The nature of police work routinely brings officers into daily contact with many people. When an officer has occasion to suspect an individual of a crime or to arrest an individual for a crime in progress, the person may not be alone—often the officer encounters another individual with the suspect. Whether the “other person” is simply in the wrong place at the wrong time, has a poor choice of acquaintances, or is intimately involved in the criminal activity is for the officer to discern. The officer must balance his focus on the primary suspect with a healthy concern for the “other person.” This is a scenario which repeats itself every day in the work of officers across the country.
A street encounter, a car stop or the execution of a search warrant will likely yield another person accompanying or in the presence of law enforcement’s primary target. The relationship between the officer and the “other person” will vary according to the circumstances, the information known to the officer at the time and the ability of the officer to articulate his/her reasons for their actions. It is important to remember, articulable facts leading to reasonable inferences are the building blocks of probable cause. The U.S. Supreme Court has addressed each of the above scenarios in various cases with divergent fact patterns and will consider it further this October term in relation to vehicle stops. A review of some of the cases and the Court’s treatment of the “other person” in these different situations is merited.
The Street Encounter
Academy training 101: Terry stops are based on reasonable suspicion that a crime has taken place or is in the process of taking place. The U.S. Supreme Court decision in Terry v. Ohio, 392 U.S. 1 (1968), decided at a time when American law enforcement was experiencing sweeping Supreme Court announcements considered pro-defendant, gave police officers a powerful tool in their ability to investigate persons in public. The decision even provided a protective aspect to the street encounter by asserting an officer’s right to “frisk,” a limited pat-down search of the outer clothing, based on a reasonable suspicion the subject may be armed.
The Terry stop is a two-fold test, first a reasonable suspicion to stop and second a reasonable suspicion the person maybe armed. The first part of the test is based on a reasonable suspicion that a crime may have occurred, or, as in the case of Cleveland Detective McFadden, the catalyst behind the Terry decision, that a crime is in the process of occurring. The second aspect of the test does necessarily always follow the first. A separate reasonable suspicion that the person stopped may have a weapon is required for the “frisk.”
Over the years I have observed many young officers make the jump from stop to frisk without an independent basis for the frisk, relying on the stop as justification for everything else that follows. This is not the case, and as I always explain when training officers or teaching my students, the courts want to see you climb the ladder rung by rung, not race up it, skipping steps along the way. The focus in an initial Terry encounter, which differs from a voluntary request for information in the fact that a person is seized, is on the level of justification.
“Reasonable suspicion” is not probable cause, the constitutional standard for search and arrest of a person. It is a crafted standard provided by the Supreme Court in recognition of a police officer’s difficult job, the dangers inherent in personal encounters, and in promoting the officer’s ability to investigate. An ability which the court has supported in the past based on suspicions developed from an officer’s training and experience.
Now, what of the situation where you stop one individual based on reasonable suspicion but there is a second person present? Is there reasonable suspicion to stop that person as well, a “guilt by association” placed upon the other person? The short answer is no. Separate individualized suspicion must be present. Inquiry can always commence but if the “other person” wants no part of you or their friend for that matter and continues to walk on the inquiry ends there. That is, of course, unless the officer can articulate a reason for the stop of the “other person.” I am reminded of a situation I had many years ago as a young police officer. While on a midnight shift my partner and I pulled over a vehicle for traffic violations and suspected DWI.
The driver, who was obviously intoxicated, had a passenger who proceeded to exit the vehicle while his friend was being field tested. The passenger, also very drunk, started to walk away along the dark road after telling his friend and us that he was continuing on his way home. I asked him to stop and talk to me, he told me he was going home and had nothing to say to me as he staggered into the roadway. As I approached him he became agitated and proceeded to tell me he had done nothing wrong, which was true, except that he was highly intoxicated and walking along an unlit road on a cold winter night. Not to mention that he was walking in the roadway, a violation of the state vehicle and traffic law. You can guess that by the end of this story he was arrested for disorderly conduct and attempted assault on a police officer. A question later posed to me by the prosecutor was why I stopped the passenger in the first place. The passenger’s defense attorney had raised the issue with the prosecutor at a subsequent arraignment of his client. When I explained the situation, my concerns for the passenger’s safety, his level of intoxication, and his traffic law violation of walking in the roadway the prosecutor immediately understood. A month later he closed the case with a plea from the defendant, no doubt after explaining my reason for the stop to the defense attorney. It is articulable facts such as these which support a stop and everything else emanating from the stop.
