Arizona Vs Johnson Case Summary
Arizona v Johnson (2009) 129 S.Ct. 781
Date of Judgment: January 26, 2009
INTRODUCTION
In 2002, Lemon Montrea Johnson was the passenger in the backseat of a car stopped for a traffic violation. Johnson was charged with; inter alia, possession of drugs and possession of a weapon by a felon. These items were discovered during a protective pat-down search of Johnson. Johnson was convicted by the trial court. Johnson argued that his conviction should be overturned because the trial court was in error by denying his motion to suppress the evidence. He argued that he had been unlawfully “seized” because being a passenger in a vehicle does not automatically constitute “seizure.” He furthered argued that even if he had been “seized,” that by the time Officer Trevizo searched him he was no longer “seized” as their conversation had become consensual. Furthermore, the evidence should not be considered because the search violated his Fourth Amendment rights and because the …show more content…
officer had no reasonable suspicion that criminal activity was occurring as mandated by Terry v Ohio.
On September 10, 2007, the Arizona Court of Appeals overturned the conviction. The court concluded that Trevizo had no right to pat Johnson down even though she believed he was armed and dangerous. The court held that Johnson, although legally detained, had evolved into consensual conversation with officer Trevizo regarding his gang affiliation. This conversation was not connected to the traffic stop of the driver; therefore, the officer may not conduct a pat-down without reasonable cause to believe that “criminal activity may be afoot.” On appeal to the United States Supreme Court, the state argued that police officers should have the right to conduct a pat-down search if they believe the person may be armed and dangerous. On June 23, 2008 the United States Supreme Court granted the State’s petition for a writ of certiorari.
The question presented in this case is do police officers have the authority to “stop and frisk” a passenger in a motor vehicle temporarily detained upon police detection of a traffic infraction on the basis they believe the person may be armed and dangerous, even when there is no reasonable suspicion of criminal activity? The Supreme Court decided that yes an officer’s reasonable belief that a person is armed and dangerous is sufficient for performing a pat-down search. They established that a Terry “stop” is met when police lawfully detain a vehicle and its occupants on a traffic violation. The police do not have to believe anyone in the vehicle is involved in criminal activity. A Terry “frisk” is justified if police reasonably believe the person may be armed and dangerous. Although this case is based on conditions of a traffic stop, one has to wonder if this will open the door to intrusive searches by officers in varying situations.
FACTS
On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, members of Arizona’s gang task force, were patrolling in the Tucson neighborhood Sugar Hill, an area associated with the Crips gang. Around 9 p.m., they pulled over a vehicle after a license plate check revealed its registration had been suspended for mandatory insurance law. The vehicle had three occupants, the driver, a passenger in the front seat, and Lemon Montrea Johnson, respondent, in the back seat.
At the time of the stop, the officers had no reason to suspect anyone in the vehicle of criminal activity. The officers walked toward the car. Machado told the occupants to keep their hands in sight. He inquired if there were any weapons in the vehicle, all three said no. Machado instructed the driver to get out of the car. Gittings talked to the front seat passenger, who remained in the vehicle throughout the duration of the traffic stop. Machado interviewed the driver regarding the insurance and registration. Trevizo dealt with Johnson.
As Officer Trevizo approached the vehicle, she noticed Johnson alternately watching the officers and commenting to the front seat passenger. This alerted Officer Trevizo. When she drew closer to the vehicle, she noticed Johnson wearing a blue bandana, the chosen color of the Crips. Additionally, she observed that Johnson had a police scanner in his jacket, which she found to be unusual and cause for concern, as” most people” would not carry a scanner “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” Trevizo questioned Johnson, who did not have any identification with him but he did provide his name and date of birth. He also stated he was from Eloy, Arizona, a known home to the Crips. Johnson revealed he was a convicted felon who had served prison time for burglary. These factors led Officer Trevizo to believe Johnson may have been a gang member. Officer Trevizo wanted to gather intelligence about the gang Johnson may have been in, as gathering intelligence was one of her main missions in the task force. Officer Trevizo wished to question Johnson away from the others and asked Johnson to get out of the car. Johnson complied. Officer Trevizo was trained extensively as a gang task force officer and knew gang members generally tend to carry a gun. She was concerned for her safety, but did not have a reasonable indication that “Johnson was engaged in or about to engaged in criminal activity.” When Johnson got out of the car, Trevizo “patted him down for officer safety.” While patting Johnson down, Trevizo discovered a gun. At that time, Johnson began to struggle. Officer Trevizo hand cuffed Johnson.
PROCEDURAL BACKGROUND
A. Trial Court
Johnson was charged with possession of a weapon by a prohibited possessor, possession of marijuana, and resisting arrest. On October 31, 2005, Johnson filed a motion to suppress evidence found on his person during the pat-down search. The motion was denied. In November, 2005, Johnson was found guilty of the weapons charge as well as possession of marijuana, but not of resisting arrest. He was sentenced to eight years and one year concurrently.
B. Arizona Court of Appeals
Johnson appealed. The Arizona Court of Appeals in State v Johnson reversed the conviction. The majority held that Johnson was lawfully detained at the time of the stop; however, the conversation between Trevizo and Johnson had turned into a consensual one that was unrelated to the traffic stop. Since Trevizo had no indication that criminal activity was occurring, she had no right pat Johnson down even if she believed he was armed and dangerous.
The court referred to Terry v Ohio finding that a Terry stop allows officers to conduct a pat-down search in order to protect the officers, a consensual search does not as they stated in Ilono H:
“Terry and its Supreme Court progeny addressed the propriety of a pat-down search exclusively in the context of a lawful investigatory stop. We do not read those cases to authorize a pat-down search as part of a mere consensual encounter--even when an officer may have grounds to believe the targets of the encounter are potentially armed and dangerous.”
The court also drew upon the Supreme Court’s holding in Brendlin v California to determine if Johnson had been lawfully seized. In Brendlin v California, “a passenger is seized when the vehicle in which he or she is riding in is lawfully stopped by police. However, Johnson contended that even though he had been seized that was no longer the case because it had turned into a “consensual encounter before Trevizo patted him down.” The court cited cases that stated a traffic stop may become consensual “when officers return the license or registration to a stopped driver, issue the driver a citation or warning, or tells the driver he or she is free to go” or “asks questions without further constraining the driver by an overbearing show of authority.” The court could not find any case law to establish that point with a passenger, but they reasoned that common sense suggests that at some point the passenger should be free to walk away. To decide when that point was, they applied a standard of reasonableness. The court elaborated on what was a consensual encounter. They considered a consensual encounter is if a person cooperates with the police voluntarily, answering non-coercive questioning. Additionally, if that person is free to leave at any time, he or she is not seized under the Fourth Amendment. Furthermore, the court stated that the encounter would not be consensual if the person did not feel free to leave. In Johnson’s case, the reason Officer Trevizo wished to speak with Johnson to learn more about his gang affiliation, not about the traffic stop and Trevizo testified that Johnson was free to leave at any time. The court stated that Trevizo could have ordered the passengers out of the car, but she did not. Trevizo had also stated that Johnson could have refused to get out of the car. Arizona case law agrees that a Terry stop can evolve into a consensual encounter as in State v Navarro. In Navarro’s case, a suspect in a shooting was taken into custody during a valid Terry stop, but the court determined it evolved into a consensual encounter because the suspect had not been “confront[ed] and surround[ed] at the initial detention” His handcuffs were removed and he voluntarily agreed to go (unfrisked and in the officer’s front seat) down town with the officer to talk about the shooting. In comparing the cases, the court believed Navarro was subjected to a greater level of coercion than Johnson. After examining every aspect of Johnson’s encounter with Trevizo, the court determined that Johnson’s getting out of the car to talk to Trevizo was consensual. They stated any “reasonable person in Johnson’s position and under these circumstances would have felt he could have remained in the vehicle.” They acknowledged that Trevizo had a reason to believe Johnson was armed and dangerous (clothing, scanner, hometown) but that fact alone did not give her the right to pat Johnson down in a consensual encounter. They determined that the trial court made an error when they chose not to suppress the evidence found. They reversed Johnson’s convictions and sentences and remanded the case for further proceedings. Judge Espinosa dissented. He found it unrealistic to conclude that just because Trevizo did not use coercion and Johnson volunteered to talk to her, made the encounter evolve into a consensual encounter. Consequently, Trevizo, fearing for her safety and the safety of others, could not legally conduct a pat-down search. The dissent noted that in Ilono H. the right to conduct a pat-down search should be dependent on the legality of the original Terry stop. Additionally, the dissent stated Arizona courts had many cases affirming the right of an officer to conduct a pat-down search when there is reasonable concern for his safety, as in State v Riley where a passenger was patted down during a traffic stop, in State v Valle where a passenger was patted down after he reached for his waistband when he was asked if he had a weapon, and in Adams v Williams that stated an “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” The dissent continued that this was a legal traffic stop and since Officer Trevizo believed Johnson was armed and was a threat to her as well as the others; therefore she had the right to conduct a pat-down search of Johnson. The Arizona Supreme Court denied review.
