When Can Cops Pat You Down? State Takes Case to U.S. Supreme Court Today

The case of an Arizona police officer who found a gun after she patted down the passenger of vehicle who had committed no crime goes before the U.S. Supreme Court on Tuesday.

The state, as represented by the Arizona Attorney General Terry Goddard, will argue that such pat-downs -- and using evidence found during the pat-down to bust someone -- are perfectly legal. A divided Arizona Court of Appeals decision has already deemed the search wasn't constitutional in this case and overturned Johnson's conviction.

The AG's news release (reprinted below) describes the person at issue, Lemon Montrea Johnson, as an ex-con Crips member who was packing an illegally concealed handgun. Naturally, it's great to get a guy like that off the streets, and officer safety should be a major concern to all law-abiding citizens.

But if the U.S. Supreme Court agrees with Arizona, cops may continue to search anyone they come in contact with under the guise of protecting officer safety. While the Tucson-area test case suggests cops may occasionally strike gold with such searches, the fact that Johnson hadn't actually been doing anything wrong when he was searched certainly raises questions about strength of the U.S. Constitution's Fourth Amendment protection against unreasonable search and seizure in modern times.

As a Supreme Court watchdog blog points out:

The state of Arizona, with the support of the Justice Department and others, is clearly reaching for a sweeping ruling that would expand the discretion of police to make weapons searches as a routine gesture in public encounters with people the officers have stopped, for whatever reason.

At the least, such searches could lead to more embarrassing "whoops, that's your penis" kind of searches as seen in a popular YouTube.com video.

At worst, some cops would abuse this power, using pat-downs during routine traffic stops in the hopes of turning a speeding ticket into something more interesting.

Here's the AG's release:


Attorney General's Office to Argue State v. Johnson

at U.S. Supreme Court

(Phoenix, Ariz. - Dec. 8, 2008) The U.S. Supreme Court will hear oral arguments on Tuesday in an Arizona case regarding a Tucson police officer's pat-down search of Lemon Montrea Johnson during a traffic stop.

Assistant Attorneys General Joe Parkhurst and Kent Cattani will represent the State in the case of State of Arizona vs. Lemon Montrea Johnson on Tuesday at 8 a.m. MST.

The State will argue that a police officer may conduct a pat-down search of a passenger of a vehicle following a lawful traffic stop when the officer has an articulable basis for believing that the passenger might be armed and dangerous. The state will further contend that an officer is not required to have reason to believe the passenger is committing, or has committed, a criminal offense to conduct a pat-down search for officer safety reasons.


This case involves a valid traffic stop for a registration violation and a pat-down search of the backseat passenger. Although the police officer lacked articulable grounds to believe that the passenger was committing or had committed a criminal offense, the officer reasonably believed that the passenger might be armed and posed a safety risk.

On April 19, 2002, police officers who were members of the state gang task force were patrolling the "Sugar Hill" area of Tucson, which was known to be a Crips street gang neighborhood. One of the officers ran the license plate number on a vehicle traveling on a major street bounding the Sugar Hill neighborhood, and the plate number came back with a mandatory insurance suspension, a civil infraction warranting a citation. The task force initiated a traffic stop of the vehicle. The vehicle had three occupants - a driver, a front-seat passenger, and a back-seat passenger.

While Officer Maria Trevizo approached the vehicle on foot, she noticed Johnson, the back-seat passenger, look back at the police vehicle, say something to the people in the front seat, then continue to look back at the police vehicle. While the other detectives contacted the front-seat passengers, Officer Trevizo approached Johnson. She asked him for identification. She noticed that he had a police scanner in his jacket pocket. She also noted that he was wearing colors associated with the Crips gang. Johnson told Officer Trevizo that he was from Eloy, a town in which Officer Trevizo knew that the Trekkle Park Crips were the predominant street gang. Johnson also told Trevizo that he had done prison time for burglary and had been out of prison for about a year.

Officer Trevizo asked Johnson to exit the vehicle, intending to talk to Johnson away from the other passengers to gather intelligence about his gang. Once he got out of the vehicle, Officer Trevizo asked him to turn around so that she could pat him down. She testified that she patted him down because the information she had obtained gave her reason to believe that Johnson might have a weapon. When she conducted a pat-down search for weapons, she found a handgun. Johnson was arrested and subsequently convicted for possession of a weapon by a prohibited possessor and possession of marijuana.

The legal issue concerns whether the pat-down violated requirements of the Fourth Amendment. In a divided opinion, the Arizona Court of Appeals reversed Johnson's conviction because it concluded that the pat-down search was not permissible in the circumstances of this case.

The Arizona Supreme Court declined to accept review, but the United States Supreme Court subsequently granted certioriari in the case.

PDF of this release available at



-- Ray Stern




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