Oral argument: Dec. 9, 2008
Appealed from: Court of Appeals, State of Arizona, Division Two, (Sep. 10, 2007)
FOURTH AMENDMENT, CONSENSUAL ENCOUNTER, FRISK, SEARCH, SEIZE, TERRY V. OHIO
Lemon Johnson was a passenger in the back seat of a vehicle stopped for a mandatory insurance suspension. A police officer initiated a conversation with Johnson that was unrelated to the reason for the traffic stop. After asking him to exit the car, the officer conducted a pat-down search of Johnson because she was concerned for her safety upon noticing signs that Johnson may have been affiliated with a gang. During the pat-down search, the officer found a gun, which was used as evidence to convict Johnson at trial. Johnson argues that this evidence should have been suppressed because the search violated his Fourth Amendment rights: the officer had no reasonable suspicion that criminal activity was occurring, and therefore the pat-down search did not meet the standard articulated by Terry v. Ohio. In this case, the State of Arizona argues that police officers should have the right to conduct a pat-down search if there is a reasonable basis to believe the individual is armed and dangerous. Numerous organizations and all lower courts that have considered the issue have adopted this standard to increase officer safety. Johnson, however, maintains that expanding Terry in the way that Arizona proposes is unnecessary and would encourage discretionary pat-down searches in violation of the Fourth Amendment.
In the context of a vehicular stop for a minor traffic infraction, may an officer conduct a pat-down search of a passenger when the officer has an articulable basis to believe the passenger might be armed and presently dangerous, but has no reasonable grounds to believe that the passenger is committing, or has committed, a criminal offense?
In the course of a minor traffic stop, is the police officer’s reasonable belief that the vehicle’s passenger may be armed and dangerous a sufficient reason to conduct a search of the passenger for a concealed weapon, even where there is no reasonable suspicion of criminal activity?
On the night of April 19, 2002, Maria Trevizo, a police officer assigned to the state gang task force, was on patrol with two other officers in a neighborhood known for gang-related activity near Tucson, Arizona. See Arizona v. Johnson, 170 P.3d 667, 668 (2007). The officers stopped a vehicle after discovering it had a mandatory license suspension. See id. The officers did not suspect gang-related activity or other criminal conduct when they stopped the vehicle. See id. at 669. Trevizo observed Lemon Johnson, a passenger in the vehicle’s back seat, looking back at the officers and talking to the people in the vehicle’s front seats as the officers made the stop. See id. Trevizo believed this behavior to be “unusual” and “it made her nervous,” but she had no reason to believe that Johnson either was engaging or was about to engage in criminal activity. Id. Another officer told all the vehicle’s occupants to put their hands in view and asked if any of the occupants had weapons, to which they all replied no. See id. While another officer had the driver exit the vehicle so the officer could take his basic information, Trevizo noted that Johnson showed signs of gang affiliation: he was dressed entirely in blue, with a blue bandanna, a common sign of affiliation with the Crips gang. See id. at 668–69 Trevizo also noted that Johnson “had a scanner in his jacket pocket,” which “concerned” her because, although scanners are not illegal, it is unusual for people to carry scanners unless they are going to be involved in criminal activity or want to avoid the police. Id. at 669. Trevizo began talking with Johnson while he was still in the vehicle, and in response to her questions, Johnson said that he was from another area, where Officer Trevizo knew a Crips gang was active, and that he had been out of prison for about a year after serving time for burglary. See id.
At this point, Trevizo decided it would benefit her gang task force to gather intelligence from Johnson about his “possible gang” and its activities and decided “to isolate him from the other occupants of the vehicle in the hope he would contribute more information.” Id. Once Johnson exited the vehicle, Trevizo “asked him to turn around” and “patted him down for officer safety because [she] had a lot of information that would lead [her] to believe” that Johnson might be armed. Id. (alterations in original). Although Trevizo did not inform Johnson that she intended to pat him down when she asked him to get out, she decided to do so as he exited the vehicle. See id. During the pat-down search, Trevizo discovered a gun and arrested Johnson. See id. The trial court denied Johnson’s motion to suppress the evidence found in Trevizo’s pat-down search, and the jury found Johnson guilty of possession of a weapon by a prohibited possessor and possession of marijuana. See id. at 669–70.