C. United States Supreme Court The State of Arizona appealed. The United States Supreme Court granted certiorari and reversed the judgment of the Arizona Court of Appeals. They began by looking at Terry v Ohio. The police must have a reasonable belief that a person is engaged in criminal activity in order to stop him or her and a reasonable suspicion that the person temporarily detained is armed and dangerous in order to frisk him or her “stop and frisk.” “Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a pat-down is constitutional.” With traffic stops being short in nature, similar to the detention authorized in Terry, the threat of danger to the police officer is heightened who is authorized to reduce the risk by taking “unquestioned command of the situation.” To elaborate on Johnson being in a Terry situation, the court referred to Pennsylvania v Mimms which held that it does not violate the Fourth Amendment “because the government's "legitimate and weighty" interest in officer safety outweighs the "de minimis" additional [**699] intrusion of requiring a driver, already lawfully stopped, to exit the vehicle.” Once outside the vehicle, Terry v Ohio states the driver can be then be patted down if there is suspicion he is armed and dangerous. The Mimms rule pertains to passengers as well as to drivers. They both have the same motivation to steer clear of being arrested for more significant crimes than traffic related offenses they have the same motivation to use violence to avoid such arrest. The safety of the officer outweighs the “minimal” intrusion of being asked to get out of the car and all the occupants of the vehicle have already been seized by nature of the car stop. The Supreme Court held that the Arizona court was in error in believing that Trevizo and Johnson’s encounter had evolved into a consensual encounter. Trevizo had not told Johnson he was free to leave nor did she inform him he did not have to cooperate with her and answer her questions. In other words, she did not give Johnson any reason to believe that her interrogation was consensual. Furthermore, a lawful roadside stop begins when the vehicle is pulled over and ends when police no longer need to control the situation at which time they inform the driver and passengers they are free to leave. A reasonable passenger would understand that as long as the car was seized, he was seized as well. The fact that Johnson was being interrogated about matters other than traffic would not change that understanding. Nothing had happened in the encounter before the frisk that would lead Johnson to believe he was free to leave without the officer’s permission. In a unanimous decision written by Justice Ruth Bader Ginsburg, the Supreme Court reversed the Arizona Court of Appeals. Arizona v Johnson was reversed and remanded. The Court held that Johnson’s encounter was not consensual and did not violate his Fourth Amendment rights. The court opined: valid traffic stops give officers the right to detain the driver and passengers for the duration of the stop; drivers and passengers may be removed from the vehicle with no additional justification; occupants may be asked for identification; if the officer reasonably believes the person may be armed and dangerous, he may conduct a pat-down search (even if he does not believe the person has been or is engaged in criminal activity); officers may inquire or converse about matters other than the traffic stop without it turning in to a consensual encounter as long as it does not “meaningfully prolong” the traffic stop.
LEGAL BACKGROUND The Fourth Amendment to the Bill of Rights of the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” When the Fourth Amendment law was created, no one could have predicted the controversy that would follow in this era of mobility. The first time the Court had to address how the Fourth Amendment applies to searches of automobiles was in 1925, Carroll v United States.
Two men were suspected of bootlegging. The police pulled them over and discovered illegal liquor in the trunk of their automobile. The defendants argued there was no warrant served allowing police to search their vehicle, therefore, the evidence should be suppressed. The Court disagreed, reasoning it was impractical to obtain a warrant due the mobility of an automobile. The Court noted difference between buildings and automobiles. Automobiles have the ability to leave the jurisdiction, taking the evidence with them, before a warrant could be obtained. The ruling in Carroll v United States enacted warrantless searches of vehicles are permissible if there was “probable cause” to believe contraband could be in the vehicle and belief that the vehicle could be moved before the officer could get a warrant. This became known as the “automobile
exception.” The Court had created distinct guidelines for searching, with or without warrant. Now they needed to determine a clear definition of seizure. The benchmark case to define seizure is Terry v Ohio. The “stop and frisk” procedure was formally created in the case of Terry v Ohio. In October, 1963 a police officer observed two suspicious acting men standing on a street corner. One of the men would leave, walk down the street, look carefully in store windows, continue walking, turn around and look in the same windows again, and return to the corner to talk to the other man again. The second man did the same thing. In fact, they went back and forth six times. The police officer found this behavior highly bizarre and believed they were going to rob the store they had been observing. This led him to believe they were probably armed as well. He followed the men around the corner, where they were meeting with a third man. He approached them and asked their names. They mumbled incoherently. The officer grabbed the man in the middle (Terry) and patted down the outside of his clothing. He found a pistol in the left breast pocket of his jacket, but he could not retrieve it, so he asked them to go into the store. He removed Terry’s jacket and retrieved the pistol. The officer patted down the second man and found a pistol on him as well. The third man did not have a weapon on him.
The men were taken into custody and charged with carrying a concealed weapon. Terry moved that the evidence should be suppressed as the evidence found was the result of an illegal search which violated his Fourth Amendment rights. The judge denied this motion stating that the officer’s experience granted enough cause to conduct an interrogation. The defense appealed to the Supreme Court.
The main issue the Supreme Court had to deal with was whether or not Terry’s Fourth Amendment rights had been violated by unreasonable search and seizure. They held what came to be known as “stop and frisk,” which contained two parts. First, an officer may stop a person if he has “reasonable suspicion,” based on articulable facts that the person has committed or is in the process of committing a crime. The existence of reasonable suspicion depends on the overall view of the circumstances, including the” information known to the officer” and any “reasonable inferences to be drawn at the time of the stop.” This “investigative stop” does not require “probable cause” found the Fourth Amendment’s warrant clause. Probable cause in short is "a reasonable belief that a person has committed a crime.”
''In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”
A person, within the meaning of the Fourth Amendment, is seized “whenever a police officer accosts an individual and restrains his freedom to walk away.” They also determined that patting down the outer clothing is a “search” under that Amendment. Second, to proceed from the “stop” to the “frisk” “a reasonably prudent officer must believe that he or others are in danger, then he may make a reasonable search of the person that he believes is armed and dangerous, regardless if he is certain the person is armed or regardless of whether or not he has cause to arrest the person.” They stated that police must have probable cause and when possible have a warrant to search. In on-the-spot cases, however, it is not practical to obtain a warrant. The officer in the Terry case did have reason to suspect the men were armed. Therefore, the Supreme Court affirmed Terry’s conviction. Elaborating on whether or not a person has been seized is found in United States v Mendenhall. The Court held that a person is seized “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." On February 10, 1976, Sylvia Mendenhall flew in to the Detroit Metropolitan Airport on a flight from Los Angeles. DEA agents observed her behavior as suspicious as if she were possibly carrying illegal drugs. The agents approached her and asked for identification and her airline ticket. Her airline ticket showed her name as “Annette Ford.” When questioned, she responded she just felt like using that name. Agent Anderson asked Mendenhall to go with him to the airport DEA office. She did. He asked her if she would allow him to search her handbag, clearing stating she did not have to if she did not want to. She handed him the handbag. A female officer arrived to search her person. Before proceeding, the officer asked Mendenhall if she consented to being searched which she responded she did. When heroin was found, she was arrested. The District Court denied Mendenhall’s motion to suppress, since she had consented to the search. The question to the Supreme Court was whether or not Mendenhall was “seized” when the DEA agents first approached her and requested her identification. The Court concluded that a person has been “seized” if considering all the circumstances, a reasonable person in that situation, would believe he did not have the freedom to leave. According to Mendenhall, without “reasonable suspicion” law enforcement may make consensual contact with a person. The person does don have to answer any questions. As long as he or she is free to walk away, the encounter does not violate any liberties granted in the Fourth Amendment. In Pennsylvania v Mimms, the Court held that an officer may order a driver out of the car, provided the traffic stop was lawful. Two Philadelphia policemen were patrolling when they noticed a car with an expired license. They pulled the car over to ticket the driver for driving with expired tags. One of the officers asked the driver, Mimms, to step out of the vehicle to provide his license and registration. Upon doing so, the officer noticed a “bulge under his jacket.” The officer frisked Mimms and found a loaded 38-caliber revolver. Mimms was charged and convicted with carrying a concealed deadly weapon and unlawfully carrying a firearm without a license in the trial court. Mimms moved to suppress the evidence. The Pennsylvania Supreme Court reversed the conviction after determining that the way the gun was discovered was a violation of the Fourth Amendment. They held that the officer’s request for Mimms to get out of the car was an unlawful seizure, protected against in the Fourth Amendment. “This was so because the officer could not point to “objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.” They continued that the officer should have never had the opportunity to notice the bulge; therefore, the search should have never taken place.
The United States Supreme Court did not agree with the Supreme Court of Pennsylvania. The Court referred to Terry v Ohio as setting the standard of whether "the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate" there is little doubt that the officer was justified. The Court stated “the officers safety outweighs the additional intrusion of the driver to get out of the car which was “de minimis” since he was already detained by the traffic stop.” The Court reversed the decision of the Pennsylvania Supreme Court.
Maryland v Wilson extended the ruling of Pennsylvania v Mimms that an officer may order the driver out of the car, to passengers as well. A Maryland state trooper pulled over a speeding car on I-95 in Baltimore County. The officer noticed the passenger, Wilson, sweating and appearing to be very nervous. The officer ordered Wilson to get out of the car. When he did, a quantity of cocaine fell on the ground. Wilson was charged with possession of cocaine with intent to deliver. The Baltimore County Circuit Court granted the motion to suppress the evidence stating that ordering Wilson to get out of the car violated his Fourth Amendment rights, constituting an unreasonable seizure. The Maryland Court of Special Appeals affirmed.
The United States Supreme Court had to decide whether or not the ruling in Mimms should be extended to include passengers. The Court held that the ruling should extend to the passengers as the “additional intrusion of exiting the vehicle as “de minimis” in comparison to the officer’s safety.” The Court reasoned that a passenger would have the same motivation as a driver prevent additional crimes from being discovered during the stop, thereby, bringing the threat of violence from the passenger. The Arizona Court of Appeals relied on two Arizona cases they felt set precedent in this case, State v Navarro and In re Ilono H. In Navarro, a shooting had taken place. A few hours later, police stopped a car near the scene of the shooting. One of the passengers met the description of the shooter. He was handcuffed then questioned by the police. After conversing with the police, they removed the handcuffs and asked Navarro to go with an officer to the police station. Navarro agreed to go with the officer. He was allowed to sit, unrestrained, in the front seat with the officer. Navarro was not told he was free to go, nor did he express a desire to leave. At the police station, Navarro was left in the interrogation room unattended, while the officer went to buy him a drink. Navarro agreed to have his testimony taped, his photograph taken, and to be fingerprinted. Navarro signed consent forms and admitted he was aware of his Miranda rights. This led to the conviction of Navarro. Navarro argued the evidence was illegally obtained. Navarro argued the legal detention had evolved into an illegal arrest when he went with the officer to the station. The court held that Navarro was neither in custody, nor under arrest when he agreed to go to the police station because “under the circumstances, a reasonable, innocent person would have felt free to decline the officer’s request to accompany him for questioning downtown.”
