US Supreme Court says passenger can be frisked

[thundley4]

WASHINGTON—The Supreme Court ruled Monday that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.

The court on Monday unanimously overruled an Arizona appeals court that threw out evidence found during such an encounter.

The case involved a 2002 pat-down search of an Eloy, Ariz., man by an Oro Valley police officer, who found a gun and marijuana.

The justices accepted Arizona's argument that traffic stops are inherently dangerous for police and that pat-downs are permissible when an officer has a reasonable suspicion that the passenger may be armed and dangerous.

The pat-down is allowed if the police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public," Justice Ruth Bader Ginsburg said./quote]Link

Further erosion of the right against illegal search and seizure?

[Chris_]

WASHINGTON—The Supreme Court ruled Monday that police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so.

The court on Monday unanimously overruled an Arizona appeals court that threw out evidence found during such an encounter.

The case involved a 2002 pat-down search of an Eloy, Ariz., man by an Oro Valley police officer, who found a gun and marijuana.

The justices accepted Arizona's argument that traffic stops are inherently dangerous for police and that pat-downs are permissible when an officer has a reasonable suspicion that the passenger may be armed and dangerous.

The pat-down is allowed if the police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public," Justice Ruth Bader Ginsburg said./quote]Link

Further erosion of the right against illegal search and seizure?

Not really.

There is no USC right to fly.  You wanna fly, you gotta put up with pretty much anything.

And if you don't like it, I'll personally volunteer to make sure you aren't a danger.  I flew 265,000 safe miles last year and don't want my streak ruined.

[thundley4]

Flying is far different from being the passenger sitting in a car pulled over for speeding or failure to use a turn signal.  How long before we have checkpoints  going into and out of major cities, in the interest of "Public Safety", of course.

[Chris_]

Flying is far different from being the passenger sitting in a car pulled over for speeding or failure to use a turn signal.  How long before we have checkpoints  going into and out of major cities, in the interest of "Public Safety", of course.

I was just hitting your analogy.

Now, to the point at hand. The USC has found that your car is like your home.  THEORETICALLY, you have 4th Amendment rights.  But, if you have ever watched an episode of "COPS" you know that no such rights exist.  The dialog usually goes down like:

Cop: May I have your permission to search your car?
Suspect: No
C: Then (handcuffs click) I am placing you under my custody -- you are not under arrest but you cannot leave.
S: Why?
C: We are having police dogs come here to check your vehicle.
(The dogs always find drugs....)

I was just telling my wife last night that I am sure I would pretend to be "hinkey" should the cops pull me over and insist on my 4th Amendment rights (having of course no drugs in or around my person or car) just so I could 1) get them to expend resources in an attempt to undermine my 4th Amendment rights and 2) sue them for abridging my 4th Amendment rights.

Is it worth it to me?  Hell yes!  A few hours to secure my Constitutional Rights?  Remind me to tell you about how I screwed a major company that used the local police to "bed check" their managers by checking everyone's name who came into a hotel.  I had fun for a whole night!

So I think we agree on the underlying issue here.

[JohnnyReb]

The pat-down is allowed if the police "harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public," Justice Ruth Bader Ginsburg said.[/color]

Why does this make me wonder what's going on in her pointy little head?

[thundley4]

I was just hitting your analogy.

Now, to the point at hand. The USC has found that your car is like your home.  THEORETICALLY, you have 4th Amendment rights.  But, if you have ever watched an episode of "COPS" you know that no such rights exist.  The dialog usually goes down like:

I was just telling my wife last night that I am sure I would pretend to be "hinkey" should the cops pull me over and insist on my 4th Amendment rights (having of course no drugs in or around my person or car) just so I could 1) get them to expend resources in an attempt to undermine my 4th Amendment rights and 2) sue them for abridging my 4th Amendment rights.

Is it worth it to me?  Hell yes!  A few hours to secure my Constitutional Rights?  Remind me to tell you about how I screwed a major company that used the local police to "bed check" their managers by checking everyone's name who came into a hotel.  I had fun for a whole night!

So I think we agree on the underlying issue here.

It just seems like some of the Courts rulings are letting police have the right to go on fishing expeditions.

