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An expansion of Terry?

The course of true love never runs smooth, and neither does the 4th Amendment.  That was clear after the oral argument Tuesday in Arizona v. Johnson, the Supreme Court's latest foray into that thicket.

The case stemmed from a traffic stop:  a random license plate check revealed a vehicle had an insurance suspension, so the police pulled it over.  This was a "gang-related area," and one of the passengers in the car made the officer especially nervous.  After asking him a few questions, she requested that he get out of the car, patted him down, and found a gun. 

If we were talking about this happening to the driver, it would be pretty simple.  Under Terry, stop-and-frisk is a two-step process:  a reasonable suspicion of criminal activity warrants a stop, and a reasonable suspicion that the suspect is armed and dangerous justifies a frisk.  There was a reasonable basis for the stop, so the only remaining question would be the reasonableness of the officer's belief that the suspect was armed.

Except the suspect was a passenger.  When the case was first argued in the Arizona appeals court, Johnson argued that since he, as a passenger, had nothing to do with the cause for the vehicle being stopped, the officer's dealings with him were a "consensual encounter," and a consensual encounter doesn't give rise to a right to frisk, regardless of the suspicions of the office about whether the suspect is armed.

The Arizona court would have bought that, except that in the interim, the Supreme Court decided Brendlin v. California.  In that case, the defendant passenger was arrested by the police after an unlawful traffic stop, but the California Supreme Court held that just because the vehicle he was in was stopped didn't mean he was "seized" in the constitutional sense.  The US Supreme Court unanimously reversed, essentially saying, "What are you, nuts?"  (My post about Brendlin here.)

Which brings us back to Johnson.  The Arizona appeals court obviously couldn't go with the "consensual encounter" routine anymore; Brendlin held that the traffic stop constituted a seizure -- a stop, in Terry terms -- of the passenger.  But that's exactly what they did, holding that by virtue of the fact that the officer's conversation with Johnson had nothing to do with the reasons for the stop, that conversation had devolved into a consensual encounter, and with the end of the seizure came the end of the right to frisk.

The Supreme Court granted cert on the specific question of whether, in a traffic stop for a minor violation, the police can frisk a passenger even though they don't have any reason to believe he's engaged in criminal activity.  By the time argument rolled around, though, Arizona and the US Justice Department, as amicus, decided to go all-in, arguing that whether there was a stop or a seizure was immaterial:  the police should have the right to frisk anyone they reasonably believe is armed and dangerous, regardless of whether they have any reason to believe the person's engaged in criminal activity. 

That position met with a fairly hostile reception during the argument on Tuesday.  (Interestingly, the US solicitor pursued it with much more ardor than the state attorney general did.)  Kennedy, Ginsburg, Souter and Stevens openly expressed doubts, with Stevens labeling it "a rather extreme position," and Justice Souter describing it as "a pretty wide-open standard in the real world."  Even Alito seemed to be somewhat taken aback by it, and tried to nudge the government's attorneys back toward the traffic stop.

On the other hand, everybody, especially Breyer, had a problem with Johnson's lawyer's argument that the officer's dealings with Johnson were consensual.  In a consensual encounter, of course, the suspect is perfectly free to walk away.  That was actually the state's argument in Brendlin:  that the stop of the vehicle meant that the driver was seized, but the passengers were still free to leave.  The Court rightly noted the impracticality of that view in the real world.  A passenger is in fact tied in with the vehicle; if you're a passenger in a car stopped on I-71 halfway to Columbus, being "free" to get out and hoof it back to Cleveland isn't a viable option.

So what's going to happen?  I doubt if the Court's going to accept the government's position that Terry should be split, and that all a police officer needs to justify a frisk is a reasonable suspicion that the suspect is armed and dangerous.  In the context of a traffic stop, though, that's essentially what will happen.  Why?  First, because the Court has clearly indicated that a stop can be justified by the most minor traffic violation.  Most people would not equate a loud muffler with criminal activity, but for 4th Amendment purposes they are.  What's more, what the Court seemed to be edging toward in the argument on Johnson is applying the flip side of Brendlin to the passenger situation.  In Brendlin, the Court held that a passenger was "seized" for 4th Amendment purposes by the stop of the vehicle; in Johnson, they may well hold that that seizure satisfies the first step in the Terry analysis.

The fairness of that result is open to dispute.  After all, if a driver has a loud muffler, that's hardly the passenger's fault.  There is a certain logic to it, though; if the passenger stands in the same shoes as the driver for purposes of detemining the legality of the stop, then the passenger also stands in the same shoes as the driver for the purposes of determining the legality of a subsequent frisk.  And one thing the Court had consistently demonstrated is a concern for police officer safety in the traffic stop context.  In fact, I'd be somewhat surprised if it was a close decision in that regard.  It's possible that the Court will remand the case for a determination of whether the officer's suspicion that Johnson was armed was reasonable, because there's a legitimate question about that, but I wouldn't be surprised if the Court simply upholds the search.

It may be that the courts will apply this stringently, but it may also turn out that concern over police safety will lead the courts to rubberstamp virtually any frisk, even when the "reasonable suspicion" of the presence of a weapon is ephemeral at best; that is one area where the line between "reasonable suspicion" and "inchoate hunch" becomes especially blurred.  The latitude that upholding the search in Johnson would give police officers is probably best summarized by Souter's comment in oral argument, noting Ben Franklin's observation that "it's great to be a reasonable person because you can think of a reason for anything you do."

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