In Ilono H., two policemen approached five people in a park who were known for drug activity. They were dressed in red, a color associated with gang activity. After talking with the individuals, officers conducted pat down searches of the youth because gang members often carry weapons. The pat-down revealed Ilono had a 40-ounce beer on him. He was arrested for illegal possession of alcohol. In a search incident to the arrest, cocaine was found in Ilono’s pocket. Ilono was convicted.
On appeal to the Arizona Court of Appeals, the court determined that a Terry frisk is only allowed when the officer believes the person is, or will be in the near future, engaged in criminal activity. The court found that this was a consensual encounter, which an officer may initiate but it may be terminated at any point if the person so desires. The court held that the officers did not have a right to make an investigatory stop because they had no reasonable belief Ilono had committed or was committing a crime; therefore, the pat-down search was illegal in this consensual encounter. The two most recent Supreme Court cases setting important precedent in Arizona v Johnson is Knowles v Iowa and Brendlin v California. In Knowles v Iowa, Knowles was pulled over for speeding. In lieu of an arrest, the officer issued Knowles a citation. After issuing the citation, the officer searched the vehicle. He found marijuana along with a pipe and charged him with possession. The issue at hand was, considering the officer had not made an arrest, did he have the authority to conduct the search consistent with the Fourth Amendment? The Court said “no.” The issue at hand was not the subject referred to by the Court in Arizona v Johnson. The issue brought up was that the Court in that case stated “that officers who conduct ‘routine traffic stop[s]’ many ‘perform a pat-down of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” In Brendlin, the Court held that a passenger is seized, according to the Fourth Amendment, just as the driver is seized. On November 27, 2001 in Sutter County, California, Bruce Brendlin was a passenger in a vehicle pulled over for an expired registration. The officer had inquired about the registration earlier in the day while the car was parked. He had been informed that the renewal was being processed and the temporary registration was displayed in the back window was legal. While addressing the driver, Karen Simeroth, the officer recognized Brendlin as one of the “Brendlin Brothers.” The officer was certain he was a parole violator. After verifying that indeed Brendlin was a parole violator, the officer called for backup, ordered Brendlin out of the car at gunpoint, and arrested him and the driver. In the search incident to arrest, the officer found a syringe cap on Brendlin, syringes and marijuana on Simeroth, and methamphetamine along with equipment used to manufacture the drug in the vehicle. Brendlin argued to suppress the evidence stating that he was unlawfully seized by the traffic stop because the officer did not have probable cause to make the stop. Brendlin was denied by the trial court as they stated Brendlin was not seized until the officer ordered him out of the car and therefore did not have the right to challenge the legality of the stop. The California Court of Appeals reversed the decision made by the trial court. This court found that Brendlin was seized by the traffic stop; however, they determined the traffic stop was illegal. The United States Supreme Court had to decide whether or not a passenger is seized, according to the Fourth Amendment, in a traffic stop. The Court used the analogy of “whether a reasonable person in Brendlin’s position when the car was stopped would have believed himself free to ‘terminate the encounter’ between the police and himself.” The Court held “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.” The Court explained that a traffic stop limits the actions of the passenger just as it does the driver and that the officer initiating the traffic stop “acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely.” Therefore, the Court concluded that the Brendlin was seized by the traffic stop “despite the fact that he was merely a passenger and not the target of the stop itself,” consequently he did have the right to challenge if his Fourth Amendment rights had been violated.
COURT’S RATIONALE Before Johnson, according to Terry v Ohio, law enforcement was allowed to detain a person briefly if they believed he is was in the process of committing a crime or had committed a crime. Additionally, if the officer believed the detainee was armed and dangerous, the officer was allowed to conduct a pat-down of the detainee’s outer clothing to ensure he had no weapons on him.
The Arizona Court of Appeals interpreted the Terry ruling did not apply to a person involved in a consensual encounter if the officer did not believe criminal activity was occurring, even if they believed he was armed and dangerous. The question this court asked was Johnson “seized” when he was frisked or had the encounter turned into a consensual conversation? They did refer to the United States Supreme Court’s ruling in Brendlin v California that a passenger is “seized” during a traffic stop, however, they noted that the Court did not designate when the seizure ended. They reasoned that “common sense” would allow that there must be a point in time where the passengers in the vehicle are free to leave and that “their fate is not entirely tied to that of the driver.” They further compared this case to In re Ilono H. and reasoned that since Johnson was engaging in conversation unrelated to the traffic stop with Officer Trevizo, it had evolved into a separate consensual encounter. The court emphasized that Officer Trevizo believed Johnson was free to terminate the encounter at any time. The court also compared Johnson to Navarro. They determined Navarro had been subject to a greater level of coercion that Johnson had been and that the reasonable person in Johnson’s position would have believed he was free to stay in the vehicle. Furthermore, since Officer Trevizo had no suspicion that Johnson was involved in criminal activity, she had no right to frisk him, even if she believed he was armed and dangerous. Since the court had determined the encounter was consensual, they held that the evidence found should be suppressed.
Judge Philip Espinosa dissented stating that the majority had placed police in greater danger. Judge Espinosa pointed out the language of Ilono H. stated a pat-down search should rely on the legality of the original stop and that in this case the original stop was legal. He also pointed out that Arizona courts had long acknowledged the right of an Arizona officer to conduct pat-down searches when he has a “reasonable concern for his safety.” Since Officer Trevizo did have a concern for her safety and the stop was legal, the dissent concluded the search was lawful and the evidence should not be suppressed. In a unanimous opinion written by Justice Ginsburg, the Court established that an officer may pat-down a passenger in a vehicle during the course of a traffic stop if the officer has an articulable suspicion to believe that person is armed and dangerous.
ANALYSIS
The Fourth Amendment is critical when it comes to protecting the rights of individuals from unreasonable seizures and searches. Johnson’s case required the Court to set a balance between these rights and the safety of law enforcement. The Supreme Court had already made exceptions to warrantless searches in Terry v Ohio. This Johnson decision expanded the Terry rule of ”stop and frisk” to traffic stops. The Court reasoned that traffic stops indicate to a reasonable passenger that he is “seized” along with the passenger for the duration of the stop. Additionally, the Court noted that traffic stops are “fraught with danger to police officers.” Unlike Terry, however, no longer do police need to believe the detainee is engaged in or has been engaged in criminal activity, they just need to “reasonably suspect” the person subjected to the pat-down is armed and dangerous.
Conclusion
The significance of this holding is that it increased officer safety by allowing them to pat-down a person, “seized” by a traffic stop (be it driver or passenger), provided the stop is legal and the officer has a reasonable suspicion that the person may be armed and dangerous. The Supreme Court has always faced the challenging job: balancing individual liberties with need for law and order. Fourth street advocates state this is another nail in the coffin of our Fourth Amendment rights. As with any expansion of police authority, there is always the chance of abuse of power. It is possible some police will abuse this power, using pat-downs during routine traffic stops in the hopes of turning a speeding ticket into something more interesting. Could Johnson eventually apply to any person the police may confront and/or detain? Pat-down searches are intrusive, humiliating, and embarrassing. Does this give law enforcement to pat-down anyone, anywhere under the disguise of officer safety? Will this lead to targeting and profiling? Will police be able to ignore the plastic baggie found while searching for weapons? Furthermore, will this prevent individuals from voluntarily interacting with police, knowing they may be frisked? Time will tell. On the other hand, officer safety is paramount. Not allowing officers to search occupants, within the context of a traffic stop, for weapons when there may be a threat to their safety would cripple their ability to perform their job effectively. Johnson was fresh out of prison, wearing gang colors, and carrying a police scanner. Even to an untrained civilian, it would seem common sense to frisk Johnson. In this case, highly trained Officer Trevizo took the chance that the evidence may have been suppressed, but that chance may have saved her life as well as the other officers. If Johnson had been allowed to leave the scene with the weapon, other lives were in jeopardy. The fact that the everyday law abiding citizen may face an intrusive pat-down seems a small price to pay for protecting the law enforcement that are sworn to protect and serve.
The bottom line is the Supreme Court unanimously decided that officer safety comes first. It is what it is.
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[ 1 ]. State v Johnson, 170 3d 667, 668,674 (Ariz. Ct. App, 2007).
[ 2 ]. Id.
[ 3 ]. Id. at 669.
[ 4 ]. Id.
[ 5 ]. Id. at 668.
[ 6 ]. Id. at 671.
[ 7 ]. Id.
[ 8 ]. Bill of Rights Amendment IV, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[ 9 ]. Terry v Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The court held that an officer is justified in conducting a limited search of persons whom he suspects may be armed and dangerous in order to discover any weapons which might be used to assault him or others nearby, even if they have no suspicion that the passenger has committed any crime.
[ 10 ]. Id. at 667.
[ 11 ]. Johnson, 170 P.3d at 669.
[ 12 ]. Id.
[ 13 ]. Johnson, 170 P.3d at 667 (quoting Terry v Ohio, 392 U.S. 1, 30 (1968)).
[ 14 ]. Arizona v Johnson, 128 S. Ct. 339, 172 L. Ed. 2d 14 (2008).
[ 15 ]. Id.
[ 16 ]. Id.
[ 17 ]. Id.
[ 18 ]. Johnson, 170 P.3d at 668.
[ 19 ]. Id.
[ 20 ]. Id.