Johnson appealed the trial court’s denial of his motion to suppress, and the Arizona Court of Appeals reversed his conviction. See id. at 674. The court of appeals found that Trevizo’s interaction with Johnson had become a consensual encounter separate from any seizure associated with the original traffic stop. See id. at 673. Therefore, the court of appeals ruled that, following the standard required for a search articulated in Terry v. Ohio, Trevizo had no right to conduct a pat-down search of Johnson if she did not have a reasonable suspicion that criminal activity may have been occurring. See id. at 670 (quoting Terry v. Ohio, 392 U.S. 1, 88 (1968)).
After the Arizona Supreme Court denied review without comment, Arizona appealed to the Supreme Court of the United States. The Supreme Court granted certiorari to determine whether a reasonable suspicion that an individual is armed and dangerous is a proper basis to conduct a protective pat-down search, absent a reasonable suspicion that criminal activity may be occurring. See Question Presented (No. 07-1122).
In Terry v. Ohio, the Supreme Court of the United States ruled that a pat-down search conducted by a police officer does not violate an individual’s Fourth Amendment rights if the officer reasonably believes“that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . .” Terry v. Ohio,392 U.S. 1, 30 (1968) (emphasis added). In this case, the Court will address whether suspicion of criminal activity is always a requirement for a pat-down search, or whether pat-down searches are valid in any reasonable circumstances when a police officer has a concern for her safety.
Arizona argues for the latter interpretation, contending that such a reasonable circumstance exists when an individual has been seized and the police officer has “a reasonable belief the person is armed and dangerous.” Brief for Petitioner, State of Arizonaat 9. Johnson counters that there is no basis for amending the standard articulated in Terry, and further argues that the Arizona Court of Appeals correctly found that because he was not seized during the encounter with Trevizo, there was no reasonable basis for the search. See Brief for Respondent, Lemon Johnson at 9–13.
Johnson notes that Terry recognized a pat-down search as a “serious intrusion on the sanctity of the person” and that “it is not to be undertaken lightly.” Brief for Respondent at 15 (quoting Terry v. Ohio, 392 U.S. 1, 17 (1968)). The adoption of a more expansive rule, Johnson argues, would have the practical effect of encouraging “the very sort of random and pretextual searches that the Fourth Amendment was adopted to prevent.” Id. at 33. It would open the door, Johnson claims, for police officers to search anyone they encounter and begin a consensual conversation with, simply “based on a reasonable suspicion that the individual may be armed and dangerous.” Id. at 14.
A group of thirty-six states (“Illinois”) that support Arizona’s rule appeals to the need to assure officer safety.Illinois points out that in 2006, “6,490 officers were assaulted and 8 were killed during traffic pursuits or stops,” and incomplete FBI data indicates that in 2007 “11 officers were killed during traffic pursuits.” Brief of Amicus Curiae the State of Illinois et al. (“Illinois”) in Support of Petitioner at 10–11. In the past 10 years, Illinois notes that “[f]irearms were used to commit 78 of the 100 murders of law enforcement officers during traffic pursuits and stops.” Id. In light of this and other data, Illinois argues that adopting Arizona’s rule “furthers an obvious and monumental public purpose” that “grossly outweighs” what they claim is a “relatively minor affront to personal liberty.” Brief for Illinois at 11–12.
While Johnson agrees that there is a strong interest in protecting officer safety, he argues that police officers already have the ability to take action to properly protect themselves when the criteria established in Terry are satisfied or when there is a need to establish control over the scene of an investigation. See Brief for Respondent at 32. In addition, the National Association of Criminal Defense Lawyers, arguing for the Arizona Court of Appeals' decision to be affirmed, notes that the police’s increased discretionary use of pat-down searches could “severely exacerbat[e] . . . police community tensions,” and discourage voluntary cooperation with the police, because the individual would know that cooperation could result in a search based upon nothing more than police suspicion that the individual might be armed. Brief of Amicus Curiae National Association of Criminal Defense Lawyers at 6 (quoting Terry, 392 U.S. at 14 n.11). As a result, Johnson argues, the expanded authority to conduct searches could harm, rather than help, police investigations. See Brief for Respondent at 33–34.
In arguing for Arizona’s rule that pat-down searches should be proper whenever an officer reasonably believes an individual is armed and dangerous, the National League of Cities maintains that because of inherent risks in traffic stops, police officers must have discretion in deciding when and how to direct passengers and respond to threats, from the beginning to the end of the stop. See Briefof Amici Curiae the National League of Cities et al. in Support of Petitioner at 2–3. Furthermore, amici Americans for Effective Law Enforcement (“AELE”) argues that affirming the lower court’s decision would create “an unworkable, impractical, and dangerous” rule that would “deter officers from acting with appropriate caution,” resulting in officers’ lives being “unreasonably endangered.” Brief of Amici Curiae Americans for Effective Law Enforcement, Inc. et al. in Support of Petitioner at 10. AELE further states that it is always better “for police officers to have a standardized rule that guides” their actions so they are “not . . . put to the choice of risking civil litigation or risking their lives.” Id. at 17–18.
Arizona v. Johnson is the second Fourth Amendment case from Arizona that the Court will hear this term; the Court heard oral arguments for Arizona v. Gant on October 7, 2008. In deciding this case, the Supreme Court may balance protecting individual liberties with the realities of police officer safety. The Court may decide to accept Arizona’s proposed rule, which has been adopted by “every state and lower federal court to reach the question,” Brief for Illinois at 13–21. Conversely, the Court may instead reiterate the standard in Terry. See Brief for Respondent at 11.
This case concerns a police officer’s right to search an individual for weapons based solely on the officer’s reasonable belief that the individual may be armed and dangerous, without a reasonable suspicion of criminal activity. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST. amend. IV. In general, an officer may conduct a “limited search of the outer clothing” of an individual without a search warrant if the officer reasonably believes “that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous . . . .” Terry, 392 U.S. at 30 (emphasis added).
The Scope of the Terry Exception
Arizona argues that an officer does not always need to find both Terry requirements—an officer’s reasonable belief that an individual is engaged in criminal activity and that the individual is armed and dangerous—in order to search an individual for a concealed weapon. See Brief for Petitioner at 11–12. It points to an exception in Terry,which provides for a “narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer . . . regardless of whether he has probable cause to arrest the individual for a crime.” See id.; Terry, 392 U.S. at 27. Arizona argues that this exception permits an officer to search a suspected individual for weapons upon reasonable belief that the suspected individual is armed and dangerous and presents a threat to officer safety. Brief for Petitioner at 11–12. Therefore, Arizona contends that an officer’s reasonable belief of criminal activity is not always a necessary condition for a search. See id.
Johnson, however, argues that the Terry exception cited by Arizona does not apply to his case because certain key elements are lacking. See Brief for Respondent at 49. He asserts that in the absence of probable cause, courts require at least one of the following elements as indicative of a threat to officer safety: (1) “a bulge under the . . . [individual’s] clothing,” or (2) movements indicating that the individual attempted to conceal a weapon. Id. at 49–50. SinceArizona never alleged nor proved any of these elements in the lower courts, Johnson argues that the Terry exception is inapplicable. See id. at 50.
Furthermore, Johnson contends that current Fourth Amendment doctrine sufficiently accounts for officer safety by empowering officers with the “broad authority to conduct protective searches.” Brief for Respondentat 17. First, Johnson points out that both Terry requirements tend to coexist in practice; thus, the Terry test will apply in most cases. See id. Johnson also cites Michigan v. Summers, which permits officers to take “‘command of the situation’ where a permissible search or seizure is occurring.” Id. at 19 (quoting Michigan v. Summers, 452 U.S. 692, 703 (1981)). He argues that the Court previously applied Summers to permit officers to search drivers and passengers at the “outset” of the traffic stop in order to “secure the scene.” Brief for Respondent at 20–22. In fact,Johnson argues that all of the cases cited by Arizona generally fall within the confines of Terry or Summers. See id. at 30–31. Therefore, he believes that there is no need to expand Fourth Amendment doctrine to protect officer safety. See id. at 24.
In addition, Johnson argues that Arizona’s liberal interpretation of Terry would infringe on an individual’s Fourth Amendment privacy interests. See Brief for Respondent at 23. Johnson maintains that the probable cause requirement exists to protect persons from arbitrary searches by officers. See id. at 25. These searches, Johnson explains, intrude upon a person’s privacy interest because the individual is under the control of the officer, and the search requires the officer to touch the individual’s body. See id. at 26–27. In the absence of probable cause and an individual’s express consent to search, Johnson argues that the two Terry requirements collectively protect against unreasonable searches. See id. at 25–27.
