Arizona v. Johnson - Oral Argument - December 09, 2008

Arizona v. Johnson

Media for Arizona v. Johnson

Audio Transcription for Opinion Announcement - January 26, 2009 in Arizona v. Johnson

Audio Transcription for Oral Argument - December 09, 2008 in Arizona v. Johnson

John G. Roberts, Jr.:

We will hear argument first this morning in Case 07-1122, Arizona v. Johnson.

Mr. Parkhurst.

Joseph L. Parkhurst:

Mr. Chief Justice, and may it please the Court: Petitioner asks that this Court apply the principles established in Pennsylvania v. Mimms to uphold the pat-down search of a vehicle passenger seized during a lawful traffic stop.

Mimms established that a traffic stop satisfies Terry's first prong as to suspicion of criminal activity, and it also established that a pat down of a driver is justified if the officer has a reasonable suspicion that the driver is armed and dangerous.

Fourth Amendment searches must be reasonable, and the pat down in this case was reasonable.

And it is common -- it's a commonsense principle that the principles in Mimms also apply to passengers in the context of a traffic stop.

Anthony M. Kennedy:

I -- I didn't hear your -- your first -- in your opening.

Did you say that Mimms established that it's likely that he's armed and dangerous?

I missed that.

Joseph L. Parkhurst:

No, no.

That's not what I'm saying, Justice Kennedy.

Anthony M. Kennedy:

I'm sure it wasn't, but I -- I missed what you said on that point.

Joseph L. Parkhurst:

What I said is that Mimms establishes that a pat down is justified in the context of a traffic stop if the officer believes that the driver is armed and dangerous.

Anthony M. Kennedy:

Thank you.

Joseph L. Parkhurst:

Correct.

John G. Roberts, Jr.:

Do you agree that there's a point in an interaction that begins with a traffic stop, begins with a seizure, at which the nature of that interaction is changed so that it's no longer -- so that it becomes a consensual interaction and--

Joseph L. Parkhurst:

That -- yes, Chief Justice.

That can happen in a -- in a traffic stop.

There's no evidence in this particular case that there was any kind of evolution to a consensual encounter.

John G. Roberts, Jr.:

--Maybe I should rephrase the question.

Do you agree that it would be unconstitutional for an officer to conduct a pat down after an initial seizure while that same interaction still continues?

Joseph L. Parkhurst:

No, I disagree with that, Your Honor.

An officer can conduct a pat down any time it is reasonable in light of factors that the officer may notice about the individual.

If the -- if the individual presents an immediate danger to the officer or to the public, a pat down may be reasonable under the broad Fourth Amendment principles, even if this happens to be a consensual encounter or a--

Anthony M. Kennedy:

So -- so in your view, or I suppose the government's view -- well, I'll let the government argue for itself.

In your view, if the officer is just looking for the man in the gray overcoat and he stops someone on the street and says, have you seen a man with a gray overcoat, and the person says, well, I saw something like that, can he just suddenly spin him around and pat -- and pat that person?

Joseph L. Parkhurst:

--If -- if the officer possesses articulable facts that this person is immediately dangerous to that officer.

Ruth Bader Ginsburg:

Then you're doing away with the first Terry factor altogether.

You're saying all you need is a reasonable suspicion that the person is armed and dangerous.

What happened to the reasonable suspicion that a crime has just been committed or is in the course of being committed?