[ 21 ]. Joint Appendix at 29, Johnson, 128 S. Ct. 2961 (No. 07-1122).
[ 22 ]. Joint Appendix at 14.
[ 23 ]. Id. at 15.
[ 24 ]. Id. at 31.
[ 25 ]. Id. at 42-43.
[ 26 ]. Id.
[ 27 ]. Id. at 12.
[ 28 ]. Id. at 17.
[ 29 ]. Id. at 16.
[ 30 ]. Johnson, 170 P.3d at 667, 669.
[ 31 ]. Id.
[ 32 ]. Joint Appendix at 19, Johnson, 128 S. Ct. 2961 (No. 07-1122).
[ 33 ]. Id.
[ 34 ]. Johnson, 170 P.3d at 669.
[ 35 ]. Joint Appendix at 10, Johnson, 128 S. Ct. 2961 (No. 07-1122).
[ 36 ]. Id. at 29.
[ 37 ]. Id. at 20.
[ 38 ]. Johnson, 217 Ariz. 60, 170 P.3d at 669-670.
[ 39 ]. Id.
[ 40 ]. Id. at 669-670.
[ 41 ]. Id.
[ 42 ]. Id. at 668.
[ 43 ]. Id.
[ 44 ]. Id. at 671.
[ 45 ]. Id. at 673.
[ 46 ]. Id.
[ 47 ]. Terry v Ohio, 392 U. S. 1 (1968).
[ 48 ]. Johnson, 217 Ariz. 60, 170 P.3d at 671.
[ 49 ]. Ilono H., 210 Ariz. 473, P2, 113 P.3d at 697.
[ 50 ]. Id. at P12.
[ 51 ]. Brendlin v California, U.S. 127 S. Ct. 2400, 2410, 168 L. Ed. 2d 132 (2007).
[ 52 ]. Id.
[ 53 ]. Johnson, 217 Ariz. 60, 170 P.3d at 671.
[ 54 ]. United States v Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).
[ 55 ]. United States v Werking, 915 F.2d 1404, 1408-09 (10th Cir. 1990).
[ 56 ]. Johnson, 217 Ariz. 60, 170 P.3d at 671.
[ 57 ]. Id.
[ 58 ]. Hernandez, 93 F.3d at 1498.
[ 59 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 60 ]. Id.
[ 61 ]. Id.
[ 62 ]. State v Navarro, 201 Ariz. 272, 34 P.3d 971 (App.2001).
[ 63 ]. Id.
[ 64 ]. Id.
[ 65 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 66 ]. Id.
[ 67 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 68 ]. Id.
[ 69 ]. Ilono H., 210 Ariz. 473, P2, 113 P.3d at 697. This was a consensual encounter, not a traffic stop between a juvenile and an officer.
[ 70 ]. State v Riley, 196 Ariz. 40, P16, 992 P.2d 1135, 1140 (App. 1999).
[ 71 ]. State v Valle, 196 Ariz. 324, P9, 996 P.2d 125, 128 (App. 2000).
[ 72 ]. Adams v Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972).
[ 73 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 74 ]. State v Johnson, 2007 Ariz. LEXIS 154 (Ariz. Nov. 29, 2007).
[ 75 ]. Arizona v Johnson, 128 S. Ct. 2961, 171 L. Ed. 2d 884, 2008 U.S. LEXIS 5208, 76 U.S.L.W. 3673 (U.S. 2008).
[ 76 ]. Arizona v Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, 2009 U.S. LEXIS 868, 21 Fla. L. Weekly Fed. S 620 (U.s. 2009).
[ 77 ]. Terry v Ohio, 392 U. S. 1 (1968).
[ 78 ]. Id. at 24.
[ 79 ]. Id. at 23-24, 27, 30-31.
[ 80 ]. Berkemer v McCarty, 468, U.S.420, 439, n.29, 104 S. Ct. 3138, 82 L. Ed 2d 317
[ 81 ]. Michigan v Long, 463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed 2d 1204.
[ 82 ]. Maryland v Wilson, 519 U.S. 408, 414, 117 S. Ct. 882, 137 L. Ed 2d 41.
[ 83 ]. Pennsylvania v Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d, 331.
[ 84 ]. Id. at 111.
[ 85 ]. Id. at 110-111.
[ 86 ]. Terry v Ohio, 434 U.S., at 112.
[ 87 ]. Pennsylvania v Mimms, 434 U.S. 106
[ 88 ]. Johnson 129 S. Ct. 781, at 698.
[ 89 ]. Id.
[ 90 ]. Brendlin, 551 U.S., at 257.
[ 91 ]. Johnson 129 S. Ct. 781, at 698.
[ 92 ]. U.S. Constitution – Amendment 4.
[ 93 ]. Carroll v United States, 267 U.S.132 (1925).
[ 94 ]. Id. at 160.
[ 95 ]. Id. at 132.
[ 96 ]. Id. at 158.
[ 97 ]. Id. at 150-53.
[ 98 ]. Id. at 153.
[ 99 ]. Id.
[ 100 ]. Terry, 392 U.S. at 16.
[ 101 ]. Id. at 4-7.
[ 102 ]. Terry, 392 U.S. at 2.
[ 103 ]. Id. at 16-20.
[ 104 ]. Id. at 24.
[ 105 ]. U.S. Constitution – Fourth Amendment.
[ 106 ]. http://www.lectlaw.com.
[ 107 ]. Dumbra v. United States, 268 U.S. 435, 439 , 441 (1925).
[ 108 ]. Id. at 16.
[ 109 ]. Id.
[ 110 ]. Id. at 20-27.
[ 111 ]. Id. at 20.
[ 112 ]. Id.
[ 113 ]. United States v Mendenhall, 446 U.S. 544, 545 (1980).
[ 114 ]. Id. at 554.
[ 115 ]. Id. at 547-49.
[ 116 ]. Id.
[ 117 ]. Id. at 555.
[ 118 ]. Id.
[ 119 ]. Id. at 544.
[ 120 ]. Id. at 554.
[ 121 ]. Pennsylvania v Mimms, 434 U.S. at 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).
[ 122 ]. Id.
[ 123 ]. Id.
[ 124 ]. Id.
[ 125 ]. Id.
[ 126 ]. Id.
[ 127 ]. Id.
[ 128 ]. Id.
[ 129 ]. Id at 106, 108.
[ 130 ]. Id.
[ 131 ]. Id.
[ 132 ]. Id.
[ 133 ]. Id.
[ 134 ]. Id. at 106, 112 (quoting Terry, 392 U.S., at 21-22).
[ 135 ]. Mimms 434, U.S. 106, at 112.
[ 136 ]. Id. at 111.
[ 137 ]. Id.
[ 138 ]. Maryland v Wilson, 519 U.S. 408 (1997).
[ 139 ]. Id.
[ 140 ]. Id.
[ 141 ]. Id.
[ 142 ]. Id.
[ 143 ]. Id.
[ 144 ]. Maryland v Wilson, 519 U.S., 408 (1997).
[ 145 ]. Id. at 414.
[ 146 ]. State v Navarro, 34 P.3d 971 (Ariz. Ct. App. 2001).
[ 147 ]. In re Ilono H., 113 P.3d 696 (Ariz Ct. App. 2005).
[ 148 ]. Navarro, 34 P.3d at 971, 973.
[ 149 ]. Id.
[ 150 ]. Id.
[ 151 ]. Id.
[ 152 ]. Id.
[ 153 ]. Id.
[ 154 ]. Id. at 973-974.
[ 155 ]. Id. at 972.
[ 156 ]. Id. at 974.
[ 157 ]. Id. at 974-975.
[ 158 ]. Id.
[ 159 ]. Id.
[ 160 ]. Ilono H., 113 P.3d at 697.
[ 161 ]. Id.
[ 162 ]. Id.
[ 163 ]. Id.
[ 164 ]. Id.
[ 165 ]. Id.
[ 166 ]. Id.
[ 167 ]. Id. at 700-701.
[ 168 ]. Knowles v Iowa, 525 U.S. 113, 117–18 (1998).
[ 169 ]. Brendlin v. California, 127 S. Ct. 2400, 2410 (2007).
[ 170 ]. Knowles v Iowa, 525 U.S. at 114.
[ 171 ]. Idat 113.
[ 172 ]. Id. at 118.
[ 173 ]. Brendlin, 127 S. Ct. at 2403.
[ 174 ]. Id. at 2404.
[ 175 ]. Id.
[ 176 ]. Id.
[ 177 ]. Id.
[ 178 ]. Id.
[ 179 ]. Id.
[ 180 ]. Id.
[ 181 ]. Id. at 2404-05.
[ 182 ]. Id. at 2405-06 (quoting Florida v Bostick, 501 U.S. 429, 435-36 (1991)).
[ 183 ]. Id. at 2406-07.
[ 184 ]. Id. at 2407.
[ 185 ]. Id. at 2410.
[ 186 ]. Terry, 392 U.S. at 2.
[ 187 ]. Johnson, 170 P.3d at 671.
[ 188 ]. Brendlin, 551 U.S. at 262.
[ 189 ]. Johnson, 170 P.3d at 671.
[ 190 ]. Id.
[ 191 ]. Id. at 672.
[ 192 ]. Id.
[ 193 ]. Id. at 673.
[ 194 ]. Id.
[ 195 ]. Id. at 674.
[ 196 ]. Id. at 674 (Espinosa, J., dissenting).
[ 197 ]. Id.
[ 198 ]. Id. (quoting State v Riley, 992 P.2d 1135, 1140 (Ariz. Ct. App. 1999)).
[ 199 ]. Id.
