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Not as bad as it could have been

My legions of faithful readers are by now familiar with my dystopian view of where the Supreme Court is headed on 4th Amendment issues.  Despite the Court's unanimous decision in favor of the government on a 4th Amendment issue the other day in Arizona v. Johnson, the most appropriate response is probably a sigh of relief.

As I'd explained in my earlier post after oral argument, Johnson involved the frisk of a passenger.  The car had been stopped for a license plate violation, and the officer, after asking Johnson a few questions, had concerns about him being a gang member.  She asked him to get out of the car, and frisked him when he did, finding a gun.  The Arizona court had held that since the passenger had done nothing wrong, there was no "reasonable suspicion" that he'd engaged in criminal activity, and thus no basis for frisking him.

That follows the two-step analysis of "stop and frisk" articulated by Terry v. Ohio:  the police need a reasonable suspicion you're engaged in criminal activity to stop you, and then need a reasonable suspicion you're armed and dangerous to frisk you. 

Justice Ginsberg's opinion in Johnson doesn't reject that reasoning, but rejects the result, relying on three prior Supreme Court decisions:   the 1977 decision in Pennsylvania v. Mimms, which held that once the vehicle is legitimately stopped,  the police could lawfully remove the driver from the car; the decision twenty years in Maryland v. Wilson,  extending the same rule to passengers; and Brendlin v. California, the 2007 case which held that a passenger, like the driver, is "seized" within the meaning of the 4th Amendment when the car is stopped.

The last decision was the key.  The Arizona court had held that although the passenger might have been "seized" by the initial stop, by the time the officer began talking with Johnson, the encounter with him had become "consensual" because there was no longer any reason to believe that he'd committed any offense.  Johnson clearly holds that once the vehicle is stopped, the passenger is considered "seized" within the meaning of Terry for the duration of the stop.  In essence, they did exactly what I said they might in my earlier post:  "they may well hold that that seizure satisfies the first step in the Terry analysis." 

My big concern with Johnson was the government's argument:  they urged the Court to decouple the two steps in Terry, with the result that the police could frisk anyone as long as they believed they were armed and dangerous, even if they had no basis for believing that the person was engaged in criminal activity.  As I'd also indicated, that argument met with a fairly hostile reception in oral argument, and the opinion doesn't even deign to discuss it.  In fact, while the government's position would have applied to non-traffic situations, such as street encounters, Johnson is clearly limited to traffic stops.

That doesn't mean Johnson's a win for defendants; for the reasons I mentioned in my earlier post, the decision, coupled with traditional deference to concerns about police safety, could easily result in passengers being routinely frisked as long as the officer remembers to invoke the talismanic catch phrases, like "furtive movements."  The bigger problem is that given the ease with which a "traffic violation" can be detected -- how often do you use your turn signal when turning into your driveway? -- traffic stops any more occur at the whimsy of the police officer, and giving him more expansive powers once that stop is made simply whittles the 4th Amendment down a little more.


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