Terry searches of occupants of vehicles

Officers stop a car with several gang members in it. An officer wants to talk to one of the occupants, Johnson, who is sitting in the back seat. The officer later testified that she wanted to get more information about the gang – and that the conversation was just a consensual encounter.

After Johnson got out of the car and prior to talking with the Johnson, the officer did a cursory pat down and discovered a gun in Johnson's waistband.

The Arizona Court of Appeals ruled that it is unconstitutional to conduct a Terry search without first having a Terry stop.

The holding was the slippery slope result of Ilono case in which officers entered a Ramada where there were five suspected gang members. The officers frisked the occupants and discovered crime-related evidence on Ilono. The court in that case suppressed the evidence as the officers could not explain any “reasonable suspicion” to believe the gang members were about to commit a crime, were committing a crime, or had committed a crime.

The impact for officers is that even though they may have good reasons (reasonable suspicion) to conduct a Terry search, they are prohibited from doing so, because they have no reasonable suspicion to conduct the stop and detention in the first place.

These are dangerous decisions for Arizona officers, both as practical and legal matters.

As a practical matter, obviously, these decisions could cost officers their lives. As a legal matter, officers who are unaware of the Johnson case could easily fall into a simple defense attorney trick / trap.

Here is the trick / trap. If an officer stops a suspect during a traffic or Terry stop, the officer will be asked during cross-examination, “Officer, was your (intended) questioning of my client simply a consensual encounter?” If the officer answers, “Yes” then any Terry search was prohibited, and the evidence will be suppressed.

My advice then is to make all questioning of Terry suspects or occupants of vehicles detention questioning. In those cases the evidence gathered as a result of a Terry search will be admissible.

Please note - I am not talking about talking to a driver AFTER the traffic stop and trying to get consent to search. In that instance, you should (probably must) tell the suspect that he is free to leave, but that you would like to talk to him for a minute.