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Supreme Court Argument Report: A Dirty Look and a Bulge
Law.com
December 10, 2008
In a Fourth Amendment case argued Tuesday at the Supreme Court, the justices considered whether, during a traffic stop, a police officer may conduct a pat-down search of a passenger if the officer believes the passenger to be armed and dangerous, but does not have reasonable grounds to believe he or she is engaging in criminal activity.
During the argument hour, several of the justices questioned the breadth of the standard advocated by the government for determining the reasonableness of pat-down searches, and the Court grappled with the issue of when a seizure ends in the context of a vehicle stop.
The respondent in the case, Lemon Montrea Johnson, was a passenger in a car stopped in Arizona for an insurance infraction. The officer, hoping to question Johnson about gang activity, asked him to get out of the car and then patted him down. Johnson sought to suppress the gun and marijuana that the officer found on him, claiming a violation of his Fourth Amendment rights against unreasonable searches and seizures.
Arizona Assistant Attorney General Joseph L. Parkhurst fielded questions regarding various situations in which the state would consider officers justified in conducting pat-down searches.
"In your view, if the officer is just looking for the man in the gray overcoat and he stops someone on the street and says, 'have you seen a man with a gray overcoat,' and the person says, 'well, I saw something like that,' can he just suddenly spin him around and pat [down] that person?" Justice Anthony Kennedy asked Parkhurst.
"If the officer possesses articulable facts that this person is immediately dangerous to that officer," Parkhust answered.
Justice David Souter followed up on this line of questioning, asking Parkhurst if a police officer on the street would be justified in patting down "an individual as to whom he had no suspicion a crime was being committed, had been or was about to be, but he said that guy looks like trouble for anybody who has anything to do with him."
"Well, he would also have to possess articulable reasons that ... a reasonably prudent person would be satisfied with that this person is an immediate danger to him," Parkhurst answered.
"The individual gives him mean looks and he has a bulge of something on his hip," Souter said.
"Well, that could very well support a pat down," Parkhurst said.
Souter later asked the same question of Assistant to the Solicitor General Toby J. Heytens, who argued for the United States as amicus curiae supporting Arizona.
In the government's view, Souter asked, would the reasonableness rule extend to a sidewalk encounter in which a police officer "has no suspicion that the individual he wants to talk to has been, is or is about to commit a crime, but if the officer chooses to initiate the conversation ... in effect, if he can articulate any suspicion, like we'll say the dirty look and the bulge on the side, he can go ahead and pat down. Is that -- is that your view?"
"At the end of the day, Justice Souter, that is our view," Heytens said.
"May I ask you if the Department of Justice has ever taken this position before?" Justice John Paul Stevens asked.
"I'm not aware of whether we have had to take this position before, Justice Stevens," Heytens told him.
"You don't think they have, do you? It's a rather extreme position," Stevens said.
Souter jumped in again: "I think the problem that sort of drives the questioning is that if you extend the rule as far as you want to extend it, we have to take into consideration that the standard of articulable suspicion is the standard that, in practical terms, can pretty well always be met."
"You know Benjamin Franklin's remark, it's great to be a reasonable person because you can think of a reason for anything you do," Souter said.
Another large portion of the argument hour was devoted to the issue of when, during their encounter, the officer's seizure of Johnson ended. Whether the pat-down search occurred during the time of the seizure would weigh toward the reasonableness of the search.
While questioning Parkhurst, Justice Ruth Bader Ginsburg pointed out that the officer herself had testified that, at the time of the pat-down search, "she thought the seizure part was over. She asked [Johnson] would he get out of the car, and then she said -- I think she used the word 'consensual' herself, that it was a consensual encounter."
Parkhurst responded that the issue of whether a reasonable person would feel that they were free to leave the situation is governed by an objective standard. "We don't need to credit necessarily the officer's own subjective beliefs as to whether the subject was free to leave or not."
Mayer Brown's Andrew J. Pincus, representing Johnson, faced tough questioning on the standard for determining when the seizure ended and the consensual encounter began.
"What are the facts that show that a reasonable person in the passenger's position would have believed himself free to terminate the encounter?" Justice Stephen Breyer asked Pincus.
One factor, Pincus told the justice, is "that the officer herself believed that she had communicated the fact that the interaction was voluntary."
"The question is, how did she do that?" Breyer asked.
"Well -- "
"She said, "You can leave whatever time you want"?
"She did not do it that way," Pincus said.
Breyer seemed skeptical: "So you're standing there and the policeman is in front of you, and they have stopped the car, and the woman who is the policeman says, 'I want to search you.' Do you think you're free to leave?"
Stevens lamented the fact that Johnson hadn't testified about the issue. "So nobody asked him whether he thought he was free to leave -- which would have solved a lot of problems," he said.
Some members of the Court seemed swayed by the idea that the police officers' need to protect themselves and others in the field should influence the reasonableness standard for pat-down searches. Parkhurst argued that the Court "has recognized over and over again that traffic stops pose unique heightened dangers to police officers," but several of the justices discussed the issue outside of that context.
"[W]e've been talking about the officer approaching somebody on the street who has the bulge in his pocket -- what if the person with the bulge in his pocket approaches the officer? Can the officer at that point, even if he has no suspicion that crime is afoot, conduct a pat down?" Chief Justice John Roberts Jr. asked Pincus
"No, I don't think so, Your Honor. I think that -- " Pincus began.
"This is like the rule in the Old West that the sheriff has to wait for the defendant to draw first?" the chief justice asked.
Breyer also pressed Pincus on this point, presenting a series of hypotheticals involving police activity.
"A policeman is on protective duty. The individual he is protecting is approached by a member of the Crips gang, who has a bulge in his pocket. Can the police, with reasonable grounds to think that that person is armed, pat down that person? Or is he supposed to wait until the gun comes out of the pocket and the person who is being protected is shot?" Breyer asked.
"A policeman is on a bridge. Somebody stops the car in the middle of the bridge. Traffic is held up in all directions. The policeman goes to try to remove the car from the bridge. In the back seat is a member of the Crips gang with a bulge in his pocket. Is the policeman supposed to ignore that?"
"I mean, policemen do many things, and once you tell me that we're going beyond the facts of this case, I can think of all kinds of hypotheticals that aren't so hypothetical, and I become uncertain about when the policeman can and when he cannot," Breyer told Pincus.
The case is Arizona v. Johnson.
Laurel Newby is a senior editor with Law.com.
