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Supreme Court further entrenches Terry v. Ohio

Jan 28, 2009 Supreme Court further entrenches Terry v. Ohio

Terry v. Ohio wrongfully tramples on civil liberties. (Image from FBI’s website).

The United States is far from a truly free nation; nor are any other nations. Light a flame in a dried-out forest, and soon an uncontrollable inferno will rage beyond the control of the firesetter. Establish an overgrown criminal "justice" system that even outlaws marijuana, prostitution and gambling, and then try to rein it in. Just try, when over one million people rely on their livelihoods from receiving their pay from the criminal justice system, including judges, all other courthouse personnel, prosecutors, criminal defense lawyers, cops, and jailers; and when so many local economies rely on the local prisons for their tax base and for customers of local businesses. Adding to the lack of enough true freedom in the United States is the rest of the oppressive national security state comprised of the overgrown military, the CIA and all other intelligence agencies, and the FBI. Anybody who is all bright-eyed and bushy-tailed that all is honky dory with personal freedom in America needs a bucket of ice water dumped on him or her to wake up.

When conservative Supreme Court chief justice Roberts wants to dispel any notion that Terry v. Ohio, 392 U.S. 1 (1968) (allowing police stops and frisks for nothing more than reasonable articulable suspicion (make that prevarications working backwards from unlawful searches, by too many cops)), will ever be weakened in our lifetime, who better to assign the task of writing the latest Terry -strengthening/Fourth Amendment-weakening opinion than Justice Ruth Bader Ginsburg, who is generally on the Court’s comparatively liberal wing for Fourth Amendment issues, and who full well knows the ACLU vision of the Fourth Amendment from her tenure with that essential civil liberties organization?

On January 26, 2009, writing for a unanimous Supreme Court, Justice Ginsburg confirmed the constitutionality for all passengers to be seized for as long as the driver of a car lawfully stopped for a moving violation (unless the driver is then arrested, in which case the passengers may leave if they are not going to be arrested), in order to protect officer safety. Arizona v. Johnson, ___ U.S. ___ (Jan. 26, 2009). Consequently, the first condition for a Terry stop and frisk is met by the lawful stop of a vehicle for a moving violation and the temporary seizure of the vehicle’s occupants "pending inquiry into a vehicular violation." Johnson. Then, all the police need is reasonable, articulable suspicion that the suspect is armed and dangerous to pat the suspect for weapons. Johnson.Here, a police officer asked passenger Johnson to get out of a car stopped for a moving violation, to gather "intelligence" about the Crips gang, based on Johnson’s saying he was from Eloy, Arizona, which the cop knew was "home to a Crips gang." Johnson accepts, at least for sake of argument, that the police officer had reasonable, articulable suspicion to patdown Johnson for weapons after he got out of the car, which the cop claimed was done for "safety".

Johnson does the disservice of teaching a simple-to-understand but unjust rule (passengers in a car lawfully stopped for a moving violation are lawfully seized, and then may be patted down for weapons upon reasonable articulable police suspicion that they are armed and dangerous) that not only invites police abuse, but encourages it. Under  Whren v. U.S., 517 U.S. 806 (1996), the police may stop a car under the pretext of a moving violation, even when the cop’s motivation is to investigate the violation of drug laws or other criminal laws that have nothing to do with speeding and other moving violations. Unfortunately, Whren already encourages police prevarication about moving violations to justify car stops, and Johnson solidifies the grounds for such prevarication. And what if the police stop is motivated for driving while Black? Where will the stopped suspect get in challenging a driving while Black stop so long as the judge believes that the cop (and too few judges give careful enough examination to cops’ credibility at suppression motions hearings) witnessed a moving violation? Let’s face it, if a cop wants to find a lawful way to stop a car, s/he will find it or else instigate an unlawful stop that will pass muster in court (how many times have you experienced a cop tailgating you, trying to draw a foul by your speeding up to avoid being rear-ended?), unless the driver is one of the rare drivers who never accelerates even two miles over the speed limit, even when going down a steep hill? With the latter type of driver, the police can at least get a chance to approach and try to talk to the driver merely by following the driver until he or she arrives at his or her destination or runs out of gas. 

T’ai chi teaches me to be calm, but as I write today’s blog entry, I am trying very hard not to get my blood boiling.  Jon Katz.

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