[formerlurker]

The facts of the case:

On the night of April 19, 2002, Maria Trevizo, a police officer assigned to the state gang task force, was on patrol with two other officers in a neighborhood known for gang-related activity near Tucson, Arizona. See Arizona v. Johnson, 170 P.3d 667, 668 (2007). The officers stopped a vehicle after discovering it had a mandatory license suspension. See id. The officers did not suspect gang-related activity or other criminal conduct when they stopped the vehicle. See id. at 669. Trevizo observed Lemon Johnson, a passenger in the vehicle’s back seat, looking back at the officers and talking to the people in the vehicle’s front seats as the officers made the stop. See id. Trevizo believed this behavior to be “unusual” and “it made her nervous,” but she had no reason to believe that Johnson either was engaging or was about to engage in criminal activity. Id. Another officer told all the vehicle’s occupants to put their hands in view and asked if any of the occupants had weapons, to which they all replied no. See id. While another officer had the driver exit the vehicle so the officer could take his basic information, Trevizo noted that Johnson showed signs of gang affiliation: he was dressed entirely in blue, with a blue bandanna, a common sign of affiliation with the Crips gang. See id. at 668–69 Trevizo also noted that Johnson “had a scanner in his jacket pocket,” which “concerned” her because, although scanners are not illegal, it is unusual for people to carry scanners unless they are going to be involved in criminal activity or want to avoid the police. Id. at 669. Trevizo began talking with Johnson while he was still in the vehicle, and in response to her questions, Johnson said that he was from another area, where Officer Trevizo knew a Crips gang was active, and that he had been out of prison for about a year after serving time for burglary. See id.

At this point, Trevizo decided it would benefit her gang task force to gather intelligence from Johnson about his “possible gang” and its activities and decided “to isolate him from the other occupants of the vehicle in the hope he would contribute more information.” Id. Once Johnson exited the vehicle, Trevizo “asked him to turn around” and “patted him down for officer safety because [she] had a lot of information that would lead [her] to believe” that Johnson might be armed. Id. (alterations in original). Although Trevizo did not inform Johnson that she intended to pat him down when she asked him to get out, she decided to do so as he exited the vehicle. See id. During the pat-down search, Trevizo discovered a gun and arrested Johnson. See id. The trial court denied Johnson’s motion to suppress the evidence found in Trevizo’s pat-down search, and the jury found Johnson guilty of possession of a weapon by a prohibited possessor and possession of marijuana. See id. at 669–70.

Johnson appealed the trial court’s denial of his motion to suppress, and the Arizona Court of Appeals reversed his conviction. See id. at 674. The court of appeals found that Trevizo’s interaction with Johnson had become a consensual encounter separate from any seizure associated with the original traffic stop. See id. at 673. Therefore, the court of appeals ruled that, following the standard required for a search articulated in Terry v. Ohio, Trevizo had no right to conduct a pat-down search of Johnson if she did not have a reasonable suspicion that criminal activity may have been occurring. See id. at 670 (quoting Terry v. Ohio, 392 U.S. 1, 88 (1968)).

After the Arizona Supreme Court denied review without comment, Arizona appealed to the Supreme Court of the United States. The Supreme Court granted certiorari to determine whether a reasonable suspicion that an individual is armed and dangerous is a proper basis to conduct a protective pat-down search, absent a reasonable suspicion that criminal activity may be occurring. See Question Presented (No. 07-1122).

http://topics.law.cornell.edu/supct/cert/07-1122


You know you really can't look at this in absolutes here, and have to consider the circumstances.    Car full of gang members, in an area that is highly dangerous.   Vehicle pulled over for being uninsured.    So far, no problems.    Known gang member in vehicle, whom officer assigned to gang unit would like to talk to.    She did not come up to him on the street, he was in a vehicle that being operated without insurance, thus being operated illegally.    Gang member lied about being armed, pat down shows he is armed.    Was the pat down prudent?  clearly it was.   Illegal?   gray area.

I don't see this as Jethro cop pulling over law abiding taxpayer to go on a fishing expedition. 

I need to read the entire decision before commenting on the precedence that they set in this decision.   

[formerlurker]

this Court held that a “stop and frisk”may be conducted without violating the Fourth Amendment’s ban onunreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a re-quirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk(patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255

http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf

I think the standard was met here. 

[thundley4]

I don't even know what gang signs are here in this town, they don't publish them in the local paper or publicize them on TV.  I think this is kind of a vague argue to frisk someone because you think they are dangerous.

As a blue bandanna was mentioned as being a gang sign, I'm betting there was some racial profiling associated with this.  I've seen many bikers that wear blue bandannas, but I bet they aren't being searched for that reason.

[Eupher]

I don't even know what gang signs are here in this town, they don't publish them in the local paper or publicize them on TV.  I think this is kind of a vague argue to frisk someone because you think they are dangerous.

As a blue bandanna was mentioned as being a gang sign, I'm betting there was some racial profiling associated with this.  I've seen many bikers that wear blue bandannas, but I bet they aren't being searched for that reason.

I think cops are generally in a better place to know about specific gang-related methodologies, like what they wear and what color it is, especially in their neighborhoods. Failure to recognize that might get 'em a bullet sandwich.

Bikers may wear a blue bandanna, but I've never seen a biker that wore a blue leather vest or blue chaps.

[Chris_]

I think cops are generally in a better place to know about specific gang-related methodologies, like what they wear and what color it is, especially in their neighborhoods. Failure to recognize that might get 'em a bullet sandwich.

