Arizona v. Johnson is a Fourth Amendment case currently under consideration by the US Supreme Court. At a traffic stop, a policeman patted down a passenger without any probably cause that the man had committed any crime. The Assistant to the US Solicitor General, Toby Heytens, argued before the court that police can legitimately frisk someone on the street on the mere suspicion that the person is armed and dangerous. Justice Stevens pointed out this is a radical departure from past Justice Department reasoning.
The facts are simple. A police officer stopped a car for an insurance infraction, which is a legitimate stop under Arizona law; Johnson was a passenger. The officer wanted to question Johnson about gang activity, so she asked him to get out of the car and then patted him down. Specifically at issue is whether or not that search of Johnson, which turned up a gun and marijuana, was reasonable under the Fourth Amendment. However, legal observers say the Supreme Court’s ruling in Arizona v. Johnson will have implications about many ‘war on terror’ prosecutions.
It was the contention of Solicitor Heytens and his team that a search is permissible if — in the clearly contemptuous words of Justice Souter during oral arguments — “the individual gives [the officer] mean looks and he has a bulge of something on his hip.” All past legal interpretation disagrees with Heytens, and so does the Libertarian Party of Georgia.
Libertarians believe in the presumption of freedom. Unless the US Constitution explicitly permits government to conduct a search, it is our belief that no search is permissible. In relevant part, the Fourth Amendment says “The right of the people to be secure in their persons … against unreasonable searches and seizures SHALL NOT BE VIOLATED, and NO warrants shall issue but upon probable cause … particularly describing … the persons or things to be seized” (our emphasis added). The police officer was concerned for her own safety because Johnson “had a bulge of something on his hip and gave her mean looks” — but that concern is not in the Fourth Amendment. She had no probable cause to believe Johnson had committed a crime, and therefore no search was proper.
Heytens is a Bush appointee who will be unemployed in a few weeks. President Obama’s selection for Solicitor General, Elena Kagan, is awaiting confirmation hearings.
During the election campaign, candidate Obama promised to break with all sorts of Bush policies. Libertarians fervently pray that Fourth Amendment interpretation is one of them. But based on the new President’s announcements about “temporarily” keeping the Bush policies on gays in the military, keeping American troops in Iraq and Afghanistan, and keeping the Guantanamo Bay prison open for a year, we will watch nervously for developments.
