At 10am EST the U.S. Supreme Court heard oral arguments in Arizona v. Johnson (07-1122), a case testing a police officer's authority to pat-down a passenger for weapons as he emerged from a car that had been stopped for a traffic violation. Coincidentally, late last night an Arizona county sheriff was shot in the abdomen when he stopped along a rural road in Thatcher, AZ to help a driver who had pulled over to the side. The tragic shooting of Graham County Sheriff Frank Hughes serves as a good reminder of why it is important for cases like Johnson to debate exactly what and who the law should protect.
Arizona v. Johnson involved a lawful routine traffic stop of a car in a Tucson neighborhood noted for gang activity. While one police officer questioned the driver about his car insurance, Officer Trevizo directed her attention to the passenger in the back seat of the car - a man wearing Crips gang colors and carrying a police scanner in his jacket pocket. When she asked him to step out of the car so she could ask him about gang activity, he voluntarily stepped out of the car, and then Officer Trevizo frisked him for weapons. She found a gun and marijuanna. The Arizona Court of Appeals found the search to violate Fourth Amendment rights, the Supreme Court of Arizona denied discretionary review and the state of Arizona appealed to the U.S. Supreme Court. CJLF wrote a brief supporting Arizona, which can be found here.
While the important issue at stake in the case -whether an officer confronted with a potentially "armed and dangerous" individual during a lawful stop may frisk the individual for weapons - was placed front and center by both Arizona and the federal government, the issue that seemed most troubling to the Justices was: when does a stop end, or is it possible for a lawful stop to become consensual?
Arizona v. Johnson involved a lawful routine traffic stop of a car in a Tucson neighborhood noted for gang activity. While one police officer questioned the driver about his car insurance, Officer Trevizo directed her attention to the passenger in the back seat of the car - a man wearing Crips gang colors and carrying a police scanner in his jacket pocket. When she asked him to step out of the car so she could ask him about gang activity, he voluntarily stepped out of the car, and then Officer Trevizo frisked him for weapons. She found a gun and marijuanna. The Arizona Court of Appeals found the search to violate Fourth Amendment rights, the Supreme Court of Arizona denied discretionary review and the state of Arizona appealed to the U.S. Supreme Court. CJLF wrote a brief supporting Arizona, which can be found here.
While the important issue at stake in the case -whether an officer confronted with a potentially "armed and dangerous" individual during a lawful stop may frisk the individual for weapons - was placed front and center by both Arizona and the federal government, the issue that seemed most troubling to the Justices was: when does a stop end, or is it possible for a lawful stop to become consensual?
Both Mr. Parkhurst for Arizona, and Mr. Heytens for the federal government, did a good job of articulating early on that because the seizure of Johnson had never ended there was no problem upholding the frisk based on Officer Trevizo's belief he might be armed and dangerous. Mr. Parkhurst wisely explained much like a prison inmate can consent to give information to prison guards but still remain in custody, Johnson had consented to talk to Officer Trevizo away from the vehicle and still remained legally seized. This argument could remove from Fourth Amendment analysis the Terry v. Ohio requirement that an officer have suspicion criminal activity is afoot.
Some Justices were troubled by the practical effects of this argument. Justice Stevens and Justice Souter engaged Parkhurst and Heytens in discussions about the extent of an officer's ability to frisk someone he approaches on the side of the road, or initially approaches for information. Could an officer frisk someone just because he believed he was dangerous? Or did the officer have to avoid the person altogether?
While Justice Souter did admit there was something fundamentally wrong with interpreting the Constitution so that officers would feel they had to avoid all dangerous individuals if they did not believe "criminal activity was afoot," he did express concern over the degree to which Arizona and the federal government wanted to extend the Terry rule. Justice Souter's problem with the reasonable suspicion standard advocated by the government was best summed up by the Benjamin Franklin remark, "it's great to be a reasonable person because you can think of a reason for anything you do."