Bikers may wear a blue bandanna, but I've never seen a biker that wore a blue leather vest or blue chaps.

Well, not in BIKER bars anyway...

[formerlurker]

I don't even know what gang signs are here in this town, they don't publish them in the local paper or publicize them on TV.  I think this is kind of a vague argue to frisk someone because you think they are dangerous.

As a blue bandanna was mentioned as being a gang sign, I'm betting there was some racial profiling associated with this.  I've seen many bikers that wear blue bandannas, but I bet they aren't being searched for that reason.

The officer was assigned to a gang unit, and the area the vehicle was pulled over was known for gang activity.    The suspect admitted he was just released from jail.     

This wasn't a vehicle full of boy scouts. 

[thundley4]

The officer was assigned to a gang unit, and the area the vehicle was pulled over was known for gang activity.    The suspect admitted he was just released from jail.     

This wasn't a vehicle full of boy scouts. 

Last I knew the Boy Scouts had yellow bandannas.    Still, you can find some cases where the search found something, but it can still lead to fewer and fewer rights to privacy.

[formerlurker]

Last I knew the Boy Scouts had yellow bandannas.    Still, you can find some cases where the search found something, but it can still lead to fewer and fewer rights to privacy.

It was a pat down for weapons, on a convicted felon, [who lied to police officer about having a weapon], who was in the company of known gang members, in a vehicle being driven illegally.

I do not think the police stepped over the line here.

[thundley4]

It was a pat down for weapons, on a convicted felon, [who lied to police officer about having a weapon], who was in the company of known gang members, in a vehicle being driven illegally.

I do not think the police stepped over the line here.

In this case, maybe they didn't, but the USSC ruling sure does set the precedent for police to step over the line in the future. That is what's bad about rulings like this. IMO

[formerlurker]

In this case, maybe they didn't, but the USSC ruling sure does set the precedent for police to step over the line in the future. That is what's bad about rulings like this. IMO

See my prior post.   This Court did not set the precedent, the 1968 Court in Terry v. Ohio did.   The standard from that decision as I posted above had been met here in this instance.   

[Ptarmigan]

My understanding is that a warrant is only needed when there is expectation of privacy, where you cannot see a person, like at a house or business. Now, if it is out in the open, where people can see it, a warrant is not needed.

[thundley4]

See my prior post.   This Court did not set the precedent, the 1968 Court in Terry v. Ohio did.   The standard from that decision as I posted above had been met here in this instance.   

In my opinion Terry v Ohio was a different situation, the suspects were observed acting in a suspicious manner , possibly casing a store for robbery. However, wearing a particular type of clothing, and carrying a legal device is not always suspicious.  How many blue jumpsuits did Elvis wear?  As for carrying a scanner, I can think of two valid reasons right off the bat.  Reporters routinely carry them, and storm chasers also do. Oh and I know of a couple of people that are volunteer EMTs and fireman that also carry them.  So, it still seems like profiling has to enter into the picture, to give the police a reason to search the person in the most recent case.

 Either way, it seems like the USSC is limiting the rights set forth under the 4th Amendment . It's just been going on longer than I realized.

[formerlurker]

In my opinion Terry v Ohio was a different situation, the suspects were observed acting in a suspicious manner , possibly casing a store for robbery. However, wearing a particular type of clothing, and carrying a legal device is not always suspicious.  How many blue jumpsuits did Elvis wear?  As for carrying a scanner, I can think of two valid reasons right off the bat.  Reporters routinely carry them, and storm chasers also do. Oh and I know of a couple of people that are volunteer EMTs and fireman that also carry them.  So, it still seems like profiling has to enter into the picture, to give the police a reason to search the person in the most recent case.

 Either way, it seems like the USSC is limiting the rights set forth under the 4th Amendment . It's just been going on longer than I realized.

The following standard of the 1968 Court was met:

this Court held that a “stop and frisk”may be conducted without violating the Fourth Amendment’s ban onunreasonable searches and seizures if two conditions are met. First, the investigatory stop (temporary detention) must be lawful, a re-quirement met in an on-the-street encounter when a police officer reasonably suspects that the person apprehended is committing or has committed a crime. Second, to proceed from a stop to a frisk(patdown for weapons), the officer must reasonably suspect that the person stopped is armed and dangerous. For the duration of a traffic stop, the Court recently confirmed, a police officer effectively seizes “everyone in the vehicle,” the driver and all passengers. Brendlin v. California, 551 U. S. 249, 255

The occupants of the vehicle were known gang members.   This is not racial profiling. 

[thundley4]

The following standard of the 1968 Court was met:

The occupants of the vehicle were known gang members.   This is not racial profiling. 

Still they were not committing any crime at the time. Possession of the gun would not have been disclosed without the search.  In any case, I still believe that the USSC is slowly eroding personal rights, and once they are gone, it is impossible to restore them.