The one caveat in discussing cases such as Terry is to remember that the original level of inquiry, reasonable suspicion, is less than probable cause but in no way replaces probable cause as the standard to search or take an individual into custody. It is also worthwhile to distinguish the fact that while a police encounter with a suspect on a Terry stop is a temporary seizure, the encounter with the “other person” can be completely voluntary, especially if they are not included in the original stop. In situations where the “other person” is an equal party to the stop then the same rules for the encounter apply.
The Vehicle Stop
Most vehicle stops involve not only the motorist but a passenger or two. The U.S. Supreme has had a few occasions to consider the relationship of the passenger to the overall stop and how the passenger is to be treated as a result of the stop. At the outset it should be noted that the Supreme Court has treated vehicle stops differently than other temporary detentions, such as those on the street. This owes to the nature of the stop itself as well as the presence of the automobile.
In Carroll v. U.S., 267 U.S. 132 (1925), the Supreme Court recognized the automobile exception to the search warrant requirement upon a showing of probable cause to search. The Court’s rationale was based on the automobile being a “movable vessel” in which “goods subject to seizure…readily could be put out of reach of a search warrant.” Carroll remains good case law with a reach that has been expanded over the years. Aside from the unique mobile nature of the motor vehicle which guided the Court’s Carroll decision and the reduced expectation of privacy which the Court also attributed to a motor vehicle (Cardwell v. Lewis, 417 U.S. 583 (1974)), the Supreme Court subsequently took notice of the inherent dangers to police officers when making vehicle stops (See Maryland v. Wilson, 519 U.S. 408 (1997), “…traffic stops may be dangerous encounters.”)
Past cases have focused on the extent to which a driver can be compelled by police on a stop to exit the vehicle (Pennsylvania v. Mims, 434 U.S. 106 (1977)) or provide information at a roadside sobriety test (Pennsylvania v. Muniz, 496 U.S. 582 (1990)) as well as the control an officer can exert over a passenger in the vehicle by asking the passenger to exit the vehicle (Maryland v. Wilson). The concept of Terry stops and the ability of an officer to “frisk” during a vehicle stop have also been approved by the Court. Michigan v. Long, 463 U.S. 1032 (1983) found that the presence of articulable facts leading officers to suspect a weapon may be located in a vehicle will permit a limited “frisk” of the passenger compartment of the vehicle. This “frisk” is limited to the areas of the vehicle where a weapon may be secreted.
When the police have probable cause to search a vehicle resulting from interaction with the operator all items within the vehicle are subject to search, including a passenger’s bag. Wyoming v. Houghton, 526 U.S. 295 (1999) gave no solace to a female passenger who left her closed purse in a vehicle operated by a male friend. The vehicle was searched and when the female passenger’s purse was opened drug paraphernalia was found within. Unequivocally the Court indicated a passenger has a reduced expectation of privacy in “the property they transport in cars”, finding passengers and vehicle operators to often be involved in a “common enterprise.”
An interesting question raised in Wilson but not addressed by the Court is, what if the uninvolved passenger in a stopped vehicle seeks to leave the vehicle and the scene during the stop? Conventional wisdom provides that without a separate reason to hold the passenger he/she must be allowed to leave. There are exceptions which of course would apply as in the situation I describe above with the drunken passenger. Likewise, there are articulable officer safety considerations which could be made to justify temporary detention of a passenger seeking to leave the scene. As with all Fourth Amendment questions, the determination of the reasonableness of the seizure depends on the relevant facts.
Last year the Supreme Court decision in Brendlin v. California, 127 S.Ct. 2400 (2007) concluded that a passenger in a stopped motor vehicle was “seized” for Fourth Amendment purposes. The Court’s decision gave standing to a parolee to challenge the stop of the vehicle he was riding in and his subsequent arrest as a parole violator. Justice Souter’s majority decision held that the passenger was able to challenge the legality of the vehicle stop due to the fact that he was “seized” at the moment of the stop, not at the time of his subsequent arrest. To hold otherwise, according to Justice Souter, would “invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal.” The vehicle stop in Brendlin was based on a patrol officer’s observation of an expired registration sticker on a parked vehicle. A check of the status revealed the vehicle registration renewal to be filed and processed. Later in the day the same officer noticed the vehicle on the road but this time observed there was a temporary operating permit displayed on the vehicle. Despite prior information indicating the vehicle to be properly registered, the officer decided to see if the temporary operating permit matched the vehicle it was on.
Upon approaching the vehicle the officer noticed the passenger to be “one of the Brendlin brothers” and recalled one of the brothers may have skipped his parole appointment. Thus began the journey of Brendlin to the Supreme Court and the defining moment for vehicle passengers as being equally seized with the operator on a stop. The status of a vehicle passenger on a stop as an “other person” continues to evolve with this October term’s hearing of oral argument in Johnson v. Arizona, U.S. Supreme Court docket number 07-1122, (on appeal from The State of Arizona v. Johnson, 217 Ariz. 58; 170 P.3d 667 (09/10/07)).
In this case the Supreme Court is faced with whether a police officer can conduct a pat-down search of a passenger when the officer has no reason to believe a crime has been or is being committed but has articulable grounds to believe the passenger may be armed. The Arizona Supreme Court decision being reviewed engaged in a feat of legal hair-splitting in finding the police pat-down frisk of Lemon Montrea Johnson, a suspected gang member, to be unwarranted thereby suppressing a handgun found on him. Johnson, a rear seat passenger, was questioned voluntarily by a female officer working in an anti-gang unit. While her two partners dealt with the operator and other passenger in the vehicle, Officer Trevizo began a conversation with Johnson.
Prior to the stop, which was for a suspended registration, Officer Trevizo noticed the back seat passenger to be looking back at the patrol vehicle and then leaning forward in apparent conversation with the operator. Once the vehicle was stopped Officer Trevizo noticed the rear passenger to be in clothing descriptive of that worn by gang members, particularly those belonging to the Crips. The stop was made in an area known for gang activity and the passenger volunteered that he was from an area the officer recognized as having a strong Crip affiliation. Johnson was also in possession of a police scanner which she took as indicative of involvement in criminal activity. Officer Trevizo, a trained gang investigator, testified at trial as to the “seven indicia of gang affiliation” and found Johnson to exhibit several indicators. As permitted by Maryland v. Wilson the officer asked Johnson to exit the vehicle. Once he exited she asked if she could perform a voluntary pat-down frisk for weapons which she did and thereby uncovered the handgun and some marihuana. Throughout the stop Johnson was cooperative with the officer. Despite the fact he was seized upon the initial stop of the vehicle Johnson argued his situation eventually evolved into a consensual encounter. Because the encounter evolved as it did the Arizona Supreme Court found that Officer Trevizo, despite articulable reasons for suspecting he possessed a gun, conducted an unauthorized pat-down frisk during a consensual encounter, outside the bounds of a normal Terry stop situation.
This is a case to be closely watched to see how the Supreme Court responds to the reasoning of the Arizona court. When reading the decision and the facts surrounding the stop there is no doubt the officer acted intelligently, professionally and was able to support with articulable facts every action she took and her reasons. We will have to wait and see if that is enough anymore.
The Search Warrant
Search warrants are a whole different category than street encounters and car stops, yet the presence of an unintended individual being at the search location is not uncommon. This begs the question, what is the legal status of the “other person” present at a residence or a business being searched as the result of a judicially sanctioned warrant?
