suffice for this first prong of suspicion.

Now the Court accepted that the factors you name were sufficient to give the officer(s) the second type of reasonable suspicion -- namely that Johnson was armed and dangerous. (In fact, this does not appear to have been an issue before the Court, but merely accepted.) I'm fine with that.

Third, I did say and will repeat that the cause for suspicion that Johnson was armed and dangerous was pretty fucking thin-despite the many "factors" you cite. For example, blue clothes = armed & dangerous? Watching the police approach the car = armed & dangerous? (Wouldn't that be normal behavior?) Etc, etc, etc. Nonetheless, I recognize as Hotwife points out that the courts pretty much defer to the officers on this question because of the interests in police safety.


TCT, maybe I'm a bit confused, but, from my reading, it does not seem to suggest, to me, that the first prong of terry just went out the window. Rather, from my understanding of Terry, the two basic prongs required for a Terry frisk can be reduced to:

1) you must perform a constitutionally valid seizure of the person

2) you must have reasonable belief that the person has a weapon.

Now we can debate the merits of #2 all we want. We might find them thin, but in the end, the courts found that the officer had reasonable belief that the suspect had a gun. Maybe we disagree with it, but I think, most likely, the court probably fell on the side of "it was reasonable to believe he had a weapon" because, as it turns out, he did have a gun on him. Whether we like to admit it or not, the fact that the officer turned out to be right I think could weigh in on the matter. I think when the court tries to decide whether the officer reasonably believed the suspect was armed, the fact that he WAS ARMED has a tendency, at least subconciously, to suggest that the belief was reasonable.

The sticky part of it, so it seems, is the first part. It seems to me that it isn't that the first prong just went out the window, but rather the unusual circumstance of "terry meets car". Under the seizure rules of a vehicle, when a car is legitimately stopped, EVERYBODY in the car is legally "seized" for fourth amendment purposes.

So it seems to me that the court is saying here, not that "a Terry frisk no longer requires a permissible seizure" but rather "the requirement of a permissible seizure was met, not in the traditional fashion due to the officer's belief that the person was, had, or was about to commit a crime, but in a more round about fashion, in that he was a passenger in a car legally stopped".

So I'm unsure if the first prong of the test is truly "the police office must reasonably suspect that the person that the person apprehended is committing or has committed a criminal offense" but rather, a more simply situation of "the police officer must perform a constitutionally permitted seizure", and the most common way that is usually performed by by reasonable suspicion that the person that the officer apprehended is committing, or has committed a criminal offense, but there are OTHER permissible seizures, including simply being in a car that legally got pulled over.

So I don't see it as abandoning the first prong, I see it as a clarification. Yes, typically reasonable suspicion of a past of imminent crime IS a way of getting to that "Must perform a valid seizure of a person" requirement, but it's not the ONLY way.

edit: FOURTH amendment damn it, not first!

TCT, maybe I'm a bit confused, but, from my reading, it does not seem to suggest, to me, that the first prong of terry just went out the window. Rather, from my understanding of Terry, the two basic prongs required for a Terry frisk can be reduced to:

1) you must perform a constitutionally valid seizure of the person

2) you must have reasonable belief that the person has a weapon.

Now we can debate the merits of #2 all we want. We might find them thin, but in the end, the courts found that the officer had reasonable belief that the suspect had a gun. Maybe we disagree with it, but I think, most likely, the court probably fell on the side of "it was reasonable to believe he had a weapon" because, as it turns out, he did have a gun on him. Whether we like to admit it or not, the fact that the officer turned out to be right I think could weigh in on the matter. I think when the court tries to decide whether the officer reasonably believed the suspect was armed, the fact that he WAS ARMED has a tendency, at least subconciously, to suggest that the belief was reasonable.

The sticky part of it, so it seems, is the first part. It seems to me that it isn't that the first prong just went out the window, but rather the unusual circumstance of "terry meets car". Under the seizure rules of a vehicle, when a car is legitimately stopped, EVERYBODY in the car is legally "seized" for fourth amendment purposes.

So it seems to me that the court is saying here, not that "a Terry frisk no longer requires a permissible seizure" but rather "the requirement of a permissible seizure was met, not in the traditional fashion due to the officer's belief that the person was, had, or was about to commit a crime, but in a more round about fashion, in that he was a passenger in a car legally stopped".

So I'm unsure if the first prong of the test is truly "the police office must reasonably suspect that the person that the person apprehended is committing or has committed a criminal offense" but rather, a more simply situation of "the police officer must perform a constitutionally permitted seizure", and the most common way that is usually performed by by reasonable suspicion that the person that the officer apprehended is committing, or has committed a criminal offense, but there are OTHER permissible seizures, including simply being in a car that legally got pulled over.

So I don't see it as abandoning the first prong, I see it as a clarification. Yes, typically reasonable suspicion of a past of imminent crime IS a way of getting to that "Must perform a valid seizure of a person" requirement, but it's not the ONLY way.

edit: FOURTH amendment damn it, not first!

As usual, your analysis is compelling (and matches that of the Court). The Court is saying the seizure must be reasonable and that, although the Terry standard for the seizure isn't met, the seizure is reasonable because the car was reasonably stopped and that stop extends to all the passengers.

To me, whether one characterizes this as a "abandonment" or a "clarification" of the first prong in Terry, the bottom line is the police have a slightly extended power at the expense of individual privacy as protected by the 4th Amendment.

That said, although the trend of expansion since Terry (as well as the erosion of the 4th in other ways) bothers me, I don't really have that strong of an issue with this decision.

The "reasonable suspicion" by most police nowadays is that everyone they pull over is potentially armed. They are trained to believe that until each and every person is "under control" and you absolutely know the armed/not armed status of each person, you are placing yourself at extreme risk.

There are many studies which show that the policeman gets shot or stabbed by the one person he fails to frisk and subsequently fails to control. They show police many videos of many situations like this.

I agree with SCOTUS here, and yes, I'm troubled by the 4th erosion (I think Cat's posts over the past few weeks are annotating a trend here), but I also believe that police do not have an obligation to take unnecessary risks.

While you may pull someone over for a traffic stop, and run the tag and license of the driver and come up with nothing, it's possible that others in the car have felony warrants and such - and you'll have no idea. Probable cause, either from NCIC or from visible behavior isn't always going to be available in time to stop an attack.

I find myself in general agreement with you. :eek: