On Monday, a unanimous Supreme Court reiterated its rule that a police officer may pat down the passenger of a car that was stopped for a traffic infraction, if the officer has reason to believe the passenger is armed and dangerous. The Court also added that the authority to conduct a patdown doesn’t end when police start asking about matters unrelated to the traffic stop.
Writing for the Court in Arizona v. Johnson (No. 07-1122), Justice Ginsburg pointed out that this is not exactly new law. Pennsylvania v. Mimms, 434 U.S. 106, held that police are allowed to ask the driver of a car to get out, after a lawful traffic stop. The interest in officer safety outweighed the “de minimis” additional intrusion of having the driver exit the car. Then, once the driver is out of the car, Terry v. Ohio, 392 U.S. 1, says he can be patted down if there’s reason to believe he’s armed and dangerous.
Maryland v. Wilson, 519 U.S. 408, said that the Mimms rule applies to passengers the same as to drivers. Passengers and drivers both have the same incentive to avoid being arrested for more serious crimes than the traffic violation, and have the same incentive to use violence to avoid such arrest. The interest in officer safety again outweighed the “minimal” additional intrusion of being asked to exit the car. Everyone’s already been seized, essentially, by the car stop.
Here, Officer Maria Trevizo, of Arizona’s gang task force, was part of a car stop for driving with a suspended registration. At the time of the stop, she had no reason to suspect any of the passengers of a crime. However, on approaching the car, she saw that the passenger Lemon Johnson wore Crips clothing, and had a police scanner sticking out of his pocket. When asked to identify himself, Johnson said her was from Eloy, Arizona, which Trevizo knew was a Crips gang location. Johnson also said he’d done prison time for burglary.
Trevizo wanted to ask more questions out of earshot of the others in the car, to see if she could get any info about the gang Johnson might have been in. So she asked him to get out of the car. Her observations so far, plus his statements, gave her reason to think he might be armed, so when he got out she started to perform a Wilson frisk. When she found a gun in his waistband, Johnson started fighting with her, and she handcuffed him. Johnson was later convicted at trial of, among other things, possession of a weapon by a prohibited possessor.
The Arizona Court of Appeals reversed his conviction, holding that Trevizo’s authority to pat him down ended when she started asking about matters unrelated to the traffic stop. Yes, he was initially detained pursuant to the traffic stop, but then the encounter devolved into a consensual conversation. As Johnson was no longer technically seized by the car stop, the police no longer had authority to conduct a patdown.
The Supreme Court held that the Arizona court got that wrong. Nothing ever happened that would have given Johnson reason to believe he was free to leave without police permission. He was seized by the car stop, and a reasonable person would understand that throughout the time the car is stopped, he isn’t free to just walk away. The mere fact that Johnson was being questioned about non-traffic-related matters wasn’t something that would change that understanding.
Moreover, the Arizona ruling just didn’t make sense. If it was to stand, then an officer who asked a passenger to step out of the car would have to first give the passenger a chance to walk away, before being allowed to pat him down. “Trevizo was not required by the Fourth Amendment to give Johnson an opportunity to depart without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her.”
Other writers out there are seeing this ruling as a travesty, another nail in the coffin of Fourth Amendment protections. Over at Simple Justice, for example, the mere reiteration of the existing Wilson rule is called “the evisceration of rights by baby steps.” It’s clear that such writers simply disagree with the greater value the courts have placed on officer safety, as opposed to the freedom from being patted down. Those are their values, and we can’t fault that.
But critics such as these are missing the real point of the case, which is that a traffic stop never devolves to a lesser encounter until either the traffic stop is over, or until the police say so. To us, this seems to be a far more troubling bright line. Certainly, situations can be envisioned in which a passenger would reasonably believe that he was free to leave, even though the stop wasn’t over and the officer might disagree.
We, for example, once took a cab to an important meeting across town. The cab driver, playing to type, showed a remarkable ignorance of the workings of a motorized vehicle, as well as the difference between the street and the sidewalk. One of New York’s finest swiftly stopped the cabbie before anyone (including us) got hurt. While the officer dealt with the cabbie, we simply walked away and caught another cab. Under this new ruling, however, it would have been appropriate for the officer to stop us. The officer could then even frisk us, if he thought the wallet in our suit jacket was a suspicious bulge.
That’s what you get with bright-line rules, though. One the one hand, you get the efficiency and most-of-the-time fairness of an easy rule for officers to remember and follow. But on the other hand, you lose case-by-case judgment, and wind up with exceptional situations of authorized injustice. Yet another pair of considerations for the ongoing balancing test that is the law.