Arizona v. Johnson
Bill Long 12/3/08
Docket No. 07-1122; Oral Arg. December 9, 2008
This criminal law Fourth Amendment search and seizure case has "reasonability" written all over it--i.e., it will probably lead the Court to articulate a "reasonable concern for officer safety" standard in deciding the case. However, somewhat ironically, since reasonability will be at issue, I think that the Court will divide right down the middle. They fundamentally don't agree on what "reasonability" is. I think the AZ Court of Appeals will be reversed, and the Court will say that the search that took place in this case was legitimate.
The facts are derived from the state's petition for certiorari. The arresting officer, Maria Trevizo, of the Oro Valley (Tucson) AZ Police Department, arrested Mr. Johnson as a prohibited possessor of a firearm. She is a member of the state gang task force and has attended extensive training on the subject. On April 19, 2002, she was on patrol with two other members of the state gang task force in a "Crips" area of Tucson. The officers initiated a traffic stop of a car for an insurance violation. Officer Trevizo approached the vehicle on foot, noting that Johnson, the back-seat passenger, kept his eyes trained on her. Another officer, Machado, initiated contact with the driver, who averred there were no weapons in the vehicle. Johnson had no identification with him, but had a police scanner in his jacket. Treviso also noted that Johnson's blue shirt, shoes and bandana weren't just the latest accoutrements for Tucson tango classes but were the "Crips" colors. Johnson told Trevizo that he had done time in prison for burglary and had been out for about a year.
Treviso asked Johnson to exit the vehicle, which he did. Her later explanation for this was that she wanted to talk to him apart from the other vehicle occupants to get some intelligence on the gang. Then she asked Johnson to turn around because she was going to pat him down. Her explanation to him was that she was doing this solely for officer safety because "I had a lot of information that would lead me to believe he might have a weapon on him." Her reason for the search was not based on suspicion of criminal activity. So, she patted down his exterior clothing and felt the butt of a weapon. Johnson became nervous and struggled a bit, and then Trevizo hancuffed him. A subsequent search of his person incident to arrest for weapons possession turned up a small amount of marijuana.
Treviso articulated the following circumstances that led her to suspect that Johnson might have a gun:
"(1) he watched the officers as they approached the vehicle instead of looking front like most traffic stop subjects; (2) he did not have identification; (3) he had a scanner in his pocket; (4) he was wearing blue Crips colors; (5) the traffic stop took place near a known Crips area; and (6) he told her he was a convicted felon."
She said it was the "totality of these circumstances" which led her to make the search.
At Trial and On Appeal
Johnson's attorney at trial moved to suppress the evidence collected, claiming it was the fruit of an unlawful search. The court denied his motion. On direct appeal, Johnson again argued for suppression, basing his position on the notion that the officer lacked reasonable suspicion to conduct a protective frisk of Johnson and, even if supported by reasonable suspicion, a protective frisk was unconstitutional during a "consensual encounter." Thus, there were two legal issues on the table: (1) must there be a suspicion of criminal activity for an officer to conduct a pat-down search when the violation at issue was a minor traffic infraction? and (2) how does one characterize the encounter between Johnson and the officer and what are the legal implications of that characterization? If it is an "investigational" stop an officer is permitted more latitude than if it is a "consensual encounter" between an officer and a citizen.
A three judge panel of the AZ Court of Appeals reversed the trial court (2-1). Their reasoning was as follows: Officer Trevizo lacked reasonable suspicion of criminal activity to conduct a protective frisk of Johnson. Even if there had been reasonable suspicion, a protective search was unconstitutional because the encounter had morphed from an investigative to a consensual encounter the moment that Johnson stepped out of the vehicle and was questioned. In the words of the court:
"when an officer initiates an investigative encounter with a passenger that was consensual and wholly unconnected to the original purpose of the routine traffic stop of the driver, that officer may not conduct a Terry frisk of the passenger without reasonable cause to believe ‘criminal activity may be afoot.'"
One judge dissented, taking the "totality of the circumstances" approach. This judge concluded that "Trevizo was lawfully in Johnson's presence, the encounter was nonconsensual, and the officer had a reasonable basis to consider him dangerous and therefore conduct a pat-down of his person." See how people disagree so easily on what is "reasonable"?
At the Supreme Court
How will the Supreme Court decide this one? I think the Court will agree with the lone state court judge. Why? Rather than this being an issue of "pure law," I think we have other societal concerns which will "trump" here. Those concerns? Well, we are sending officers into harm's way every day. Gangs are a menace to our society. Just as we practice preventive medicine, we ought to let officers practice a little "preventive" law because "all the signs" were there that Johnson and his friends were going to cause problems. Thus, the "normal citizen" has nothing to worry about on the issue. It will not empower police with license to conduct whimsical searches of law abiding citizens out for Sunday afternoon drives with their families.
But, as civil libertarians can persuasively argue, it does give that liberty to the police. "Suspicion" of personal danger is a fairly broad and amorphous category.
I think, however, with this Court and our times, the Court will reverse the AZ Court of Appeals. Probably 6-3, maybe even 7-2.