This week, the Supreme Court handed down their decision in Arizona v. Johnson [pdf]. This case expands on the powers of police to detain and search citizens given only the vague qualifier of “reasonable suspicion.”
Granted, the courts have upheld the idea that our rights to privacy are significantly reduced when in an automobile, but this case expands the rights of arbitrary search and seizure of uninvolved passengers somewhat.
At this point, an officer can order me out of my car and search me on nothing more than a hunch.
According to the original suit:
[Officer] Trevizo noticed that, as the police approached, Johnson looked back and kept his eyes on the officers. When she drew near, she observed that Johnson was wearing clothing, including a blue bandana, that she considered consistent with Crips membership. She also noticed a scanner in Johnson’s jacket pocket, which “struck [her] as highly unusual and cause [for] concern,” because “most people” would not carry around a scanner that way “unless they’re going to be involved in some kind of criminal activity or [are] going to try to evade the police by listening to the scanner.” Opinion, p. 3
So, Johnson’s mistakes were:
- Daring to make eye contact with an officer,
- Wearing the wrong color of clothing, and
- Owning a police scanner.
Sorry, but that doesn’t wash. I have an Australian friend who tells me they’ll stop you if you don’t make eye contact when they pass. In any case, if I’m the passenger in a car that’s been pulled over, I’ll probably take a gander at the officers as well. That doesn’t imply criminal intent.
As far as the blue bandana…well, Johnson may have known that gang members wore that sort of thing, but that’s not enough. Stupid as it may be, there’s a certain “gang groupie” allure among the younger generation. If I were to suspect every under-30-year-old with baggy pants I saw, I’d be a pretty paranoid person. Dumb fashion choices don’t translate into “reasonable suspicion.”
And yes, the possession of a police scanner is certainly odd, but not illegal. Since it can’t be used as a weapon, I don’t see it representing a threat to the officer. Again, it’s a little weird to be wandering about in public with such things, but an argument could be made that devices for monitoring government surveillance are not only harmless but prudent. When we start demonizing these things, we start to slip towards Airstrip One territory.
The main question at hand was officer safety, and it’s a very real concern. The courts have held since the 1920’s that officers can take certain shortcuts with the 4th Amendment at the roadside in the name of expediency, but there need to be strictly defined limits. This steps over that line.
Ultimately, the vehicle was stopped because a check on the tags had confirmed that the car was uninsured. Mr. Johnson was not the driver, nor did any action on his part result in the stop itself. There was no valid suspicion of Johnson at the time of the stop.
This would be a different matter if the officer had seen the butt of a gun or a suspicious bag of green leaves, but she did not. She pulled him out so she could go fishing for probable cause. This is an incredibly important distinction.
“Sure, but the guy had pot and a gun,” goes the counterargument. I’ll not claim that Mr. Johnson was an upstanding pillar of the community. The point is that, if this can happen to one person, it can happen to anyone.
So, if I get stuck at one of those “safety checkpoints” and I’m wearing an NRA t-shirt, they can haul me out of my car and search me. They can do it to you if they think you’re looking at them funny. Perhaps they’ll mistake your cell phone for a police scanner.
Argument #2 goes, “well, I don’t have anything to hide.” That’s not the point, either. Every infringement we accept on our rights leads to even more. It’s a subtle and incremental process, and from what history has shown us, it cannot be reversed.
We still live in a society under which the government doesn’t have the authority to monitor our reading habits or restrict our movements. A few more small steps like this, and we might just see an end to that within our lifetimes.