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Departments : Point of Law

Updating Weapons Frisks

The Supreme Court adds a twist.

April 01, 2009  |  by Devallis Rutledge - Also by this author

"In sum," the court continued, "as stated in Brendlin, a traffic stop of a car communicates to a reasonable passenger that he or she is not free to terminate the encounter with the police and move about at will. Nothing happened in this case that would have conveyed to Johnson that, prior to the frisk, the traffic stop had ended or that he was otherwise free to depart without police permission. The officer surely was not constitutionally required to give Johnson an opportunity to depart the scene after he exited the vehicle without first ensuring that, in so doing, she was not permitting a dangerous person to get behind her." (Arizona v. Johnson)

The Supreme Court did not decide whether the facts known to the officer did or did not amount to a reasonable suspicion to believe Johnson was armed and dangerous. That question was to be answered by the Arizona court on remand. The Supreme Court did decide, however, that there is no requirement that officers have reasonable suspicion to believe that a passenger in a lawfully stopped vehicle is involved in criminal activity in order to perform a frisk where supported by reasonable suspicion of danger.

Combining Principles

The Johnson case is an example of the court combining the rulings of various decisions when analyzing search and seizure issues. The rule of Brendlin is that passengers are necessarily detained when their vehicle is stopped; the rule of Terry is that detainees can be searched based on reasonable suspicion they are armed and dangerous. Combining these two rulings, the court created the new Johnson rule that whenever an officer has reasonable suspicion to believe that a passenger at a lawful traffic stop may be armed and dangerous, a weapons pat-down search is permissible.

Safety and Control

Note that in Johnson, the officer did not have the suspect get out of the car until after she had noticed the colors and the scanner and found out that he was a con from a gang neighborhood. During this time, Johnson was seated inside a vehicle, protected by steel car doors, with access to places of concealment of possible weapons inside the car and with portions of his body and clothing unobservable from the officer's viewpoint. Also, he happened to have a concealed handgun on him.

In Pennsylvania v. Mimms, the Supreme Court noted statistics showing that 30 percent of officers shot in the line of duty were shot as they approached someone seated in a vehicle. To reduce this risk, the court held in Mimms that officers making a traffic stop may routinely order the driver out. No reason need be given.

In Maryland v. Wilson, the court extended this rule to all passengers. All passengers in a lawfully stopped vehicle may be ordered out. No reason need be given.

In case either a driver or passenger is armed and dangerous, promptly ordering him out reduces his cover and concealment and his access to weapons stashed in the vehicle. It gets him outside into plain view. It permits the officer to pat down the person who has a suspicious bulge beneath his clothing at the waistline. (Pennsylvania v. Mimms) It allows a frisk based on reasonable suspicion that he may be armed and dangerous—even if there is no separate suspicion of criminal wrongdoing. (Arizona v. Johnson)

While ordering occupants out is not necessary or appropriate for all vehicle stops, the option is lawfully available, where you feel the need to exercise it. Naturally, sound safety and survival techniques are always the primary consideration.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 11 books, including "Courtroom Survival, The Officer's Guide to Better Testimony."

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