But, for a majority of the Justices, this was not the big issue. The big issue was, as the Chief Justice put it early in the Respondent's argument, "[is this] like the rule of the Old West that the sheriff has to wait for the defendant to draw first?" Or, should an officer placed in an already dangerous situation have to wait for the defendant to act before the officer can pat-down to protect himself? Justices Roberts, Scalia and Alito did not appear to think so, and even Justice Breyer asked whether a police officer was just supposed to ignore facts like "a member of the Crips gang with a bulge in his pocket[,]" because the officer did not believe criminal activity was afoot. Officer shootings, like the one in Thatcher on Monday, appeared relevant to the Court's decision about whether a pat-down was justified.
But that's not all the Court discussed. Digression from the question presented in Johnson began early when Chief Justice Roberts asked both Arizona and the federal government if there could be a clear point in an encounter, initiated by a traffic stop, that changes the situation so that a pat-down is no longer justified. The Chief Justice appeared to be asking if, practically speaking, an initially valid seizure could cease without the officer clearly articulating that the vehicle's occupants were free to go. This is a tricky point, because the Court has never articulated exactly when a seizure, in the context of a routine traffic stop, comes to an end. Its could also be the deciding factor in Johnson. If the Court determines that Johnson was no longer seized, then any pat-down - without suspicion of criminal activity - will be harder to justify. But, if the Court determines Johnson was seized for the entirety of the stop, and the lower court got it wrong, the issue could become whether officers automatically have the right to pat-down someone believed to be armed and dangerous, or if the officer must still have some suspicion that criminal activity is afoot.
Of course, as shown by in shootings like the one that occurred in Thatcher, officers don't always have the luxury of making such calculated decisions.
Some Justices were troubled by the practical effects of this argument. Justice Stevens and Justice Souter engaged Parkhurst and Heytens in discussions about the extent of an officer's ability to frisk someone he approaches on the side of the road, or initially approaches for information. Could an officer frisk someone just because he believed he was dangerous? Or did the officer have to avoid the person altogether?
While Justice Souter did admit there was something fundamentally wrong with interpreting the Constitution so that officers would feel they had to avoid all dangerous individuals if they did not believe "criminal activity was afoot," he did express concern over the degree to which Arizona and the federal government wanted to extend the Terry rule. Justice Souter's problem with the reasonable suspicion standard advocated by the government was best summed up by the Benjamin Franklin remark, "it's great to be a reasonable person because you can think of a reason for anything you do."
But, for a majority of the Justices, this was not the big issue. The big issue was, as the Chief Justice put it early in the Respondent's argument, "[is this] like the rule of the Old West that the sheriff has to wait for the defendant to draw first?" Or, should an officer placed in an already dangerous situation have to wait for the defendant to act before the officer can pat-down to protect himself? Justices Roberts, Scalia and Alito did not appear to think so, and even Justice Breyer asked whether a police officer was just supposed to ignore facts like "a member of the Crips gang with a bulge in his pocket[,]" because the officer did not believe criminal activity was afoot. Officer shootings, like the one in Thatcher on Monday, appeared relevant to the Court's decision about whether a pat-down was justified.
But that's not all the Court discussed. Digression from the question presented in Johnson began early when Chief Justice Roberts asked both Arizona and the federal government if there could be a clear point in an encounter, initiated by a traffic stop, that changes the situation so that a pat-down is no longer justified. The Chief Justice appeared to be asking if, practically speaking, an initially valid seizure could cease without the officer clearly articulating that the vehicle's occupants were free to go. This is a tricky point, because the Court has never articulated exactly when a seizure, in the context of a routine traffic stop, comes to an end. Its could also be the deciding factor in Johnson. If the Court determines that Johnson was no longer seized, then any pat-down - without suspicion of criminal activity - will be harder to justify. But, if the Court determines Johnson was seized for the entirety of the stop, and the lower court got it wrong, the issue could become whether officers automatically have the right to pat-down someone believed to be armed and dangerous, or if the officer must still have some suspicion that criminal activity is afoot.
Of course, as shown by in shootings like the one that occurred in Thatcher, officers don't always have the luxury of making such calculated decisions.
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