Date of Judgment: January 26, 2009
INTRODUCTION
In 2002, Lemon Montrea Johnson was the passenger in the backseat of a car stopped for a traffic violation. Johnson was charged with; inter alia, possession of drugs and possession of a weapon by a felon. These items were discovered during a protective pat-down search of Johnson. Johnson was convicted by the trial court. Johnson argued that his conviction should be overturned because the trial court was in error by denying his motion to suppress the evidence. He argued that he had been unlawfully “seized” because being a passenger in a vehicle does not automatically constitute “seizure.” He furthered argued that even if he had been “seized,” that by the time Officer Trevizo searched him he was no longer “seized” as their conversation had become consensual. Furthermore, the evidence should not be considered because the search violated his Fourth Amendment rights and because the …show more content…
officer had no reasonable suspicion that criminal activity was occurring as mandated by Terry v Ohio.
On September 10, 2007, the Arizona Court of Appeals overturned the conviction. The court concluded that Trevizo had no right to pat Johnson down even though she believed he was armed and dangerous. The court held that Johnson, although legally detained, had evolved into consensual conversation with officer Trevizo regarding his gang affiliation. This conversation was not connected to the traffic stop of the driver; therefore, the officer may not conduct a pat-down without reasonable cause to believe that “criminal activity may be afoot.” On appeal to the United States Supreme Court, the state argued that police officers should have the right to conduct a pat-down search if they believe the person may be armed and dangerous. On June 23, 2008 the United States Supreme Court granted the State’s petition for a writ of certiorari.
The question presented in this case is do police officers have the authority to “stop and frisk” a passenger in a motor vehicle temporarily detained upon police detection of a traffic infraction on the basis they believe the person may be armed and dangerous, even when there is no reasonable suspicion of criminal activity? The Supreme Court decided that yes an officer’s reasonable belief that a person is armed and dangerous is sufficient for performing a pat-down search. They established that a Terry “stop” is met when police lawfully detain a vehicle and its occupants on a traffic violation. The police do not have to believe anyone in the vehicle is involved in criminal activity. A Terry “frisk” is justified if police reasonably believe the person may be armed and dangerous. Although this case is based on conditions of a traffic stop, one has to wonder if this will open the door to intrusive searches by officers in varying situations.
FACTS
On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, members of Arizona’s gang task force, were patrolling in the Tucson neighborhood Sugar Hill, an area associated with the Crips gang. Around 9 p.m., they pulled over a vehicle after a license plate check revealed its registration had been suspended for mandatory insurance law. The vehicle had three occupants, the driver, a passenger in the front seat, and Lemon Montrea Johnson, respondent, in the back seat.
At the time of the stop, the officers had no reason to suspect anyone in the vehicle of criminal activity. The officers walked toward the car. Machado told the occupants to keep their hands in sight. He inquired if there were any weapons in the vehicle, all three said no. Machado instructed the driver to get out of the car. Gittings talked to the front seat passenger, who remained in the vehicle throughout the duration of the traffic stop. Machado interviewed the driver regarding the insurance and registration. Trevizo dealt with Johnson.
As Officer Trevizo approached the vehicle, she noticed Johnson alternately watching the officers and commenting to the front seat passenger. This alerted Officer Trevizo. When she drew closer to the vehicle, she noticed Johnson wearing a blue bandana, the chosen color of the Crips. Additionally, she observed that Johnson had a police scanner in his jacket, which she found to be unusual and cause for concern, as” most people” would not carry a scanner “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” Trevizo questioned Johnson, who did not have any identification with him but he did provide his name and date of birth. He also stated he was from Eloy, Arizona, a known home to the Crips. Johnson revealed he was a convicted felon who had served prison time for burglary. These factors led Officer Trevizo to believe Johnson may have been a gang member. Officer Trevizo wanted to gather intelligence about the gang Johnson may have been in, as gathering intelligence was one of her main missions in the task force. Officer Trevizo wished to question Johnson away from the others and asked Johnson to get out of the car. Johnson complied. Officer Trevizo was trained extensively as a gang task force officer and knew gang members generally tend to carry a gun. She was concerned for her safety, but did not have a reasonable indication that “Johnson was engaged in or about to engaged in criminal activity.” When Johnson got out of the car, Trevizo “patted him down for officer safety.” While patting Johnson down, Trevizo discovered a gun. At that time, Johnson began to struggle. Officer Trevizo hand cuffed Johnson.
PROCEDURAL BACKGROUND
A. Trial Court
Johnson was charged with possession of a weapon by a prohibited possessor, possession of marijuana, and resisting arrest. On October 31, 2005, Johnson filed a motion to suppress evidence found on his person during the pat-down search. The motion was denied. In November, 2005, Johnson was found guilty of the weapons charge as well as possession of marijuana, but not of resisting arrest. He was sentenced to eight years and one year concurrently.
B. Arizona Court of Appeals
Johnson appealed. The Arizona Court of Appeals in State v Johnson reversed the conviction. The majority held that Johnson was lawfully detained at the time of the stop; however, the conversation between Trevizo and Johnson had turned into a consensual one that was unrelated to the traffic stop. Since Trevizo had no indication that criminal activity was occurring, she had no right pat Johnson down even if she believed he was armed and dangerous.
The court referred to Terry v Ohio finding that a Terry stop allows officers to conduct a pat-down search in order to protect the officers, a consensual search does not as they stated in Ilono H:
“Terry and its Supreme Court progeny addressed the propriety of a pat-down search exclusively in the context of a lawful investigatory stop. We do not read those cases to authorize a pat-down search as part of a mere consensual encounter--even when an officer may have grounds to believe the targets of the encounter are potentially armed and dangerous.”
The court also drew upon the Supreme Court’s holding in Brendlin v California to determine if Johnson had been lawfully seized. In Brendlin v California, “a passenger is seized when the vehicle in which he or she is riding in is lawfully stopped by police. However, Johnson contended that even though he had been seized that was no longer the case because it had turned into a “consensual encounter before Trevizo patted him down.” The court cited cases that stated a traffic stop may become consensual “when officers return the license or registration to a stopped driver, issue the driver a citation or warning, or tells the driver he or she is free to go” or “asks questions without further constraining the driver by an overbearing show of authority.” The court could not find any case law to establish that point with a passenger, but they reasoned that common sense suggests that at some point the passenger should be free to walk away. To decide when that point was, they applied a standard of reasonableness. The court elaborated on what was a consensual encounter. They considered a consensual encounter is if a person cooperates with the police voluntarily, answering non-coercive questioning. Additionally, if that person is free to leave at any time, he or she is not seized under the Fourth Amendment. Furthermore, the court stated that the encounter would not be consensual if the person did not feel free to leave. In Johnson’s case, the reason Officer Trevizo wished to speak with Johnson to learn more about his gang affiliation, not about the traffic stop and Trevizo testified that Johnson was free to leave at any time. The court stated that Trevizo could have ordered the passengers out of the car, but she did not. Trevizo had also stated that Johnson could have refused to get out of the car. Arizona case law agrees that a Terry stop can evolve into a consensual encounter as in State v Navarro. In Navarro’s case, a suspect in a shooting was taken into custody during a valid Terry stop, but the court determined it evolved into a consensual encounter because the suspect had not been “confront[ed] and surround[ed] at the initial detention” His handcuffs were removed and he voluntarily agreed to go (unfrisked and in the officer’s front seat) down town with the officer to talk about the shooting. In comparing the cases, the court believed Navarro was subjected to a greater level of coercion than Johnson. After examining every aspect of Johnson’s encounter with Trevizo, the court determined that Johnson’s getting out of the car to talk to Trevizo was consensual. They stated any “reasonable person in Johnson’s position and under these circumstances would have felt he could have remained in the vehicle.” They acknowledged that Trevizo had a reason to believe Johnson was armed and dangerous (clothing, scanner, hometown) but that fact alone did not give her the right to pat Johnson down in a consensual encounter. They determined that the trial court made an error when they chose not to suppress the evidence found. They reversed Johnson’s convictions and sentences and remanded the case for further proceedings. Judge Espinosa dissented. He found it unrealistic to conclude that just because Trevizo did not use coercion and Johnson volunteered to talk to her, made the encounter evolve into a consensual encounter. Consequently, Trevizo, fearing for her safety and the safety of others, could not legally conduct a pat-down search. The dissent noted that in Ilono H. the right to conduct a pat-down search should be dependent on the legality of the original Terry stop. Additionally, the dissent stated Arizona courts had many cases affirming the right of an officer to conduct a pat-down search when there is reasonable concern for his safety, as in State v Riley where a passenger was patted down during a traffic stop, in State v Valle where a passenger was patted down after he reached for his waistband when he was asked if he had a weapon, and in Adams v Williams that stated an “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence.” The dissent continued that this was a legal traffic stop and since Officer Trevizo believed Johnson was armed and was a threat to her as well as the others; therefore she had the right to conduct a pat-down search of Johnson. The Arizona Supreme Court denied review.
C. United States Supreme Court The State of Arizona appealed. The United States Supreme Court granted certiorari and reversed the judgment of the Arizona Court of Appeals. They began by looking at Terry v Ohio. The police must have a reasonable belief that a person is engaged in criminal activity in order to stop him or her and a reasonable suspicion that the person temporarily detained is armed and dangerous in order to frisk him or her “stop and frisk.” “Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a pat-down is constitutional.” With traffic stops being short in nature, similar to the detention authorized in Terry, the threat of danger to the police officer is heightened who is authorized to reduce the risk by taking “unquestioned command of the situation.” To elaborate on Johnson being in a Terry situation, the court referred to Pennsylvania v Mimms which held that it does not violate the Fourth Amendment “because the government's "legitimate and weighty" interest in officer safety outweighs the "de minimis" additional [**699] intrusion of requiring a driver, already lawfully stopped, to exit the vehicle.” Once outside the vehicle, Terry v Ohio states the driver can be then be patted down if there is suspicion he is armed and dangerous. The Mimms rule pertains to passengers as well as to drivers. They both have the same motivation to steer clear of being arrested for more significant crimes than traffic related offenses they have the same motivation to use violence to avoid such arrest. The safety of the officer outweighs the “minimal” intrusion of being asked to get out of the car and all the occupants of the vehicle have already been seized by nature of the car stop. The Supreme Court held that the Arizona court was in error in believing that Trevizo and Johnson’s encounter had evolved into a consensual encounter. Trevizo had not told Johnson he was free to leave nor did she inform him he did not have to cooperate with her and answer her questions. In other words, she did not give Johnson any reason to believe that her interrogation was consensual. Furthermore, a lawful roadside stop begins when the vehicle is pulled over and ends when police no longer need to control the situation at which time they inform the driver and passengers they are free to leave. A reasonable passenger would understand that as long as the car was seized, he was seized as well. The fact that Johnson was being interrogated about matters other than traffic would not change that understanding. Nothing had happened in the encounter before the frisk that would lead Johnson to believe he was free to leave without the officer’s permission. In a unanimous decision written by Justice Ruth Bader Ginsburg, the Supreme Court reversed the Arizona Court of Appeals. Arizona v Johnson was reversed and remanded. The Court held that Johnson’s encounter was not consensual and did not violate his Fourth Amendment rights. The court opined: valid traffic stops give officers the right to detain the driver and passengers for the duration of the stop; drivers and passengers may be removed from the vehicle with no additional justification; occupants may be asked for identification; if the officer reasonably believes the person may be armed and dangerous, he may conduct a pat-down search (even if he does not believe the person has been or is engaged in criminal activity); officers may inquire or converse about matters other than the traffic stop without it turning in to a consensual encounter as long as it does not “meaningfully prolong” the traffic stop.
LEGAL BACKGROUND The Fourth Amendment to the Bill of Rights of the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” When the Fourth Amendment law was created, no one could have predicted the controversy that would follow in this era of mobility. The first time the Court had to address how the Fourth Amendment applies to searches of automobiles was in 1925, Carroll v United States.
Two men were suspected of bootlegging. The police pulled them over and discovered illegal liquor in the trunk of their automobile. The defendants argued there was no warrant served allowing police to search their vehicle, therefore, the evidence should be suppressed. The Court disagreed, reasoning it was impractical to obtain a warrant due the mobility of an automobile. The Court noted difference between buildings and automobiles. Automobiles have the ability to leave the jurisdiction, taking the evidence with them, before a warrant could be obtained. The ruling in Carroll v United States enacted warrantless searches of vehicles are permissible if there was “probable cause” to believe contraband could be in the vehicle and belief that the vehicle could be moved before the officer could get a warrant. This became known as the “automobile
exception.” The Court had created distinct guidelines for searching, with or without warrant. Now they needed to determine a clear definition of seizure. The benchmark case to define seizure is Terry v Ohio. The “stop and frisk” procedure was formally created in the case of Terry v Ohio. In October, 1963 a police officer observed two suspicious acting men standing on a street corner. One of the men would leave, walk down the street, look carefully in store windows, continue walking, turn around and look in the same windows again, and return to the corner to talk to the other man again. The second man did the same thing. In fact, they went back and forth six times. The police officer found this behavior highly bizarre and believed they were going to rob the store they had been observing. This led him to believe they were probably armed as well. He followed the men around the corner, where they were meeting with a third man. He approached them and asked their names. They mumbled incoherently. The officer grabbed the man in the middle (Terry) and patted down the outside of his clothing. He found a pistol in the left breast pocket of his jacket, but he could not retrieve it, so he asked them to go into the store. He removed Terry’s jacket and retrieved the pistol. The officer patted down the second man and found a pistol on him as well. The third man did not have a weapon on him.
The men were taken into custody and charged with carrying a concealed weapon. Terry moved that the evidence should be suppressed as the evidence found was the result of an illegal search which violated his Fourth Amendment rights. The judge denied this motion stating that the officer’s experience granted enough cause to conduct an interrogation. The defense appealed to the Supreme Court.
The main issue the Supreme Court had to deal with was whether or not Terry’s Fourth Amendment rights had been violated by unreasonable search and seizure. They held what came to be known as “stop and frisk,” which contained two parts. First, an officer may stop a person if he has “reasonable suspicion,” based on articulable facts that the person has committed or is in the process of committing a crime. The existence of reasonable suspicion depends on the overall view of the circumstances, including the” information known to the officer” and any “reasonable inferences to be drawn at the time of the stop.” This “investigative stop” does not require “probable cause” found the Fourth Amendment’s warrant clause. Probable cause in short is "a reasonable belief that a person has committed a crime.”
''In determining what is probable cause . . . [w]e are concerned only with the question whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged, there is probable cause justifying the issuance of a warrant.”
A person, within the meaning of the Fourth Amendment, is seized “whenever a police officer accosts an individual and restrains his freedom to walk away.” They also determined that patting down the outer clothing is a “search” under that Amendment. Second, to proceed from the “stop” to the “frisk” “a reasonably prudent officer must believe that he or others are in danger, then he may make a reasonable search of the person that he believes is armed and dangerous, regardless if he is certain the person is armed or regardless of whether or not he has cause to arrest the person.” They stated that police must have probable cause and when possible have a warrant to search. In on-the-spot cases, however, it is not practical to obtain a warrant. The officer in the Terry case did have reason to suspect the men were armed. Therefore, the Supreme Court affirmed Terry’s conviction. Elaborating on whether or not a person has been seized is found in United States v Mendenhall. The Court held that a person is seized “if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." On February 10, 1976, Sylvia Mendenhall flew in to the Detroit Metropolitan Airport on a flight from Los Angeles. DEA agents observed her behavior as suspicious as if she were possibly carrying illegal drugs. The agents approached her and asked for identification and her airline ticket. Her airline ticket showed her name as “Annette Ford.” When questioned, she responded she just felt like using that name. Agent Anderson asked Mendenhall to go with him to the airport DEA office. She did. He asked her if she would allow him to search her handbag, clearing stating she did not have to if she did not want to. She handed him the handbag. A female officer arrived to search her person. Before proceeding, the officer asked Mendenhall if she consented to being searched which she responded she did. When heroin was found, she was arrested. The District Court denied Mendenhall’s motion to suppress, since she had consented to the search. The question to the Supreme Court was whether or not Mendenhall was “seized” when the DEA agents first approached her and requested her identification. The Court concluded that a person has been “seized” if considering all the circumstances, a reasonable person in that situation, would believe he did not have the freedom to leave. According to Mendenhall, without “reasonable suspicion” law enforcement may make consensual contact with a person. The person does don have to answer any questions. As long as he or she is free to walk away, the encounter does not violate any liberties granted in the Fourth Amendment. In Pennsylvania v Mimms, the Court held that an officer may order a driver out of the car, provided the traffic stop was lawful. Two Philadelphia policemen were patrolling when they noticed a car with an expired license. They pulled the car over to ticket the driver for driving with expired tags. One of the officers asked the driver, Mimms, to step out of the vehicle to provide his license and registration. Upon doing so, the officer noticed a “bulge under his jacket.” The officer frisked Mimms and found a loaded 38-caliber revolver. Mimms was charged and convicted with carrying a concealed deadly weapon and unlawfully carrying a firearm without a license in the trial court. Mimms moved to suppress the evidence. The Pennsylvania Supreme Court reversed the conviction after determining that the way the gun was discovered was a violation of the Fourth Amendment. They held that the officer’s request for Mimms to get out of the car was an unlawful seizure, protected against in the Fourth Amendment. “This was so because the officer could not point to “objective observable facts to support a suspicion that criminal activity was afoot or that the occupants of the vehicle posed a threat to police safety.” They continued that the officer should have never had the opportunity to notice the bulge; therefore, the search should have never taken place.
The United States Supreme Court did not agree with the Supreme Court of Pennsylvania. The Court referred to Terry v Ohio as setting the standard of whether "the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate" there is little doubt that the officer was justified. The Court stated “the officers safety outweighs the additional intrusion of the driver to get out of the car which was “de minimis” since he was already detained by the traffic stop.” The Court reversed the decision of the Pennsylvania Supreme Court.
Maryland v Wilson extended the ruling of Pennsylvania v Mimms that an officer may order the driver out of the car, to passengers as well. A Maryland state trooper pulled over a speeding car on I-95 in Baltimore County. The officer noticed the passenger, Wilson, sweating and appearing to be very nervous. The officer ordered Wilson to get out of the car. When he did, a quantity of cocaine fell on the ground. Wilson was charged with possession of cocaine with intent to deliver. The Baltimore County Circuit Court granted the motion to suppress the evidence stating that ordering Wilson to get out of the car violated his Fourth Amendment rights, constituting an unreasonable seizure. The Maryland Court of Special Appeals affirmed.
The United States Supreme Court had to decide whether or not the ruling in Mimms should be extended to include passengers. The Court held that the ruling should extend to the passengers as the “additional intrusion of exiting the vehicle as “de minimis” in comparison to the officer’s safety.” The Court reasoned that a passenger would have the same motivation as a driver prevent additional crimes from being discovered during the stop, thereby, bringing the threat of violence from the passenger. The Arizona Court of Appeals relied on two Arizona cases they felt set precedent in this case, State v Navarro and In re Ilono H. In Navarro, a shooting had taken place. A few hours later, police stopped a car near the scene of the shooting. One of the passengers met the description of the shooter. He was handcuffed then questioned by the police. After conversing with the police, they removed the handcuffs and asked Navarro to go with an officer to the police station. Navarro agreed to go with the officer. He was allowed to sit, unrestrained, in the front seat with the officer. Navarro was not told he was free to go, nor did he express a desire to leave. At the police station, Navarro was left in the interrogation room unattended, while the officer went to buy him a drink. Navarro agreed to have his testimony taped, his photograph taken, and to be fingerprinted. Navarro signed consent forms and admitted he was aware of his Miranda rights. This led to the conviction of Navarro. Navarro argued the evidence was illegally obtained. Navarro argued the legal detention had evolved into an illegal arrest when he went with the officer to the station. The court held that Navarro was neither in custody, nor under arrest when he agreed to go to the police station because “under the circumstances, a reasonable, innocent person would have felt free to decline the officer’s request to accompany him for questioning downtown.”
In Ilono H., two policemen approached five people in a park who were known for drug activity. They were dressed in red, a color associated with gang activity. After talking with the individuals, officers conducted pat down searches of the youth because gang members often carry weapons. The pat-down revealed Ilono had a 40-ounce beer on him. He was arrested for illegal possession of alcohol. In a search incident to the arrest, cocaine was found in Ilono’s pocket. Ilono was convicted.
On appeal to the Arizona Court of Appeals, the court determined that a Terry frisk is only allowed when the officer believes the person is, or will be in the near future, engaged in criminal activity. The court found that this was a consensual encounter, which an officer may initiate but it may be terminated at any point if the person so desires. The court held that the officers did not have a right to make an investigatory stop because they had no reasonable belief Ilono had committed or was committing a crime; therefore, the pat-down search was illegal in this consensual encounter. The two most recent Supreme Court cases setting important precedent in Arizona v Johnson is Knowles v Iowa and Brendlin v California. In Knowles v Iowa, Knowles was pulled over for speeding. In lieu of an arrest, the officer issued Knowles a citation. After issuing the citation, the officer searched the vehicle. He found marijuana along with a pipe and charged him with possession. The issue at hand was, considering the officer had not made an arrest, did he have the authority to conduct the search consistent with the Fourth Amendment? The Court said “no.” The issue at hand was not the subject referred to by the Court in Arizona v Johnson. The issue brought up was that the Court in that case stated “that officers who conduct ‘routine traffic stop[s]’ many ‘perform a pat-down of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.” In Brendlin, the Court held that a passenger is seized, according to the Fourth Amendment, just as the driver is seized. On November 27, 2001 in Sutter County, California, Bruce Brendlin was a passenger in a vehicle pulled over for an expired registration. The officer had inquired about the registration earlier in the day while the car was parked. He had been informed that the renewal was being processed and the temporary registration was displayed in the back window was legal. While addressing the driver, Karen Simeroth, the officer recognized Brendlin as one of the “Brendlin Brothers.” The officer was certain he was a parole violator. After verifying that indeed Brendlin was a parole violator, the officer called for backup, ordered Brendlin out of the car at gunpoint, and arrested him and the driver. In the search incident to arrest, the officer found a syringe cap on Brendlin, syringes and marijuana on Simeroth, and methamphetamine along with equipment used to manufacture the drug in the vehicle. Brendlin argued to suppress the evidence stating that he was unlawfully seized by the traffic stop because the officer did not have probable cause to make the stop. Brendlin was denied by the trial court as they stated Brendlin was not seized until the officer ordered him out of the car and therefore did not have the right to challenge the legality of the stop. The California Court of Appeals reversed the decision made by the trial court. This court found that Brendlin was seized by the traffic stop; however, they determined the traffic stop was illegal. The United States Supreme Court had to decide whether or not a passenger is seized, according to the Fourth Amendment, in a traffic stop. The Court used the analogy of “whether a reasonable person in Brendlin’s position when the car was stopped would have believed himself free to ‘terminate the encounter’ between the police and himself.” The Court held “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.” The Court explained that a traffic stop limits the actions of the passenger just as it does the driver and that the officer initiating the traffic stop “acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely.” Therefore, the Court concluded that the Brendlin was seized by the traffic stop “despite the fact that he was merely a passenger and not the target of the stop itself,” consequently he did have the right to challenge if his Fourth Amendment rights had been violated.
COURT’S RATIONALE Before Johnson, according to Terry v Ohio, law enforcement was allowed to detain a person briefly if they believed he is was in the process of committing a crime or had committed a crime. Additionally, if the officer believed the detainee was armed and dangerous, the officer was allowed to conduct a pat-down of the detainee’s outer clothing to ensure he had no weapons on him.
The Arizona Court of Appeals interpreted the Terry ruling did not apply to a person involved in a consensual encounter if the officer did not believe criminal activity was occurring, even if they believed he was armed and dangerous. The question this court asked was Johnson “seized” when he was frisked or had the encounter turned into a consensual conversation? They did refer to the United States Supreme Court’s ruling in Brendlin v California that a passenger is “seized” during a traffic stop, however, they noted that the Court did not designate when the seizure ended. They reasoned that “common sense” would allow that there must be a point in time where the passengers in the vehicle are free to leave and that “their fate is not entirely tied to that of the driver.” They further compared this case to In re Ilono H. and reasoned that since Johnson was engaging in conversation unrelated to the traffic stop with Officer Trevizo, it had evolved into a separate consensual encounter. The court emphasized that Officer Trevizo believed Johnson was free to terminate the encounter at any time. The court also compared Johnson to Navarro. They determined Navarro had been subject to a greater level of coercion that Johnson had been and that the reasonable person in Johnson’s position would have believed he was free to stay in the vehicle. Furthermore, since Officer Trevizo had no suspicion that Johnson was involved in criminal activity, she had no right to frisk him, even if she believed he was armed and dangerous. Since the court had determined the encounter was consensual, they held that the evidence found should be suppressed.
Judge Philip Espinosa dissented stating that the majority had placed police in greater danger. Judge Espinosa pointed out the language of Ilono H. stated a pat-down search should rely on the legality of the original stop and that in this case the original stop was legal. He also pointed out that Arizona courts had long acknowledged the right of an Arizona officer to conduct pat-down searches when he has a “reasonable concern for his safety.” Since Officer Trevizo did have a concern for her safety and the stop was legal, the dissent concluded the search was lawful and the evidence should not be suppressed. In a unanimous opinion written by Justice Ginsburg, the Court established that an officer may pat-down a passenger in a vehicle during the course of a traffic stop if the officer has an articulable suspicion to believe that person is armed and dangerous.
ANALYSIS
The Fourth Amendment is critical when it comes to protecting the rights of individuals from unreasonable seizures and searches. Johnson’s case required the Court to set a balance between these rights and the safety of law enforcement. The Supreme Court had already made exceptions to warrantless searches in Terry v Ohio. This Johnson decision expanded the Terry rule of ”stop and frisk” to traffic stops. The Court reasoned that traffic stops indicate to a reasonable passenger that he is “seized” along with the passenger for the duration of the stop. Additionally, the Court noted that traffic stops are “fraught with danger to police officers.” Unlike Terry, however, no longer do police need to believe the detainee is engaged in or has been engaged in criminal activity, they just need to “reasonably suspect” the person subjected to the pat-down is armed and dangerous.
Conclusion
The significance of this holding is that it increased officer safety by allowing them to pat-down a person, “seized” by a traffic stop (be it driver or passenger), provided the stop is legal and the officer has a reasonable suspicion that the person may be armed and dangerous. The Supreme Court has always faced the challenging job: balancing individual liberties with need for law and order. Fourth street advocates state this is another nail in the coffin of our Fourth Amendment rights. As with any expansion of police authority, there is always the chance of abuse of power. It is possible some police will abuse this power, using pat-downs during routine traffic stops in the hopes of turning a speeding ticket into something more interesting. Could Johnson eventually apply to any person the police may confront and/or detain? Pat-down searches are intrusive, humiliating, and embarrassing. Does this give law enforcement to pat-down anyone, anywhere under the disguise of officer safety? Will this lead to targeting and profiling? Will police be able to ignore the plastic baggie found while searching for weapons? Furthermore, will this prevent individuals from voluntarily interacting with police, knowing they may be frisked? Time will tell. On the other hand, officer safety is paramount. Not allowing officers to search occupants, within the context of a traffic stop, for weapons when there may be a threat to their safety would cripple their ability to perform their job effectively. Johnson was fresh out of prison, wearing gang colors, and carrying a police scanner. Even to an untrained civilian, it would seem common sense to frisk Johnson. In this case, highly trained Officer Trevizo took the chance that the evidence may have been suppressed, but that chance may have saved her life as well as the other officers. If Johnson had been allowed to leave the scene with the weapon, other lives were in jeopardy. The fact that the everyday law abiding citizen may face an intrusive pat-down seems a small price to pay for protecting the law enforcement that are sworn to protect and serve.
The bottom line is the Supreme Court unanimously decided that officer safety comes first. It is what it is.
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[ 1 ]. State v Johnson, 170 3d 667, 668,674 (Ariz. Ct. App, 2007).
[ 2 ]. Id.
[ 3 ]. Id. at 669.
[ 4 ]. Id.
[ 5 ]. Id. at 668.
[ 6 ]. Id. at 671.
[ 7 ]. Id.
[ 8 ]. Bill of Rights Amendment IV, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[ 9 ]. Terry v Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The court held that an officer is justified in conducting a limited search of persons whom he suspects may be armed and dangerous in order to discover any weapons which might be used to assault him or others nearby, even if they have no suspicion that the passenger has committed any crime.
[ 10 ]. Id. at 667.
[ 11 ]. Johnson, 170 P.3d at 669.
[ 12 ]. Id.
[ 13 ]. Johnson, 170 P.3d at 667 (quoting Terry v Ohio, 392 U.S. 1, 30 (1968)).
[ 14 ]. Arizona v Johnson, 128 S. Ct. 339, 172 L. Ed. 2d 14 (2008).
[ 15 ]. Id.
[ 16 ]. Id.
[ 17 ]. Id.
[ 18 ]. Johnson, 170 P.3d at 668.
[ 19 ]. Id.
[ 20 ]. Id.
[ 21 ]. Joint Appendix at 29, Johnson, 128 S. Ct. 2961 (No. 07-1122).
[ 22 ]. Joint Appendix at 14.
[ 23 ]. Id. at 15.
