State v. Johnson
In State v. Johnson, 217 Ariz. 58, P 27, 170 P.3d 667, 673 (App. 2007) the Court determined a police officer's pat-down search of appellee Lemon Johnson violated the Fourth Amendment.
The Court reasoned the search was improper because the initially lawful seizure of passenger Johnson "incident to a traffic stop of the driver had evolved into a separate, consensual encounter."
The Court so reasoned because Johnson would have felt free to remain in the vehicle rather than get out to continue his conversation with the officer, and her questioning of him was unrelated to the reason for the traffic stop. Id.
In State v. Johnson, three officers pulled over a vehicle after checking the license plate and finding that the vehicle had a mandatory insurance suspension. Id. at 59, PP 2-3, 170 P.3d at 668.
The vehicle contained multiple occupants, one of whom, Johnson, was dressed entirely in blue with a blue bandanna, which Officer Trevizo recognized as one indicator of gang affiliation. Id. at 60, P 5, 170 P.3d at 669.
Hoping to gather gang intelligence, Officer Trevizo started a conversation with Johnson, whom she noticed was carrying a scanner in his jacket. Id. at PP 5-8.
Once Johnson left the vehicle, Officer Trevizo patted him down for officer safety. Id. at P 9.
Based on the evidence obtained from the patdown, Johnson was charged with possession of a weapon by a prohibited possessor and possession of marijuana. Id. at P 10.
Johnson argued that the frisk was unconstitutional because his encounter with the officer was consensual and unrelated to the traffic stop. Id. at 61, P 12, 170 P.3d at 670.
The panel in Johnson stated that "an officer may not, however, conduct a pat-down search during a consensual encounter if the officer lacks reasonable suspicion that criminal activity is occurring, even if the officer has reason to believe a suspect may be armed and dangerous." Id.
The court thus held that "when an officer initiates an investigative encounter with a passenger that was consensual and wholly unconnected to the original purposes of the routine traffic stop of the driver, that officer may not conduct a Terry frisk of the passenger without reasonable cause to believe 'criminal activity may be afoot.'" Id. at 65, P 29, 170 P.3d at 674.
Express consent to the patdown itself, as contrasted with consent to the encounter generally, was never raised and was not at issue.