The Vulnerable Passenger: an Analysis of the Constitutionality of Terry Frisking Vehicle Passengers Not Suspected of Criminal Activity in Arizona v. Johnson, 129 S. Ct. 781 (2009)

• Publication year: 2021

89 Nebraska L. Rev.515. The Vulnerable Passenger: An Analysis of the Constitutionality of Terry Frisking Vehicle Passengers Not Suspected of Criminal Activity in Arizona v. Johnson, 129 S. Ct. 781 (2009)

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Note(fn*)

The Vulnerable Passenger: An Analysis of the Constitutionality of Terry Frisking Vehicle Passengers Not Suspected of Criminal Activity in Arizona v. Johnson, 129 S. Ct. 781 (2009)

TABLE OF CONTENTS

I. Introduction.......................................... 516

II. Background........................................... 517
A.The Basics of Terry ................................ 517
B.Getting from Terry to Johnson..................... 518
1.Applying Terry to Traffic Stops ................518
2.Bringing Passengers Under Terry ..............520
3.Passengers' Standing Recognized...............522
C.Arizona v. Johnson................................523
1.Facts.......................................... 523
2.Holding....................................... 524

III. Analysis .............................................. 526
A.Deficiencies in Johnson's Reasoning............... 526
1.An Inaccurate Interpretation of the Terry Test . 526
2.Failure to Properly Evaluate Government Interest and Personal Privacy.................. 528
3.Johnson Incorrectly Held that Wilson Authorized Pat-downs .........................528
4.The Missing Dissents..........................530
5.Officer Safety During Traffic Stops.............532
B.Future Application ................................533
1.Not a True Automatic Companion Rule ........ 533
2.Extent of "No Suspicion of Criminal Activity"... 534
3. Likeliness that the Supreme Court Will Stop at Johnson....................................... 535

IV. Conclusion............................................ 537

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I. INTRODUCTION

In 1968, the Supreme Court held that police pat-downs could be conducted when there was a reasonable suspicion that a person on the street was armed and dangerous and involved in criminal activity.(fn1) This type of stop and limited search became known as the Terry stop-and-frisk.(fn2) Forty-one years later, the Supreme Court in Arizona v. Johnson decided that a police officer could conduct a Terry stop-and-frisk without any suspicion of criminal activity so long as the officer was dealing with a passenger involved in a routine traffic stop.(fn3)

With its decision in Johnson in 2009, the Supreme Court continued its thirty-year trend of expanding the authority of police officers during routine traffic stops. In a unanimous decision, the Court concluded that it was not a violation of a passenger's Fourth Amendment rights to be subjected to a pat-down even when the police officer did not suspect that the passenger was involved in criminal activity.(fn4) This conclusion broadened the authority of police officers beyond the acceptable scope of the Fourth Amendment as determined by Terry. In Johnson, the Court indicated it was relying on precedent to conclude that a passenger could be subjected to a stop-and-frisk.(fn5) While certain precedent may have supported the Court's conclusion on the matter,(fn6) the Court had never directly addressed the issue. As a result, the Court did not conduct the analysis mandated by Terry. The consequence has been another significant reduction in an individual's right to privacy as afforded by the Fourth Amendment's prohibition on unreasonable searches and seizures.(fn7) Of even greater concern are the possible implications this rule may have on future police-citizen interactions in both traffic stops and other situations.

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In Johnson, the Court removed an established element that must be satisfied prior to conducting a Terry stop-and-frisk for passengers in motor vehicles. This Note will examine Terry and the analytical framework it established. Three cases that arose between Terry and Johnson will then be analyzed to understand the continued abrogation of privacy rights in vehicles leading to the Johnson decision. The facts of Johnson and the Court's interpretation of its own precedent will be scrutinized. It will be demonstrated that, while Johnson did not adopt an automatic companion rule, its ruling contained similar elements. Finally, this Note will discuss possible future implications of Johnson.

II. BACKGROUND

A. The Basics of Terry

Terry involved a police officer patrolling downtown Cleveland while in street clothes.(fn8) The officer spent approximately ten to twelve minutes observing three different individuals demonstrating suspicious behavior.(fn9) Specifically, the officer observed two of the men walking back and forth along a sidewalk while stopping repeatedly to look into the same store window.(fn10) After walking off together and meeting up with a third man, the police officer stopped them because he suspected that they might have been casing the store.(fn11) The officer conducted a pat-down of all three men.(fn12) After feeling a gun under two of the men's coats, the officer reached inside the coat pockets and removed the weapons.(fn13) The two men were charged with and convicted of carrying concealed weapons.(fn14)

The Terry decision made it explicitly clear that the detention and subsequent pat-down of the suspects constituted a search and seizure that was subject to the Fourth Amendment.(fn15) In determining that the search and seizure was not unreasonable, Terry balanced the governmental

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interest in conducting the search and seizure with the level of personal invasion that occurred.(fn16) The specific governmental interest at issue was the safety of the police officer.(fn17) Terry focused on the situation where an officer was investigating a person whose suspicious behavior gave the officer a justified belief that the individual was armed and dangerous.(fn18) In that situation, the Supreme Court ultimately concluded that it would be unreasonable to deny an officer the ability to take necess that person was carrying a weapon.(fn19)

While the Court found the government's interest prevailed, it made clear that the intrusion resulting from a stop-and-frisk-style search was significant.(fn20) The Court limited its holding to situations where an officer has a reasonable belief that criminal activity is ongoing and that the suspect is armed and dangerous.(fn21)

B. Getting from Terry to Johnson

1. Applying Terry to Traffic Stops

The first relevant decision following Terry occurred nearly a decade later in 1977.(fn22) Pennsylvania v. Mimms expanded the authority of a police officer to conduct Terry stop-and-frisks to situations where the only criminal activity involved was a routine traffic stop.(fn23) Mimms involved a police officer stopping an individual for a routine traffic violation.(fn24) While the driver was in the car, the officer noticed a bulge in the driver's jacket that the officer suspected was a weapon.(fn25) Concerned for his own safety, the officer ordered the driver out of the car and conducted a pat-down where it was discovered the driver was carrying a loaded gun.(fn26)

Mimms's primary focus was on the constitutionality of the seizure that occurred when the police officer ordered the driver out of the car.(fn27) Applying part of the balancing test called for by Terry, the

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Court found that ordering the driver out of the car was only a "de minimis" intrusion into the driver's personal liberty when weighed against the safety concerns of the officer.(fn28) It is significant that a complete Terry analysis did not occur in Mimms. Instead of analyzing the reasonableness of both the search and the seizure, the Court looked only at the seizure and explicitly rejected the necessity to analyze the search.(fn29) This is particularly troublesome because of the significant emphasis the Court in Terry placed on its conclusion that a pat-down was far more than a de minimis intrusion.(fn30)

The Mimms decision only briefly discussed the reason why having to step out of a car was a de minimis intrusion.(fn31) Further, Mimms only addressed the subsequent pat-down in one paragraph at the end of the opinion.(fn32) Relying on Terry, the Court simply determined the driver was legitimately stopped and the officer had a reasonable belief the suspect was armed and dangerous.(fn33) At no point did Mimms discuss the intrusion into the driver's personal liberty stemming from the pat-down.(fn34) The issue of any suspected criminal activity was also not addressed. As a result, Mimms substantially increased the authority of police officers when compared to the authority provided by Terry.(fn35)

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While Terry seemed to make clear that situations like Mimms would have to be addressed on their specific facts, Mimms only undertook a truncated Terry analysis.(fn36) There was no discussion of suspected criminal activity and no analysis of the serious intrusion into personal liberty resulting from a pat-down.(fn37)

2. Bringing Passengers under Terry

In Maryland v. Wilson, the Supreme Court extended its analysis of traffic stops to include passengers in vehicles.(fn38) Wilson involved a passenger of a car that was pulled over for speeding.(fn39) When the police officer noticed that the passenger appeared nervous, the officer asked the passenger to step out of the vehicle.(fn40) While the passenger was exiting the vehicle cocaine fell out of the car and onto the ground.(fn41) The passenger was arrested and charged with possession...