Whether a police officer may lawfully frisk a passenger in a vehicle stopped for a minor traffic infraction when the officer has no reason to believe that the passenger has committed, is committing, or is about to commit a crime, but nevertheless reasonably suspects the passenger to be armed and dangerous?
The facts in the Johnson case are as follows:
“On April 19, 2002, Officer Maria Trevizo and Detectives Machado and Gittings, all members of Arizona’s gang task force, were on patrol in Tucson near a neighborhood associated with the Crips gang. At approximately 9 p.m., the officers pulled over an automobile after a license plate check revealed that the vehicle’s registration had been suspended for an insurance-related violation. Under Arizona law, the violation for which the vehicle was stopped constituted a civil infraction warranting a citation. At the time of the stop, the vehicle had three occupants–the driver, a front-seat passenger, and a passenger in the back seat, Lemon Montrea Johnson. In making the stop the officers had no reason to suspect anyone in the vehicle of criminal activity.
The three officers left their patrol car and approached the stopped vehicle. Machado instructed all of the occupants to keep their hands visible. He asked whether there were any weapons in the vehicle; all responded no. Machado then directed the driver to get out of the car. Gittings dealt with the front-seat passenger, who stayed in the vehicle throughout the stop. While Machado was getting the driver’s license and information about the vehicle’s registration and insurance, Trevizo attended to Johnson.
Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. She also noticed a scanner in Johnson’s jacket pocket, which ‘struck her as highly unusual and cause for concern,’ because ‘most people’ would not carry around a scanner that way ‘unless they’re going to be involved in some kind of criminal activity or are going to try to evade the police by listening to the scanner.’ In response to Trevizo’s questions, Johnson provided his name and date of birth but said he had no identification with him. He volunteered that he was from Eloy, Arizona, a place Trevizo knew was home to a Crips gang. Johnson further told Trevizo that he had served time in prison for burglary and had been out for about a year.
Trevizo wanted to question Johnson away from the front-seat passenger to gain ‘intelligence about the gang Johnson might be in.’ For that reason, she asked him to get out of the car. Johnson complied. Based on Trevizo’s observations and Johnson’s answers to her questions while he was still seated in the car, Trevizo suspected that ‘he might have a weapon on him.’ When he exited the vehicle, she therefore ‘patted him down for officer safety.’ During the patdown, Trevizo felt the butt of a gun near Johnson’s waist. At that point Johnson began to struggle, and Trevizo placed him in handcuffs. Johnson was charged in state court with possession of a weapon by a prohibited possessor.”
The Supreme Court ruled that Officer Trevizo’s patdown of Johnson did not violate the prohibition against unreasonable searches and seizures contained in the Fourth Amendment to the U.S. Constitution for the following reasons:
1. A traffic stop of a car communicates to a reasonable passenger that he is not free to end the encounter with the police and move about at will.
2. Nothing occurred in this case that would have communicated to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free to leave the scene without the permission of the police.
3. Officer Trevizo was not constitutionally required to give Johnson an opportunity to leave the scene after Johnson got out of the car without first ensuring that she was not permitting a dangerous person to get behind her.