Arizona counters that, where a vehicle had been “lawfully stopped,” concerns for officer safety override any “[de minimis] additional intrusion” on a person’s privacy interests Brief for Petitioner at 12–13. In support of this argument, amicus United States contends that traffic stops are especially dangerous for officers because of the difficulty in assessing potential danger. See Brief of United States at 11–12. Thus, the United States argues that officers must protect themselves against any violence that may result from the uncovering of “‘evidence of a more serious crime’” as compared to the initial violation that caused the traffic stop. See id. (quoting Maryland v. Wilson, 519 U.S. 408, 413–414 (1997)). Arizona and the United States apply this weighing of interests in support of their position that officers should be able to conduct a search of an individual without probable cause if officers reasonably believe that an individual is armed and dangerous. See Brief for Petitioner at 12–13.
Was the Encounter a Seizure or Consensual?
In the absence of a search warrant, a legal seizure affords an officer the constitutional right to prevent an individual from leaving the scene. See Brief for Respondent at 27; see also Brief for Petitioner at 9. A seized individual is within the “control of the officer;” an officer may therefore require the individual to submit to a search for a concealed weapon. Brief for Respondent at 27–28.
Arizona disagrees with the Arizona Court of Appeals’ decision that the encounter was consensual, and instead maintains that Johnson was seized by Trevizo at the time of the questioning. See Brief for Petitioner at 17. Citing the recent Supreme Court case Brendlin v. California, Arizona argues that officers temporarily seize all occupants of a lawfully stopped vehicle. See id. at 10; see also Brendlin v. California, 127 S. Ct. 2400 (2007).Arizona contends that an officer can search Johnson, since a “passenger is seized equally with the driver” during a traffic stop. Brief for Petitioner at 12–13. It argues that Johnson was still seized during the gang-related questioning because the questioning “d[id] not prolong the stop.” Id. at 17. Furthermore, Arizona argues that courts consider the question of seizure from the perspective of a reasonable person. See id. at 19. A reasonable person in Johnson’s position would be seized, Arizona contends, because he would not believe that he was free to disregard or refuse an officer’s request to exit the vehicle and answer questions. See id.
Johnson, however, argues in favor of upholding the court of appeals’ holding that he was not seized at the time of his questioning. First, Johnson raises a procedural argument and contends that the issue of seizure should not be re-examined because the issue has not been raised on appeal. See Brief for Respondent at 35 & n.12. In addition, even if the Supreme Court decides to review the issue, Johnson further argues that the facts still support a finding of a consensual encounter because Trevizo never suspected Johnson of criminal activity, ordered Johnson to get out of the vehicle, or questioned Johnson on a matter related to the stop. See id. at 36. He also points to Trevizo’s testimony that “she was not exercising authority” over Johnson. Id. As such, Johnson contends that a reasonable person in Johnson’s situation would not find that he was seized and would not believe that he was compelled to submit to Trevizo’s request to exit the vehicle and discuss the gang. See id. at 38–39. Lastly, Johnson argues that case law does not support Arizona’s view that a passenger may be seized for the entire duration of a traffic stop. See id. at 42. Johnson believes that Arizona’s reading of Brendlin is incorrect because he views Brendlin as merely holding that seizure depends on whether a reasonable person believed he was free to leave. See id. at 46. Because the encounter was consensual, Johnson maintains that Trevizo’s search was invalid and violated the Fourth Amendment because she could not prove both Terry requirements. See id. at 35.
In addition, even if the Supreme Court finds there was no seizure, Arizona argues that the search is still valid because it was reasonable. See Brief for Petitioner at 9. Arizona argues that reasonability includes weighing the officer’s safety against inconvenience to the passenger. Id. at 23. Arizona contends that, in this case, the totality of the circumstances weigh in favor of officer safety. See Brief for Petitioner at 21–23. Arizona relies on the following facts to support its view that Trevizo reasonably believed that Johnson was armed and dangerous: Johnson’s dressing in a color known to be worn by a certain gang; his inability to present identification; his prior prison record; his possession of a police scanner, which is highly unusual; and the surrounding neighborhood where the traffic stop occurred. See id. at 16.
The Supreme Court’s decision in Arizona v. Johnson may advance Fourth Amendment doctrine concerning whether an officer’s reasonable belief that a person is armed and dangerous is sufficient for performing a search for concealed weapons. In this case, the Supreme Court may determine the weight of concern for officer safety against the weight of requirements traditionally needed for searches of individuals. The Court’s decision may clarify the law related to searches of individuals, and affect how officers pursue their law enforcement responsibilities.
Edited by: Courtney Zanocco