The U.S. Supreme Court in Michigan v. Summers, 452 U.S. 692 (1981) sanctioned the detention of persons at the premises during the length of the search when there was no independent ground to arrest them. In approving such police conduct the Court set out several reasons for doing so: preventing harm to the officers, legitimate law enforcement interests in preventing flight of a potential suspect and the systematic completion of the search which may be facilitated if the occupants remain. The Summers Court found the detention of those present in a search location reasonable under the circumstances since “detention represents only an incremental intrusion on personal liberty when the search of a home has been authorized by a valid warrant.”
Similarly, the Court has approved the tactic of law enforcement “freezing” a location to be searched and keeping anyone from entering while a search warrant is obtained. In Illinois v. McArthur, 531 U.S. 326 (2001) the Court held “[T]emporarily keeping a person from entering his home, a consequence whenever police stop a person on the street, is considerably less intrusive than police entry into the home itself to make a warrantless arrest or conduct a search.” This reasoning equally extends to other persons seeking entrance into the location.
More recently in two civil rights cases commenced under 42 USC §1983 the Court has further supported the detention of individuals during search warrants. The police were permitted to handcuff a woman found sleeping on a couch in the residence being searched and keep her so restrained for the duration of the search which lasted two to three hours. See Muehler v. Mena, 544 U.S. 93 (2005).
Despite multiple Fourth Amendment claims by Iris Mena, the Court found the officers’ actions to be reasonable in light of the information they had relative to the criminal activity being investigated. Several handguns were found in the residence being searched a location connected to local gang activity. Once again, by signaling its regard for officer safety the Court found the detention, which it indicated was more intrusive than others it had sanctioned, was nonetheless warranted due to the overwhelming government interest involved. Two years later in Los Angeles County v. Rettele, 127 S.Ct. 1989 (2007) the Court refused to find any wrongdoing on the part of police officers who detained residents of a home at gunpoint even though the residents were of a different race than the suspects in the investigation. In Rettele a white couple “who had been sleeping unclothed” were ordered out of bed when officers entered their home while executing a search warrant. Both the man and woman were made to exit the bed and stand in the room without any clothes until officers secured the residence. In a pre-raid briefing the officers were advised the suspects were African-American and a .9mm handgun was registered to one of the suspects.
The only glitch in the raid planning was that the suspects had moved from the residence three months earlier.
An allegation in the couple’s civil rights complaint was that officers did not allow them to retrieve night clothing which was under the bed covers. The Court cited the inherent dangerous and unknown situations confronting officers in the execution of search warrants and the potential for there being a weapon easily accessible on or near the bed. Additionally, the Court said the mere fact that the white couple were confronted early in the home’s entry did not “eliminate the possibility that the suspects lived there as well.”
By finding the officers’ conduct to be objectively reasonable, the Court held there was no Fourth Amendment violation. Since both Mena and Rettele involved search warrants, and each relies on the Court’s prior Summers opinion, it is evident the Supreme Court is willing to grant broader leeway for officers when acting pursuant to a judicially approved warrant. The length of detention found reasonable in Mena would not be justified during a street encounter or vehicle stop. Of course the above is not meant to indicate the police have unfettered access to secondary individuals, or bystanders, found at the scene of a search warrant. In Ybarra v. Illinois, 444 U.S. 85 (1979) officers executed a search warrant at a bar. The Supreme Court disallowed general pat down searches of bar patrons stating that “mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person.”
The above cases present a brief overview of the U.S. Supreme Court’s statements as to the “other person” frequently present during police investigative activities. Naturally, the Court sets the minimum constitutional standard of conduct to be followed in criminal procedure matters. State courts are free to provide broader protections under their own state constitutions and they often do. There has been a trend over the years for state courts to become more proactive in the area of constitutional criminal procedure. A review of your own state court’s decisions in these areas will provide further clarification as to what to do when you encounter that “other person.”