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AG’s Office argues police search case at U.S. Supreme Court

The Arizona Attorney General’s Office has urged the U.S. Supreme Court to overturn a Court of Appeals decision limiting police power to search passengers in cars during traffic stops.
Arizona is protesting a 2007 split decision by a Tucson appellate panel that found police did not have sufficient reason to search Lemon Montrea Johnson after he agreed to get out of a vehicle during a traffic stop for an unrelated matter in 2002.
The case was heard on Dec. 9, but it is not known when the Supreme Court will rule on the matter.
Johnson was a passenger in a car found by officers to have a mandatory insurance suspension and reportedly got out of the vehicle to discuss gang activity at the request of an Oro Valley police officer involved with a state gang task force.
According to court documents, Johnson, dressed entirely in gang colors worn by the Crips criminal street gang, was an occupant in the car pulled over near the Sugar Hill neighborhood of Tucson, an area known as a hotbed of gang activity.
Officers at the scene were reportedly not involved in a gang investigation, but questioning of Johnson revealed he was from Eloy and had served time in prison for burglary.
The arresting officer noted Eloy was home to the Trekkle Park Crips, and that Johnson was carrying a police scanner in his pocket before the officer asked him to exit the car, according to court documents.
A subsequent search revealed a handgun and marijuana. He was later found guilty of possession of a weapon by a prohibited possessor and possession of marijuana.
Kent Cattani, a section chief for the Attorney General’s Capital Litigation and Criminal Appeals Division, said the appellate court decision was appealed to help secure the rights of officers to give passengers “pat down” searches if they perceive a threat to their safety.
Officers already are entitled to pat down drivers of automobiles, and the authority should logically be extended to apply to passengers if officers have a basis for believing passengers may be armed and dangerous, Cattani said.
Cattani said police officers likely will continue to search passengers anyway if they feel there is a threat.
“It’s for officer safety, and I think the fact of the matter is that it is unreasonable for an officer to not conduct a pat-down search when they have reason to believe the person presents a danger to them,” Cattani said. “As a practical matter, I think they’ll continue to conduct these types of searches and I think the court will agree that it is reasonable to do that.”
In writing the Court of Appeals 2-to-1 majority opinion, Judge J. William Brammer noted Johnson’s interaction with police was cooperative, “wholly unrelated to the purpose of the traffic stop” and that no one in the vehicle was suspected of criminal activity during the stop.
Meir Feder, an attorney with the National Association of Criminal Defense Lawyers, said a broad ruling favoring the Arizona Attorney General’s Office would result in granting police the power to simply strike up conversations with people and then search them.
“The government is arguing for a very broad rule” that could grant “unlimited discretion” to police to “search anyone they don’t like the looks of,” said Feder, who filed an amicus brief on behalf of Johnson.
“A lot of people wear red or blue,” he said.

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