Posted by Orin Kerr:
Arizona v. Johnson:
http://volokh.com/archives/archive_2009_01_25-2009_01_31.shtml#1232986459
Back in December, I [1]blogged about the oral argument in Arizona v.
Johnson, a Fourth Amendment case on the stop-and-frisk power. As I
wrote at the time, "[a]t 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."
This morning the Supreme Court [2]handed down the decision in a
unanimous opinion by Justice Ginsburg. The Court limited its opinion
to how this power applies in a traffic stop setting. It held first
that the Terry v. Ohio power to detain is met in a traffic stop
setting "whenever it is lawful for police to detain an automobile and
its occupants pending inquiry into a vehicular violation." In other
words, a traffic violation is enough to trigger the Terry detention
power. Second, "To justify a patdown of the driver or a passenger
during a traffic stop, however, just as in the case of a pedestrian
reasonably suspected of criminal activity, the police must harbor
reasonable suspicion that the person subjected to the frisk is armed
and dangerous." That is, the police can pat-down the passenger in a
lawful traffic stop if the passenger is reasonably suspected of being
dangerous regardless of what other crimes are suspected.
This is a very short opinion, but off the top of my head I think
there are some interesting issues going on here. First, there is the
question of the constitutional status of traffic stops: Are they
essentially Terry stops, or are they just regulatory stops justified
by probable cause to believe a traffic violation occurred that don't
trigger the Terry rules? This opinion suggests that the Court largely
sees traffic stops as largely equivalent to Terry stops. Second, there
is the question of when a traffic stop ends: The Court finds "nothing"
to lead the passenger to believe the traffic stop had ended, which to
my mind suggests that traffic stops are ordinarily going to be
considered ongoing until the officer affirmatively indicates that it
is over. There's more in there, but I'll put this post up for now and
may return to the opinion later today.
References
1. http://volokh.com/posts/1228876498.shtml
2. http://www.supremecourtus.gov/opinions/08pdf/07-1122.pdf
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