Posted by Orin Kerr:
Oral Argument in *Arizona v. Johnson*:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228876498
Today the Supreme Court held oral argument in Arizona v. Johnson, a
Fourth Amendment case on the stop-and-frisk power. You can read the
briefs [1]here, and the oral argument transcript is [2]here. At its
broadest level, the case raises the question of whether a police can
"pat down" a suspect for weapons if the office reasonably believes the
suspect poses a danger to him but there is no evidence that there is
criminal activity afoot.
In my view, the broad question in Johnson has a sense of unreality
about it. If a police officer reasonably believes that a suspect is
about to attack him, either with a knife or gun, then there will
almost always be criminal activity afoot. In Johnson, for example, the
defendant had just admitted that he was a felon, and the officer had
reason to think he was concealing a weapon: Those facts alone
justified a reasonable belief that criminal activity was afoot in the
form of concealing a weapon (a state offense in Arizona) or being a
felon in possession (state and federal). It's true that the officer
testified in Johnson that she wasn't subjectively thinking about that,
but that's irrelevant: The Fourth Amendment standard is
reasonableness, and reasonableness is based on what a reasonable
officer observed rather than what the officer was subjectively
thinking. See, e.g., [3]Devenpeck v. Alford.
More broadly, if the suspect is truly armed and truly dangerous to
the uniformed officer, that means there is cause that the suspect is
likely to commit the serious crime of assaulting a uniformed police
officer. Further, a lot of the scenarios that are easy to think up
involve facts where it is very hard to believe there would be
articulable facts the suspect is armed and dangerous: An officer can't
just walk up to someone and part them down because the person won't
have specific and articulable facts to believe they are armed and
dangerous. So in the end I think this problem is of more theoretical
interest than practical import, and is arguably not even raised by the
facts of the Johnson case.
In the end, I think Arizona v. Johnson should be a very easy and
narrow decision for the Justices. Johnson was still seized throughout
the stop because he was never given a sign that he could leave under
Brendlin v. California. The officer's testimony that she thought
Johnson was free to leave is irrelevant under Devenpeck and Whren (and
even if it were relevant, it's strikes me as pretty bogus). Also,
while the Az. Court of Appeals though that was relevant, its
conclusion was a matter of law, not a question of fact, and is
therefore entitled to no deference. Given that, Johnson was seized,
and the frisk was okay given the articuble facts of dangerousness. The
broader conceptual questions are interesting, but not likely to arise
very often and best left for another day.
References
1.
http://www.scotuswiki.com/index.php?title=Arizona_v._Johnson#Briefs_and_Documents
2. http://supremecourtus.gov/oral_arguments/argument_transcripts/07-1122.pdf
3. http://www.law.cornell.edu/supct/html/03-710.ZO.html
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