Jan
30

Another Ho Hum Slap At The Fourth Amendment?

The Fourth Amendment prohibition against warrantless search and seizures sounds impressive. Standing alone, this looks like a mighty oak providing shelter against an overreaching government. However, the amendment more nearly represents a bush now overtaken with weeds. The various exceptions to the warrant requirement all but make the Fourth Amendment just another piece of vegetation on the state's farm.

This week's decision in Arizona v. Johnson settles decisively a point the Court had not made explicit in recent cases: Cops stopping a car have the right on reasonable suspicion of a violation of the law have the right to detain and frisk all of the occupants of the car if they have good reason to believe the occupants might be armed.

The automobile exception to the warrant requirement revolves around the twin towers of a concern for officer safety and the assertion that we do not have a reasonable expectation of privacy while in our cars. Johnson does not forge radically new ground, it mere extends the holdings of earlier cases in such a way as to draw the only logical conclusion. If there is a right to stop and frisk people engaged in shady conduct, Terry v. Ohio, 392 U.S. 1 (1968), that right extends people in cars. Berkemer v. McCarty, 468 U.S. 420 (1984). Once a car is stopped, police may lawfully order the driver out of the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977); the court later held passengers could also be ordered out of the car. Maryland v. Wilson, 519 U.S. 408 (1997). These passengers have standing to challenging the seizure. Brendlin v. California, 551 U.S. 249 (2007). This week the court left no doubt that a passenger could be ordered out of the searched. if the officer has good reason, apparently no matter how flimsy, to believe the person might be armed and dangerous.

In Johnson, officers in a gang unit stopped a car because of a traffic infraction. (The classic pretext.) Johnson, a passenger in the rear seat, wore a blue bandana and other clothing consistent with membership in the Crips. He also had a scanner in his jacket pocket. He told the officer that he was from another town in which the Crips were active, and that he had served time in prison for burglary. The officer then asked the man out of the car and decided to search his as she concluded he might be armed.

Johnson tried to argue that his decision to get out of the car was consensual and the search of him was not related to the stop. The Court wasn't buying this. The man could be a criminal, the court reasoned, and the officer had reason to pat him down as part of the auto stop.

The decision has the sort of exhausted feel of a terminally ill patient being told he needs yet another transfusion. "We're trying to save your life," the doctor says. But both know the man is dying. So, too, with the Fourth Amendment. The court's concern about all that can wrong at an auto stop has it in a frame of mind to excuse ever increasing invasions of the right to be let alone.

Somehow this case doesn't inspire me with thoughts that Big Brother is watching. I've grown so used to his glare and the court's blithe acquiescene to the imperatives of power that I no longer think of the eyes that peer through me. Instead, my reaction falls more along the lines of "Ho Hum." Another brick in a wall becoming impenatrable. Perhaps that is what is so truly sad about Arizona v. Johnson. I would not have expected the court to rule otherwise.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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