[ 24 ]. Id. at 31.
[ 25 ]. Id. at 42-43.
[ 26 ]. Id.
[ 27 ]. Id. at 12.
[ 28 ]. Id. at 17.
[ 29 ]. Id. at 16.
[ 30 ]. Johnson, 170 P.3d at 667, 669.
[ 31 ]. Id.
[ 32 ]. Joint Appendix at 19, Johnson, 128 S. Ct. 2961 (No. 07-1122).
[ 33 ]. Id.
[ 34 ]. Johnson, 170 P.3d at 669.
[ 35 ]. Joint Appendix at 10, Johnson, 128 S. Ct. 2961 (No. 07-1122).
[ 36 ]. Id. at 29.
[ 37 ]. Id. at 20.
[ 38 ]. Johnson, 217 Ariz. 60, 170 P.3d at 669-670.
[ 39 ]. Id.
[ 40 ]. Id. at 669-670.
[ 41 ]. Id.
[ 42 ]. Id. at 668.
[ 43 ]. Id.
[ 44 ]. Id. at 671.
[ 45 ]. Id. at 673.
[ 46 ]. Id.
[ 47 ]. Terry v Ohio, 392 U. S. 1 (1968).
[ 48 ]. Johnson, 217 Ariz. 60, 170 P.3d at 671.
[ 49 ]. Ilono H., 210 Ariz. 473, P2, 113 P.3d at 697.
[ 50 ]. Id. at P12.
[ 51 ]. Brendlin v California, U.S. 127 S. Ct. 2400, 2410, 168 L. Ed. 2d 132 (2007).
[ 52 ]. Id.
[ 53 ]. Johnson, 217 Ariz. 60, 170 P.3d at 671.
[ 54 ]. United States v Hernandez, 93 F.3d 1493, 1498 (10th Cir. 1996).
[ 55 ]. United States v Werking, 915 F.2d 1404, 1408-09 (10th Cir. 1990).
[ 56 ]. Johnson, 217 Ariz. 60, 170 P.3d at 671.
[ 57 ]. Id.
[ 58 ]. Hernandez, 93 F.3d at 1498.
[ 59 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 60 ]. Id.
[ 61 ]. Id.
[ 62 ]. State v Navarro, 201 Ariz. 272, 34 P.3d 971 (App.2001).
[ 63 ]. Id.
[ 64 ]. Id.
[ 65 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 66 ]. Id.
[ 67 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 68 ]. Id.
[ 69 ]. Ilono H., 210 Ariz. 473, P2, 113 P.3d at 697. This was a consensual encounter, not a traffic stop between a juvenile and an officer.
[ 70 ]. State v Riley, 196 Ariz. 40, P16, 992 P.2d 1135, 1140 (App. 1999).
[ 71 ]. State v Valle, 196 Ariz. 324, P9, 996 P.2d 125, 128 (App. 2000).
[ 72 ]. Adams v Williams, 407 U.S. 143, 146, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972).
[ 73 ]. Johnson, 217 Ariz. 60, 170 P.3d at 672.
[ 74 ]. State v Johnson, 2007 Ariz. LEXIS 154 (Ariz. Nov. 29, 2007).
[ 75 ]. Arizona v Johnson, 128 S. Ct. 2961, 171 L. Ed. 2d 884, 2008 U.S. LEXIS 5208, 76 U.S.L.W. 3673 (U.S. 2008).
[ 76 ]. Arizona v Johnson, 129 S. Ct. 781, 172 L. Ed. 2d 694, 2009 U.S. LEXIS 868, 21 Fla. L. Weekly Fed. S 620 (U.s. 2009).
[ 77 ]. Terry v Ohio, 392 U. S. 1 (1968).
[ 78 ]. Id. at 24.
[ 79 ]. Id. at 23-24, 27, 30-31.
[ 80 ]. Berkemer v McCarty, 468, U.S.420, 439, n.29, 104 S. Ct. 3138, 82 L. Ed 2d 317
[ 81 ]. Michigan v Long, 463 U.S. 1032, 1047, 103 S. Ct. 3469, 77 L. Ed 2d 1204.
[ 82 ]. Maryland v Wilson, 519 U.S. 408, 414, 117 S. Ct. 882, 137 L. Ed 2d 41.
[ 83 ]. Pennsylvania v Mimms, 434 U.S. 106, 98 S. Ct. 330, 54 L. Ed. 2d, 331.
[ 84 ]. Id. at 111.
[ 85 ]. Id. at 110-111.
[ 86 ]. Terry v Ohio, 434 U.S., at 112.
[ 87 ]. Pennsylvania v Mimms, 434 U.S. 106
[ 88 ]. Johnson 129 S. Ct. 781, at 698.
[ 89 ]. Id.
[ 90 ]. Brendlin, 551 U.S., at 257.
[ 91 ]. Johnson 129 S. Ct. 781, at 698.
[ 92 ]. U.S. Constitution – Amendment 4.
[ 93 ]. Carroll v United States, 267 U.S.132 (1925).
[ 94 ]. Id. at 160.
[ 95 ]. Id. at 132.
[ 96 ]. Id. at 158.
[ 97 ]. Id. at 150-53.
[ 98 ]. Id. at 153.
[ 99 ]. Id.
[ 100 ]. Terry, 392 U.S. at 16.
[ 101 ]. Id. at 4-7.
[ 102 ]. Terry, 392 U.S. at 2.
[ 103 ]. Id. at 16-20.
[ 104 ]. Id. at 24.
[ 105 ]. U.S. Constitution – Fourth Amendment.
[ 106 ]. http://www.lectlaw.com.
[ 107 ]. Dumbra v. United States, 268 U.S. 435, 439 , 441 (1925).
[ 108 ]. Id. at 16.
[ 109 ]. Id.
[ 110 ]. Id. at 20-27.
[ 111 ]. Id. at 20.
[ 112 ]. Id.
[ 113 ]. United States v Mendenhall, 446 U.S. 544, 545 (1980).
[ 114 ]. Id. at 554.
[ 115 ]. Id. at 547-49.
[ 116 ]. Id.
[ 117 ]. Id. at 555.
[ 118 ]. Id.
[ 119 ]. Id. at 544.
[ 120 ]. Id. at 554.
[ 121 ]. Pennsylvania v Mimms, 434 U.S. at 106, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977).
[ 122 ]. Id.
[ 123 ]. Id.
[ 124 ]. Id.
[ 125 ]. Id.
[ 126 ]. Id.
[ 127 ]. Id.
[ 128 ]. Id.
[ 129 ]. Id at 106, 108.
[ 130 ]. Id.
[ 131 ]. Id.
[ 132 ]. Id.
[ 133 ]. Id.
[ 134 ]. Id. at 106, 112 (quoting Terry, 392 U.S., at 21-22).
[ 135 ]. Mimms 434, U.S. 106, at 112.
[ 136 ]. Id. at 111.
[ 137 ]. Id.
[ 138 ]. Maryland v Wilson, 519 U.S. 408 (1997).
[ 139 ]. Id.
[ 140 ]. Id.
[ 141 ]. Id.
[ 142 ]. Id.
[ 143 ]. Id.
[ 144 ]. Maryland v Wilson, 519 U.S., 408 (1997).
[ 145 ]. Id. at 414.
[ 146 ]. State v Navarro, 34 P.3d 971 (Ariz. Ct. App. 2001).
[ 147 ]. In re Ilono H., 113 P.3d 696 (Ariz Ct. App. 2005).
[ 148 ]. Navarro, 34 P.3d at 971, 973.
[ 149 ]. Id.
[ 150 ]. Id.
[ 151 ]. Id.
[ 152 ]. Id.
[ 153 ]. Id.
[ 154 ]. Id. at 973-974.
[ 155 ]. Id. at 972.
[ 156 ]. Id. at 974.
[ 157 ]. Id. at 974-975.
[ 158 ]. Id.
[ 159 ]. Id.
[ 160 ]. Ilono H., 113 P.3d at 697.
[ 161 ]. Id.
[ 162 ]. Id.
[ 163 ]. Id.
[ 164 ]. Id.
[ 165 ]. Id.
[ 166 ]. Id.
[ 167 ]. Id. at 700-701.
[ 168 ]. Knowles v Iowa, 525 U.S. 113, 117–18 (1998).
[ 169 ]. Brendlin v. California, 127 S. Ct. 2400, 2410 (2007).
[ 170 ]. Knowles v Iowa, 525 U.S. at 114.
[ 171 ]. Idat 113.
[ 172 ]. Id. at 118.
[ 173 ]. Brendlin, 127 S. Ct. at 2403.
[ 174 ]. Id. at 2404.
[ 175 ]. Id.
[ 176 ]. Id.
[ 177 ]. Id.
[ 178 ]. Id.
[ 179 ]. Id.
[ 180 ]. Id.
[ 181 ]. Id. at 2404-05.
[ 182 ]. Id. at 2405-06 (quoting Florida v Bostick, 501 U.S. 429, 435-36 (1991)).
[ 183 ]. Id. at 2406-07.
[ 184 ]. Id. at 2407.
[ 185 ]. Id. at 2410.
[ 186 ]. Terry, 392 U.S. at 2.
[ 187 ]. Johnson, 170 P.3d at 671.
[ 188 ]. Brendlin, 551 U.S. at 262.
[ 189 ]. Johnson, 170 P.3d at 671.
[ 190 ]. Id.
[ 191 ]. Id. at 672.
[ 192 ]. Id.
[ 193 ]. Id. at 673.
[ 194 ]. Id.
[ 195 ]. Id. at 674.
[ 196 ]. Id. at 674 (Espinosa, J., dissenting).
[ 197 ]. Id.
[ 198 ]. Id. (quoting State v Riley, 992 P.2d 1135, 1140 (Ariz. Ct. App. 1999)).
[ 199 ]. Id.