Please ensure Javascript is enabled for purposes of website accessibility

Justices mull car passenger searches

By: dmc-admin//December 15, 2008//

Justices mull car passenger searches

By: dmc-admin//December 15, 2008//

Listen to this article

Washington – The U.S. Supreme Court seems primed to hand down a ruling giving the police some authority to pat down car passengers during traffic stops without running afoul of the Fourth Amendment.

The case, Arizona v. Johnson, stems from a 2002 incident in which police stopped a car for a minor insurance infraction. During the stop, an officer noticed a passenger in the back seat, Lemon Johnson, looking at the squad car and whispering something to the other passengers.

The officer asked Johnson, who was wearing what the officer believed to be gang colors, to get out of the car, and he complied. The office then asked him to turn around so she could pat him down. She found a gun in his waistband and marijuana.

During Johnson’s trial on charges of illegal possession of the gun and drugs, he moved to suppress the evidence on the grounds that the pat-down constituted an illegal search because the officer had no reason to believe he was involved in a crime.

The trial judge denied the motion and Johnson was convicted.

But the Arizona Court of Appeals reversed the conviction, ruling that frisking Johnson absent suspicion of criminal activity violated his Fourth Amendment rights.

‘Common Sense Principle’

At oral arguments before the Supreme Court on Dec. 9, Arizona Assistant Attorney General Joseph L. Parkhurst said that allowing police to conduct reasonable pat downs of passengers after a car stop was “a common sense principle.”

Justice David Souter questioned how far the parameters of that principle extended.

“If an officer was going down the street and he saw an individual [and] said, ‘that guy looks like trouble’ [and] he pats him down. Is that a good pat down?” Souter asked.

“He would also have to possess articulable reasons that a reasonably prudent person would be satisfied with that this person is an immediate danger to him,” Parkhurst replied.

Justice Antonin Scalia seemed to agree that the pat down was lawful, but wondered if the state was relying on the wrong law.

“We have a whole separate line of cases apart from the Terry stop cases which allow officers to protect themselves by conducting a search of the surrounding area when they arrest somebody,” Scalia said. “And that justifies a pat down of the person that they arrest also, doesn’t it? Whether or not they think that he’s about to draw the gun and shoot them?”

“Correct,” Parkhurst answered.

“Why wouldn’t that line of cases be extendible to this kind of a situation?” Scalia asked.

“Shouldn’t [police] be able to ensure their own safety by patting down the people who have been stopped, whether or not they have an articulable suspicion that they are about to draw and shoot?”

The justices seemed less willing to adopt the argument put forth by the Justice Department on behalf of the state, which would allow searches whenever a police officer believes a parson may be armed — even in the absence of any suspicion that a crime was committed.

“It seems like the argument on the other side is predicated expressly on the notion that unless a police officer has suspicion of crime, he can just avoid dangerous people, like any of the rest of us can choose to avoid them,” said Toby J. Heytens, assistant to the solicitor general.

“May I ask you if the Department of Justice has ever taken this position before?” asked Justice John Paul Stevens. “It’s a rather extreme position.”

“We have certainly consistently taken the position that in the context of traffic stops it is constitutionally reasonable for police officers to perform Terry frisks whenever they have reason to believe that their safety is in danger,” Heytens replied.

Traffic Stop Seizure

Andrew Pincus, a partner at the Washington office of Mayer Brown, argued on behalf of Johnson.

Pincus’ argument that the seizure of passengers related to the traffic stop ended before the search of Johnson’s person drew tough questioning from the Court.

“So you’re standing there and the policeman is in front of you, and they have stopped the car, and the woman who is the policeman says, ‘I want to search you,’” Said Justice Stephen Breyer. “Do you think you’re free to leave?”

“No,” Pincus said.

“The issue in front of us is when you stop a person [and] that person thinks that he cannot reasonably leave, and you believe reasonably that he’s armed, can you pat him down?” Breyer said. “Asked that way … the answer is yes, if you don’t want to be killed.”

Stevens then asked: “Do you agree that if you lose on the seizure issue, you lose?”

“Even if the person was seized, it’s not clear to us that the Court’s precedents automatically permit a pat down … [without] independent reason to suspect criminal activity and present danger,” Pincus replied.

A decision is expected later this term.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests