Arizona v. Johnson - Oral Argument

ORAL ARGUMENT OF JOSEPH L. PARKHURST ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We will hear argument first this morning in Case 07-1122, Arizona v. Johnson.

Mr. Parkhurst.

Mr. Parkhurst: Mr. Chief Justice, and may it please the Court:

Petitioner asks that this Court apply the principles established in Pennsylvania v. Mimms to uphold the pat-down search of a vehicle passenger seized during a lawful traffic stop. Mimms established that a traffic stop satisfies Terry's first prong as to suspicion of criminal activity, and it also established that a pat down of a driver is justified if the officer has a reasonable suspicion that the driver is armed and dangerous.

Fourth Amendment searches must be reasonable, and the pat down in this case was reasonable. And it is common -- it's a commonsense principle that the principles in Mimms also apply to passengers in the context of a traffic stop.

Justice Kennedy: I didn't hear your first -- in your opening. Did you say that Mimms established that it's likely that he's armed and dangerous? I missed that.

Mr. Parkhurst: No, no. That's not what I'm saying --

Justice Kennedy: I'm sure it wasn't, but I missed what you said on that point.

Mr. Parkhurst: What I said is that Mimms establishes that a pat down is justified in the context of a traffic stop if the officer believes that the driver is armed and dangerous.

Justice Kennedy: Thank you.

Mr. Parkhurst: Correct.

Chief Justice Roberts: Do you agree that there's a point in an interaction that begins with a traffic stop, begins with a seizure, at which the nature of that interaction is changed so that it's no longer -- so that it becomes a consensual interaction?

Mr. Parkhurst: That -- yes, Chief Justice.

That can happen in a traffic stop. There's no evidence in this particular case that there was any kind of evolution to a consensual encounter.

Chief Justice Roberts: Maybe I should rephrase the question. Do you agree that it would be unconstitutional for an officer to conduct a pat down after an initial seizure while that same interaction still continues?

Mr. Parkhurst: No, I disagree with that, Your Honor. An officer can conduct a pat down any time it is reasonable in light of factors that the officer may notice about the individual. If the individual presents an immediate danger to the officer or to the public, a pat down may be reasonable under the broad Fourth Amendment principles, even if this happens to be a consensual encounter or a --

Justice Kennedy: So in your view, or I suppose the government's view -- well, I'll let the government argue for itself. In your view, if the officer is just looking for the man in the gray overcoat and he stops someone on the street and says, have you seen a man with a gray overcoat, and the person says, well, I saw something like that, can he just suddenly spin him around and pat, and pat that person?

Mr. Parkhurst: If the officer possesses articulable facts that this person is immediately dangerous to that officer.

Justice Ginsburg: Then you're doing away with the first Terry factor altogether. Do you think all you need is reasonable suspicion that the person is armed and dangerous? What happened to the reasonable suspicion that a crime has just been committed or is in the course of being committed?

Mr. Parkhurst: Well, the first prong of the Terry analysis, justice Ginsburg, is whether the officer's action is justified at its inception, and one way that it may be justified is if the officer possesses suspicion that criminal activity is afoot. But we also know from other case law that another way the officer's actions may be justified is during a traffic stop where there's no criminal activity.

Justice Scalia: Of course, for a Terry -- for a Terry pat down you don't need, do you, articulable suspicion that the person is armed and dangerous? So long as you have a suspicion of unlawful activity, you can stop the individual and pat down. Do you have to have, in addition to stopping the individual, an articulable suspicion that he is armed and dangerous?

Mr. Parkhurst: I believe that's what Terry says, that you --

Justice Scalia: Both armed and dangerous?

Mr. Parkhurst: Yes.

Justice Souter: Well, in your view if an officer was going down the street and he saw an individual as to whom he had no suspicion a crime was being committed, had been or was about to be, but he said that guy looks like trouble for anybody who has anything to do with him, so he goes up to him and he says, I want to talk to you, and because he has reasonable suspicion that the individual looks like trouble, he pats him down. Is that a good pat down?

Mr. Parkhurst: Well, he would also have to possess articulable reasons that a prudently -- a reasonably prudent person would be satisfied with that this person is an immediate danger to him.

Justice Souter: The individual gives him -- gives him mean looks and he has a bulge of something on his hip.

Mr. Parkhurst: Well, that could very well support a pat down.

Justice Ginsburg: Then you are doing away with the first Terry factor. There are two factors recognized: One, reasonable, articulable suspicion that a crime is afoot; and two, this person is reasonably suspected of being armed and dangerous. Your answer to Justice Souter suggests that you don't need the first one, you don't need to have any suspicion that a crime is afoot; it's enough that you reasonably suspect that the person is armed and dangerous.

Mr. Parkhurst: What I'm suggesting, Justice Ginsburg, is that the first prong of Terry is much broader than just suspicion of criminal activity.

Justice Souter: No, but in my hypothesis there was nothing that would satisfy the first prong of Terry. There is no lawful traffic stop, there is no indication that the individual has committed a crime or is about to or is doing so. So, so -- so Terry one is blank in my hypothesis, and you nonetheless conclude that as a result of dirty looks and the bulge of a probable gun on the hip, the officer can in effect initiate the action with the individual and pat him down.

Mr. Parkhurst: What I'm suggesting, Justice Souter, is that in the officer's community caretaking function the officer is authorized to approach an individual that he thinks is trouble, and in the course of asking neutral questions, if the officer believes that this person is immediately dangerous to the officer, then a pat-down would be appropriate in that instance. I'm not --

Justice Alito: Doesn't the officer need -- justification for a stop, for a Fourth Amendment seizure, whether because of a traffic violation or because of suspicion of criminal activity; and then in addition to that, reasonably believe that the person is dangerous? I thought that would be -- I thought that was your argument.

Mr. Parkhurst: Well --

Justice Alito: In the context of a traffic stop, you don't need, as to the passenger and the driver, you don't need suspicion of criminal activity.

The person has been seized as a result of the stop, and then if you add on to that the reasonable suspicion of danger to the officer, that would be sufficient.

Mr. Parkhurst: What I'm saying, Justice Alito, is that in this particular case we certainly have a legitimate stop, and under Brendlin we also know that the passenger is seized during a reasonably routine traffic stop until the passenger is released. So what we have here is a presumption that the officer has the authority to control the passenger during the routine traffic stop, and we also have an instance in a traffic stop where an officer cannot avoid the individual, be it a driver or passenger. So in our case it seems like to the easy case where Mr. Johnson and Officer Trevizo were placed in close proximity, she detected things about him that she believed made him a threat to her, an immediate threat, and therefore all we're asking in our case is that she be -- she have the entitlement under the Fourth Amendment to pat him down.

Justice Ginsburg: But Officer Trevizo herself testified that she thought the seizure part was over. She asked him would he get out of the car, and then she said -- I think she used the word "consensual" herself, that it was a consensual encounter.

Mr. Parkhurst: Well --

Justice Ginsburg: That after the initial seizure was over, and then she wanted to question him about gang, his gang affiliations -- and didn't she testify? I seem to remember she did, and she said it was voluntary.

Mr. Parkhurst: She said that he could have refused to get out of the car. There's two things about that, Justice Ginsburg. One is we don't need to credit necessarily the officer's own subjective beliefs as to the -- whether the subject was free to leave or not.

The second thing is, we know from Brendlin that unless the officer has given or the individual has asked for permission to leave, there's -- there is really no release. So Officer Trevizo was certainly entitled to enter a consensual conversation with Mr. Johnson during the lawful seizure, but there was no indication that he was free to leave. Moreover, even if he reasonably felt free to leave, it's irrelevant to whether he reasonably posed a danger to the officer.

Justice Kennedy: I guess what you're saying is that if there is a stop of the passenger and an interrogation of the passenger, the passenger can't say, incidentally, this is consensual, and thereby avoid a pat down?

Mr. Parkhurst: Correct, correct, and whether or not --

Justice Kennedy: And it seems to me there is some indication that that's what happened here if you credit the police officer's testimony.

Mr. Parkhurst: Right. Certainly --

Justice Kennedy: In other words, you can have consent within the context of a stop that has not yet ceased.

Mr. Parkhurst: Correct. It would be analogous to, say, a, an inmate in a prison offering to give information to one of the prison guards. There's no question that the inmate is still in custody, even though the conversation itself is consensual.

Justice Stevens: May I ask if your view of the law that, if the officer is pretty sure that the person he's having a consensual encounter with has a gun -- he could see the bulge or something -- is that sufficient or does he have to have some proof that the person is about to use the gun?

Mr. Parkhurst: It would be -- in the context of a traffic stop because of all the unknowns that an officer must face, a bulge is usually sufficient to justify a pat down.

Justice Stevens: What about just meeting on -- on the street, the officer meets the man on the street and asks him where he's going or something like that, and he sees a -- a bulge in the pocket that convinces the officer he has a gun, but that's all.

That's the only evidence of a threat to the officer. Is that enough?

Mr. Parkhurst: In that instance, it may be the prudent course to at least ask whether the person is armed. On a -- on a random --

Justice Stevens: What if he says "yes"?

Mr. Parkhurst: Well, then the officer could ask something along the lines of whether he has a permit to carry a gun. And whether or not the person has a permit to carry the gun or is lawfully in possession of the gun, it's a matter of basically the totality of the circumstances whether --

Justice Scalia: Well, but I -- I thought you said that there has to be an articulable suspicion that he is armed and dangerous.

Mr. Parkhurst: Right.

Justice Scalia: A bulge would not be enough to conduct a pat down after a Terry stop, therefore.

Mr. Parkhurst: That's exactly -- exactly what I'm --

Justice Scalia: Well, then why should it be enough to -- to justify a pat down here?

Mr. Parkhurst: Well, because -- well, there was no bulge in this case. However, it's a matter of all the factors. It's a weighing of all the factors.

Justice Scalia: No, I understand. I weigh all the factors, and there's nothing but a bulge.

Mr. Parkhurst: Okay. Well, it's a matter of whether you believe that the person is dangerous.

Justice Scalia: Okay. So the bulge alone -- Well, whether I believe? There has to be, you know, a reasonable basis for --

Mr. Parkhurst: Right.

Justice Scalia: -- an articulable basis for the belief, right?

Mr. Parkhurst: Yes.

Justice Scalia: So I don't see why a bulge alone would -- would satisfy.

Mr. Parkhurst: Well, in Mimms it was just a bulge in the -- the driver's jacket that justified the pat down. However, a person may possess a gun lawfully, and that person may or may not be a danger. For instance, an off-duty police officer, they often carry their sidearms with them.

They are not going to -- even if another officer knows that they're armed, they don't perceive them as a danger, and therefore no pat down is going to ensue.

Justice Scalia: We have a whole separate line of cases apart from the Terry stop cases which allow officers to protect themselves by conducting a search of the surrounding area when they arrest somebody. And that justifies a pat down of the person that they arrest also, doesn't it?

Mr. Parkhurst: Yes.

Justice Scalia: Whether or not they think that -- that he's about to -- to draw the gun and shoot them.

Mr. Parkhurst: Correct. It's -- it's a matter --

Justice Scalia: Why wouldn't that line of cases be extendible to this kind of a situation?

Mr. Parkhurst: Well, it's a matter of during a traffic stop, Brendlin even says that officers must be able to exercise unquestioned command of the situation.

Justice Scalia: Why -- why during a traffic stop shouldn't they be able to ensure their own safety by -- by patting down the people who have been stopped, whether or not they have an articulable suspicion that they are about to draw and shoot? But that's not what you're proposing, is it?

Mr. Parkhurst: Well, what I'm proposing is the -- the standard Terry test. That --

Justice Scalia: Yes.

Mr. Parkhurst: -- the suspicion must be that they're armed and dangerous.

Justice Scalia: Why -- why go the Terry route instead of the route that -- that covers search of the area around the person who is arrested?

Mr. Parkhurst: Well, I believe that this -- the facts of this case fall pretty much under Terry. A -- a traffic stop will -- will impose circumstances that you're not going to get in a -- in a normal street encounter, because basically an officer -- we presume that an officer has the authority to control any of the occupants of a car. And "control" means not just ordering them out as in Mimms and Wilson, but also making sure that one of the occupants doesn't get behind you while you're dealing with the traffic investigation.

It's -- it's --

Justice Ginsburg: When -- when did this end? You just said -- you said when the car is stopped everyone is seized, the driver and the passengers as well. The seizure ends at some point. Is that when the driver is ticketed and the police cruise off or --

Mr. Parkhurst: That's the normal situation, and usually that's the analysis that bears on whether the driver has given valid consent to a search of the automobile or something like that. We -- we must bear in mind that a pat-down search is not an evidence search. This is not a full search. It's just a search of the outer clothing for an immediately accessible weapon.

Justice Stevens: General Parkhurst --

Justice Ginsburg: Then how did the -- how did the officer come up with the marijuana as well as the gun?

Mr. Parkhurst: Well, because once he was arrested for the gun, then they did a search incident to arrest.

Justice Stevens: General Parkhurst, I -- I seem to be a little confused about the facts of this case. I had the -- remember the testimony that she thought the -- that the encounter had become consensual, which meant that he was no longer -- in her view, no longer under police custody. But are you also saying she also thought he was about to assault her; and, therefore, she was in danger?

Mr. Parkhurst: She did not --

Justice Stevens: There is a substantial difference between being both in danger and saying, well, the arrest was all over.

Mr. Parkhurst: No, she -- she did. She believed that he posed an immediate danger to her based on the numerous factors that she cited in her testimony.

So she was -- she was afraid. She was afraid from the outset, as a matter of fact, because of the way that he made eye contact with the officers.

However, we don't want our officers to avoid their law-enforcement functions just because they're in contact with a possibly dangerous person.

Justice Scalia: Why -- why had this descended from a -- a seizure to a post-seizure consensual encounter? Why was the seizure over?

Mr. Parkhurst: Well, we're arguing that the seizure was not over.

Justice Scalia: Well, it seems to me you're -- you're acknowledging that she said that it was a purely -- you're not arguing it as based on a purely consensual encounter? I thought that that's what you --

Mr. Parkhurst: No. No, Your Honor. We're suggesting that the seizure had never ended in this case. The Arizona court of appeals --

Justice Scalia: Even though she said so?

Mr. Parkhurst: Correct, because we don't have to necessarily take her word for that.

Justice Scalia: Okay.

Mr. Parkhurst: That's a -- that's a legal

Justice Kennedy: The white light is on. I don't want to -- but your opening argument that you presented indicated that a seizure is not necessary.

You -- you wanted a further rule.

Mr. Parkhurst: I -- well --

Justice Kennedy: If the officer believes that a person is armed and might be dangerous, then they can pat down. That's -- that's the rule that you proposed, I thought.

Mr. Parkhurst: We believe that that is true. That's not the rule that necessarily arises from the facts of this case, because we believe that there is a seizure throughout the entire encounter, and that there is really -- there is no question that, as a seized passenger, Officer Trevizo could pat him down.

And unless the Court has any other questions, I would like to reserve the rest of my time.

ORAL ARGUMENT OF TOBY J. HEYTENS ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Chief Justice Roberts: Thank you, counsel.

Mr. Heytens.

Mr. Heytens: Mr. Chief Justice, and may it please the Court:

The decision in this case should be reversed for one of two independent reasons. First, at the time that Officer Trevizo performed this frisk, the Arizona Court of Appeals erred when it held that the seizure that had been caused by the initial traffic stop was already over. This seizure was still ongoing at the time of the frisk.

Second, regardless of the answer to that question, under this Court's decisions in Mimms and Wilson it is constitutionally reasonable for a police officer to order any occupant out of a vehicle during a lawful traffic stop and to frisk that individual if the officer has a reasonable suspicion that that individual is armed and presently dangerous to the officer. In this case --

Chief Justice Roberts: Do you agree that there is a point at which the encounter initiated by the traffic stop changes in some way that a pat down is no longer justified?

Mr. Heytens: We certainly agree, Mr. Chief Justice, that at some point the encounter is over, and that if it is in fact not over, the --

Chief Justice Roberts: Well, if the encounter is -- by "the encounter is over," do you mean that they separate; they're no longer together? My question is whether or not it's a continuing encounter but transforms somehow in its quality so that the pat down is no longer justified.

Mr. Heytens: We agree that at some point a seizure can morph into a consensual encounter. We don't have any dispute with that. We would say that the fundamental reality of this situation is what the Court recognized in Brendlin, which is that at the time the car pulls over a reasonable person would understand himself to not be free to leave unless and until the police officer says something that makes fairly clear that the seizure is over and he's free to go.

Chief Justice Roberts: I suppose there is an argument, anyway, that even though the initial seizure is over, the consensual encounter continues.

And at some point the officer, as a result of whatever happens during that consensual exchange, becomes concerned for her safety.

Mr. Heytens: Absolutely, Mr. Chief Justice, and that's our second argument, which is at the end of the day we don't think it matters whether he's seized.

Because whether he's seized or not, this is still a roadside encounter with a person who was a passenger in a vehicle that was --

Justice Stevens: Let me ask you, suppose it's a roadside encounter in which the driver is changing a flat tire and the officer stops and wants to talk to him for a while and then he suddenly thinks, well, maybe this guy's armed. Is it okay for him to go ahead and search him?

Mr. Heytens: Well, I guess the first thing I want to say, Justice Stevens, is that it's not okay to think, maybe he might be armed. The officer has to have articulable suspicion.

Justice Stevens: Well, Maybe he has an articulable suspicion.

Mr. Heytens: Okay. Under those circumstances we think absolutely, and we think your hypo --

Justice Stevens: Is that any different from meeting somebody on the -- on the street corner?

Mr. Heytens: It is different in the sense that --

Justice Stevens: The flat -- my flat tire example.

Mr. Heytens: It is different because it's a roadside encounter, and this Court has recognized again and again and again --

Justice Stevens: But those are roadside encounters after a traffic violation.

Mr. Heytens: I -- I agree with you, Justice Stevens, which is why at the end of the day we don't -- we think that the officer, in basically those facts, should be able to perform a frisk on the street as well.

I guess just -- again to say, I don't think the Court needs to reach that issue, because I --

Justice Stevens: You don't rely at all on the fact this is a traffic stop?

Mr. Heytens: We do rely on the fact --

Justice Stevens: On your second point, that is.

Mr. Heytens: We think this case is substantially easier because it's a traffic stop, because --

Justice Stevens: Why is it easier?

Mr. Parkhurst: Because this Court has recognized again and -- let me give you the example of Wilson. Wilson is the case where the Court holds that it is per se reasonable for an officer to order a passenger to get out of the car.

Justice Stevens: Yes, but those are all cases in which there is a violation of law that preceded the activity. I asked you about cases in which there is nothing other than the officer's interest in patting down the guy because he thinks he has a gun.

Mr. Heytens: Justice Stevens, I think Wilson is highly significant in this regard, because the Court went out of its way in Wilson to point out that there's no reason to suspect a passenger with any illegal activity at all. The Court said you could distinguish Mimms on the ground that with regards to the driver you have suspicion that he's --

Justice Kennedy: No, I disagree with that.

The holding there was that the passenger was stopped, the passenger was seized, so this was a pat down in the context of an ongoing seizure.

Mr. Heytens: Justice Kennedy, I guess I would say we disagree with this. The Court didn't hold until Brendlin that a passenger is seized by virtue of the initial traffic stop. The Court went out of its way in Brendlin to say that none of its previous decisions had answered the question of whether the passenger is seized by virtue of the original traffic stop. And the Court didn't even identify --

Justice Kennedy: Well, even if that's true, why don't we accept Mimms with the gloss of Brendlin?

Mr. Heytens: We think that Brendlin is of course absolutely correct, and we think the passenger was seized, and we think fundamentally that's why this case is fairly easy.

Justice Ginsburg: But you say -- your brief goes much, much further. And I'm looking at page 9 where you say: "Police have to be able to protect the officer's safety from a person reasonably believed to be armed and dangerous whenever the officer encounters that person in a place where the officer has a lawful right to be."

I read that to mean if the law -- the officer is on the street, in a pub, any place where he has a lawful right to be, that officer can, on the basis of a suspicion of armed and dangerous, pat down, and you don't need the first Terry. It's only -- it's only the armed and dangerous.

Mr. Heytens: Justice Ginsburg, we agree that that is ultimately the correct Fourth Amendment rule. But what we're saying is that the Court doesn't need to decide whether it agrees with us on this point -- that point, excuse me, to resolve this case, because there are two very important distinctions between this case and that one.

The first one is that we know that Mr.

Johnson was seized. This was not a consensual encounter. We know under this Court's holding in Brendlin that there was a seizure of Mr. Johnson in this case. And the question is whether anything happened in this case to unseize him; and we think that the answer to that question is clearly no.

And then the second reason is this Court has recognized over and over again that traffic stops pose unique heightened dangers to police officers, and so regardless of what the rule is outside the traffic stop --

Justice Stevens: But you'd apply the same rule if the -- if the officer just stopped to help the guy change his tire.

Mr. Heytens: We do think that at the end of the day, Justice Stevens, the overriding command of the Fourth Amendment is that a police officer's conduct must be judged by a reasonableness standard, and we think that overriding command allows police officers to take limited and appropriate steps to protect their own safety.

Justice Souter: But I take it, if I understood your earlier answer, you would extend the application of the rule as you understand it to the encounter simply on the sidewalk by a police officer who has no suspicion that the individual he wants to talk to has been, is or is about to commit a crime, but if the officer chooses to initiate the conversation, he then, in effect, if he can articulate any suspicion, like we'll say the dirty look and the bulge on the side, he can go ahead and pat down. Is that -- is that your view?

Mr. Heytens: At the end of the day, Justice Souter, that is our view. I think that case is harder than this case, and let me explain why.

It seems like the argument on the other side is predicated expressly on the notion that unless a police officer has suspicion of crime, he can just avoid dangerous people, like any of the rest of us can choose to avoid them.

Justice Stevens: May I ask you if the Department of Justice has ever taken this position before?

Mr. Heytens: I'm not aware of whether we have had to take this position before, Justice Stevens.

Justice Stevens: I'm asking you whether you have. You don't think they have, do you? It's a rather extreme position.

Mr. Heytens: I'm not aware of whether we have taken this position or not in any previous case, because I'm not aware of any case that raises the issue that's raised by the going up to someone on the street hypothetical.

We have certainly consistently taken the position that in the context of traffic stops it is constitutionally reasonable for police officers to perform Terry frisks whenever they have reason to believe that their safety is in danger. As I was saying to Justice Ginsburg, I think -- excuse me, Justice Souter, I believe -- I think the problem in the hypothetical where the officer goes up to someone on the street, it's predicated under the assumption that the police officer, like you and me, should just avoid dangerous people.

We think that's fundamentally wrong about what the nature of a police officer's job is.

Justice Souter: Well, there's something fundamentally wrong probably about that, but the -- the -- I think the problem that sort of drives the questioning is that if you extend the rule as far as you want to extend it, we have to take into consideration that the standard of articulable suspicion is the standard that, in practical terms, can pretty well always be met.

You can -- you know Benjamin Franklin's remark, it's great to be a reasonable person because you can think of a reason for anything you do. And that's what's driving, at least driving my questions.

Mr. Heytens: Well, I certainly would add, Justice Souter, that it has to be a reasonable person.

It's not that a police officer can recite some reason.

It's whether a reason that a reasonable person in that position would find reasonable.

Justice Souter: Yeah, but what the officer cites is going to be a matter of fact, and the facts at that point are gone, they're in the past. And all you've got is the officer saying, you know, this is -- this is what I perceived. And maybe you've got the a -- defendant somewhere saying, oh, no, it wasn't like that.

But in a -- in a situation like that, if articulable suspicion, in effect, can justify a sidewalk pat down without any articulation of a basis to think crime is afoot, then you've got a -- you've got a pretty wide open standard in the real world.

Mr. Heytens: Well, I guess, Justice Souter, to the extent you're concerned about that, I would say the same thing is true about whether you have articulable suspicion of criminal activity, and the Court has decided that that risk is worth, you know, dealing with under the context of that question. So I don't really understand why in principle articulable suspicion of armed and dangerousness is any different.

I would also say that in this case, regardless of whether there will be hard cases, the decision that this Court is reviewing is expressly predicated on the view that Officer Trevizo had reasonable suspicion Mr. Johnson was armed and dangerous. That's on pages 13 and 14 of the petition appendix.

It is also the predicate of the question on which this Court grants review. The question which this Court granted review presupposes that she had a reasonable suspicion.

Thank you very much.

ORAL ARGUMENT OF ANDREW J. PINCUS ON BEHALF OF THE RESPONDENT

Chief Justice Roberts: Thank you, counsel.

Mr. Pincus.

Mr. Pincus: Thank you, Mr. Chief Justice, and may it please the Court:

I think the other side made clear that its principal argument is that Terry should be revisited and that the two tests that Terry prescribed for a pat-down search, that there be reasonable suspicion that crime is afoot and reasonable suspicion of armed and dangerous, should be revised so that all that is required for a pat-down search is the second Terry standard.

Chief Justice Roberts: What if -- we've been talking about the officer approaching somebody on the street who has the bulge in his pocket, what if the person with the bulge in his pocket approaches the officer? Can the officer at that point, even if he has no suspicion that crime is afoot, conduct a pat down?

Mr. Pincus: No, I don't think so, Your Honor. I think that --

Chief Justice Roberts: This is -- this is like the rule in the Old West that the sheriff has to wait for the defendant to draw first?

Mr. Pincus: No, I think the officer can -- it's -- I think it's important to make clear that the sliver of cases we're dealing with here are cases where there is a reasonable suspicion of armed and dangerousness but not a reasonable suspicion that crime -- criminal activity is afoot.

Chief Justice Roberts: So in response to my

Mr. Pincus: If there really is --

Chief Justice Roberts: One moment. In response to my hypothetical, even though the officer reasonably thinks he is in a situation where he could be shot, he can't do anything about it, not even a simple pat down, even though he did not initiate the contact, somebody comes up to him?

Mr. Pincus: If he reasonably believes he could be shot, Your Honor, then probably there is reasonable suspicion of criminal -- that criminal activity may be afoot because he'll have --

Chief Justice Roberts: No, no, let's just say it's like this case: The guy's coming up, he's wearing the colors of the Crips gang and he has a bulge in his pocket. It's not a crime to wear that type of clothing; it may not be a crime to have a bulge in your pocket; but he nonetheless has a reasonable suspicion that he's being -- he's in a threatening situation, even though he has no basis for thinking that a crime is being committed.

Mr. Pincus: Well, Your Honor, I think this goes a little bit to Justice Souter's comment in the first part of the argument. These two standards are -- are somewhat -- are mutually reinforcing, as we discuss in our brief. And if, indeed, as here, the State is only arguing armed and dangerousness, and not arguing that criminal activity is afoot, it's clearly putting itself at the low end of the armed and dangerous.

Justice Ginsburg: But that's not -- Mr.

Parkhurst said in his opening that the traffic stop is the equivalent of the articulable suspicion that a crime is the equivalent of the articulable suspicion that a crime is afoot. It justifies this stop, and then you have to have something further to justify the pat down, but the car, the seizure of the car and its passengers, that is the equivalent of the first Terry. And why isn't that so? It's a stop; it's a legitimate stop.

Mr. Pincus: I think that you're right, Justice Ginsburg, that's the second argument that they make, and our answer to that argument is that we don't think that Mr. Johnson was seized at the time the pat down occurred, as the court of appeals here found. The other side seems to ignore the fact that there is an actual determination by the court of appeals, looking at the facts of the situation, that there wasn't a seizure.

And so--

Justice Souter: Can we pursue that for a minute. What -- I guess -- we -- we all start with the common assumption that -- that there was at least a legitimate stop to start with.

Mr. Pincus: Yes.

Justice Souter: And my -- my question which -- which goes to who was right about whether the seizure, the legitimate seizure had stopped and the consensual encounter had begun, my question is what is it beyond the conclusory statement of the officer that in effect justifies drawing that conclusion that the stop was over?

Mr. Pincus: Well, a couple of things, Your Honor. First of all, the Court has never discussed, but in Wilson it actually reserved the question, of what is the duration of the seizure of a passenger.

Justice Souter: Do we have -- do we have any evidence about duration here?

Mr. Pincus: We don't have any duration, but the question -- I think an important question is does the seizure of the passenger necessarily in all cases coextend with the seizure of the driver? This stop was in an urban area. It might be one thing if it's a stop on a highway where there's really no place for the passenger to go. This was a stop in a -- and where there are concerns about the safety of a passenger who is allowed to wander off and the potential liability of the police. Here the stop was in an urban area, and -- and if the Brendlin says that initially clearly the passenger was seized, the question is how long does that -- that seizure last?

Justice Souter: If in my -- my problem in this case, I guess, in taking your position is, I don't think we have got an evidentiary basis to conclude that what we start by assuming is a legitimate stop has in fact run its course. I don't see how we can draw that conclusion. That's what I'm getting at.

Mr. Pincus: Let me pick up some of the factors we rely on, Your Honor. First, just as a legal matter, the Court has said in Caballes and other cases that the scope of a Fourth Amendment intrusion turns on the purpose. Here we say the scope of the seizure of the passenger should turn on the ability to secure the scene. If the passenger is not involved in what -- in the facts that gave rise to the stop -- if it's clear, for example, quickly that the passenger doesn't own the vehicle, the reasons that -- the driver owns the vehicle, the stop, the basis for the stop relates to the passenger -- we don't see what the basis is for, in an urban setting at least, for any further seizure of the passenger.

Justice Souter: Well, then, in other words, you -- you are -- I -- I'll be candid with you. I would have started with the assumption, based on Brendlin, that if the stop of the car and its driver also effects a stop and a seizure of the passenger, that you start out with the assumption that the seizure of the passenger is going to last for the same duration as the seizure of the car and the driver unless you have a good reason to draw some line and say, no, it doesn't. And I take it that you are not making that initial assumption; am I correct in that?

Mr. Pincus: We're not relying entirely on -- on what I just said. But --

Justice Souter: I think you're rejecting it, aren't you?

Mr. Pincus: No, we're not relying -- we're rejecting that assumption. We don't rest entirely on the notion that the -- that the seizure of the passengers as a matter of law has to end. We think there are special facts here that show that -- that support the idea that the seizure was over. But I think one of them --

Justice Souter: What are those -- what are those special facts?

Mr. Pincus: Well, basically there was this interaction separate from the interaction with the driver to the extent the passenger -- Brendlin says the passenger, one of the reasons the passenger would feel that he or she is seized is because of his or her relationship to the driver and to the stop here. This interaction proceeded separately.

Justice Souter: Are you saying -- are you saying if there are a driver and a passenger and two police officers, and one police officer is dealing with the driver, saying, you know, where's your insurance papers and so on, and at the same time the other officer is questioning the -- the passenger -- are you saying that that independent questioning of the passenger in effect eliminates the -- the passenger's seizure as -- as following from the seizure of the driver?

Mr. Pincus: I think it's -- I think it's part, as the lower court found here, it's part -- it's a relevant circumstance. This is a totality of the circumstance test. The court of appeals here looked at that as one fact, looked at the officer's subjective intention --

Justice Souter: I -- I don't get it. Why should the fact that an officer, a separate officer is talking to the passenger, ultimately have anything to do with the duration of the passenger's seizure, absent a situation in which officer two says, "by the way, you're totally free to go"? We don't have that kind of strange situation. But short of a strange situation like that, why does the conversation with the passenger have anything much to do, have any bearing on the -- on the length of the passenger's seizure?

Mr. Pincus: To the extent -- I think the question here is what's -- one question is what's communicated to the passenger.

Justice Souter: Yes.

Mr. Pincus: If the officer had said in turn, would you mind stepping out of the car so I can ask you some questions unrelated to the stop about your hometown, it seems to us that that statement by the officer would provide some pretty strong indication that the seizure was over and that this was a separate investigation, having nothing to do with the seizure.

Justice Souter: But we accept as hornbook law when they are -- when the police are questioning one individual whom they stopped, let's say for a traffic violation, that during that period of seizure, the reasonable period of seizure, the officer can ask questions about other subjects, and that doesn't end the seizure.

Mr. Pincus: Well, the Court has said that.

Justice Souter: Like the -- passenger.

Mr. Pincus: The Court has said that the officer can ask those questions, but the Court hasn't said what the impact of that is on the seizure. And Here the officer certainly believed that her conduct and her words and her conversation, which we don't know how long it lasted or if there were a number of questions, communicated to the -- to the individual, to Mr.

Johnson, the idea that this was a consensual encounter.

Justice Souter: I don't want to -- I don't want to take up your whole argument on this hobbyhorse of mine, but I mean my -- my only problem is, I don't see that we have got an evidentiary basis here to say that because of the duration or the mere fact of the questioning, there is a reason to say that as to the passenger, a reasonable passenger could say I am no longer seized, and -- and this encounter is totally consensual.

The -- the officer testified, no question about it, but the test is subjective.

Mr. Pincus: It is subjective. And I guess I would also point, Your Honor, to the Court's decision in Drayton, which dealt with the question in a somewhat different context, at a bus search, and whether or not passengers on a bus would feel that they were seized when there were officers in the front of the bus and they were asking questions. And to us, although this is obviously the converse, a lot of the analysis in Drayton, which showed that -- which concluded that there wasn't a seizure there, because of the -- because people ultimately would feel free to come and go, given the nature of the interaction --

Justice Ginsburg: And then don't you lose under that line of cases? This is the picture that the officer was painting, or I thought was, to bring this within the "Mind if I search your luggage" category of cases.

Mr. Pincus: Right.

Justice Ginsburg: So -- she's got consent.

She doesn't have to -- she says, he said okay, he would get out and talk to me; he said okay when I began to pat him down; it's only in the middle of it he began to wriggle a little bit.

Mr. Pincus: I think it's quite clear, Justice Ginsburg, that there's no question here that -- that there was a consent to the pat down. I think the lower courts have concluded and the other side hasn't sought review that there was no consent to the pat down here.

I think the reason that Drayton is -- is relevant is that that's a case where the question for the Court was would these people feel free to terminate the encounter; and the Court concluded yes, they would.

And we think, given the different situation of the passenger, it's true that -- that Brendlin found the passenger seized. To some extent that was to give the passenger a shield, not to be used as the sword for further interrogation of the passenger.

It recognized the reality that at the outset surely the passenger is seized.

Chief Justice Roberts: You're giving up a shield here, I take it? If instead of a pat down, the officer said, where were you last night at 10:00 o'clock, without Miranda warnings, you would say, well that's just -- that's just fine?

Mr. Pincus: Well, you know, Berkemer says, in the context even of a traffic seizure, Miranda warnings aren't necessarily necessary. But what we are saying is that, given the different basis for the seizure here, it's that initial conclusion that at the outset, yes, but that person, unlike the -- unlike the driver, who is the target of the police activity and therefore a reasonable conclusion for the driver is he's seized until the end of that activity, the passenger is not the target of the traffic stop.

Justice Breyer: What are the facts that show that a reasonable person in the passenger's position would have believed himself free to terminate the encounter?

Mr. Pincus: I'm sorry, Justice Breyer --

Justice Breyer: What are the facts that show that the person who was searched, which is Mr.

Johnson -- is that right?

Mr. Pincus: Yes.

Justice Breyer: Well, what are the facts that suggest that he thought he was free to terminate that encounter with the police?

Mr. Pincus: That the -- that the interaction with the officer had nothing to do with the subject of the stop.

Justice Breyer: All right. I would say we've held a lot that that's just beside the point. If you stop a car for a traffic stop, you can search it for all kinds of things. You can do all kinds of things not related. So if that's what they're relying on, I suspect that that's not right, that it had to do with a different subject matter.

Mr. Pincus: Well, I --

Justice Breyer: Say I was lawfully stopped.

All right. Go ahead. I want to get all of them in front of me.

Mr. Pincus: That the officer herself believed that she had communicated the fact that the interaction was voluntary.

Justice Breyer: The question is, how did she do that?

Mr. Pincus: Well --

Justice Breyer: She said, "You can leave whatever time you want"?

Mr. Pincus: She did not do it that way.

Justice Breyer: No. No.

Mr. Pincus: Although the courts --

Justice Breyer: So you're standing there and the policeman is in front of you, and they have stopped the car, and the woman who is the policeman says, "I want to search you." Do you think you're free to leave? (Laughter.)

Mr. Pincus: No, Your Honor, but --

Justice Breyer: Okay, then. So now we have got two of them. What's the third?

Mr. Pincus: Well, the third is that it was in -- it was not a road stop in an abandoned area, where a --

Justice Breyer:

Mr. Pincus: No, No, it was on the highway.

it was in an urban area, actually.

Justice Breyer: It was in an urban area.

Okay. You're stopped in an urban area. The policeman says you are stopped, and you are stopped lawfully.

Will you get out of the car? Yes. The policeman begins to search for the -- the gun. Fine. You think you're free to leave?

Mr. Pincus: Well, obviously it wasn't --

Justice Breyer: What's the fourth? What's the fourth? I just want to get them all out here. Is there anything else?

Mr. Pincus: I think we've gotten them all out onto the table.

Justice Breyer: Okay. So, what they say is a reasonable person would have found -- felt that he could just say good-bye, and he would have felt this even though the car was stopped lawfully, she asked him to get out of the car, and she began to search him for a gun.

Mr. Pincus: Well, Your Honor --

Justice Breyer: I say, can we not reverse that?

Mr. Pincus: Well, Your Honor, a couple of things. I don't think the question is at the moment -- clearly, at the moment she was conducting the pat-down search, he was seized. But if that were the test, then even in the -- in the Terry situation, the person is obviously in fact seized at the time that the pat-down search is conducted, but that's not -- the question is whether there was, in the moments before, there was a basis to immobilize that person.

Justice Breyer: No, I'm saying if the question is whether the person reasonably thought at the time of the search he could leave, there's certainly a strong claim here that he could not reasonably or he did not reasonably think he could leave. As long as that is so, the issue in front of us is when you stop a person, a policeman in the course of your duties, and that person thinks that he cannot reasonably leave, and you believe reasonably that he's armed, can you pat him down? Well, asked that way, certainly a strong argument, the answer is yes, if you don't want to be killed.

Mr. Pincus: Well, I guess a couple of answers to that, Justice Breyer. First of all, if this is just a case about whether the lower court made a correct determination about whether there was a seizure or not, there's not -- maybe there's not much to the case. We think the lower court did make the right determination for the reasons that I gave. And I should say, it seems -- it does seem to me, and I was trying to get at this point in response to Justice Souter's question, there are two related questions here. One is what a reasonable person in Mr. Johnson's position would believe? One is what is the authority of an officer in terms of the duration for which a passenger may be seized? One answer --

Chief Justice Roberts: Well, if you look at the first part of that, what somebody in Mr. Johnson's position would believe, how does he tell? I mean, even if the other officer goes to the window and starts asking the driver, "Can I see your insurance papers," there's no representation that's why we stopped you, that's all we're interested in. They may have stopped him because they have reason to believe that that car was involved in criminal activity. They don't have to disclose immediately what's involved.

So how can the passenger know why the officer is stopping the person in the first place? Hypothesize that he has been involved in criminal activity. He may think, well, they've caught me and they're just going through this charade to try to get information about it and make the people feel comfortable, whatever. I mean, just because he says, "You don't have insurance papers," that's -- I don't think it's reasonable for the passenger to say, "Oh, this is not about me. I can get up and leave."

Mr. Pincus: Well, that may not be -- by itself, it may not be enough. We think, together with the other factors here, the fact --

Chief Justice Roberts: Well, what else?

Mr. Pincus: Well, the fact that the officer believed, therefore her tone, we have to assume, the way she -- that she spoke and the way her subjective intent indicated, that she believed what was going on here was a conversation in an effort to get gang information --

Chief Justice Roberts: He is supposed to assume that it's not about him because of her tone?

Mr. Pincus: No, he was supposed to assume that it was consensual because of her tone, because that was her intent.

Justice Breyer: Suppose we go beyond. I mean, once we go beyond, I become a little at sea as to what the answers are because policemen do things other than investigate crime.

A policeman is on protective duty. The individual he is protecting is approached by a member of the Crips gang, who has a bulge in his pocket. Can the police, with reasonable grounds to think that that person is armed, pat down that person? Or is he supposed to wait until the gun comes out of the pocket and the person who is being protected is shot? A policeman is on a bridge. Somebody stops the car in the middle of the bridge. Traffic is held up in all directions. The policeman goes to try to remove the car from the bridge. In the back seat is a member of the Crips gang with a bulge in his pocket. Is the policeman supposed to ignore that? I mean, policemen do many things, and once you tell me that we're going beyond the facts of this case, I can think of all kinds of hypotheticals that aren't so hypothetical, and I become uncertain about when the policeman can and when he cannot.

So, how do you respond?

Mr. Pincus: Well, Your Honor, I think that -- first of all, a couple of reactions: First of all, I think that it is important, and I alluded to this earlier, the sliver of cases we're dealing with here are cases in which there is reasonable -- allegedly a reasonable suspicion that someone is armed and dangerous, but not reasonable suspicion that criminal activity is afoot. Those two standards are mutually reinforcing. In most cases where there is serious evidence that someone is armed and dangerous, you're going to have a very -- almost certainly you will have a reasonable suspicion that crime is afoot because the dangerousness part requires -- means you'll have suspicion of assault or some other kind of activity. So I --

Justice Scalia: Mr. Pincus, I want to go back to the previous subject for a minute. We certainly didn't take this case to decide whether the passenger was free to leave or not. That -- that was not the issue on which we took the case. And you claim that that issue has already been resolved by findings of the lower courts?

Mr. Pincus: That the court of appeals here determined -- its decision rested on the fact that this was a consensual encounter.

Justice Kennedy: But that --

Justice Scalia: In order to contradict that, would we have to find that that's clearly erroneous?

Mr. Pincus: Well, I think it's a mixed question of fact and law, Your Honor. So I think, with respect to the underlying facts, you probably have to find that --

Justice Breyer: Is there any dispute on the underlying facts?

Mr. Pincus: No --

Justice Breyer: No.

Mr. Pincus: -- I don't think the underlying facts are disputed.

Justice Stevens: Well, there is a dispute as to whether the man thought he was free to leave.

That's a big dispute, isn't it?

Mr. Pincus: That is -- that is the disputed question: Whether -- or whether a reasonable person in his position --

Justice Stevens: Did he testify?

Mr. Pincus: No, not at the petition --

Justice Stevens: So nobody asked him whether he thought he was free to leave -- which would have solved a lot of problems.

(Laughter.)

Chief Justice Roberts: Your hypothesis about why she -- why he was free to leave is because of the tone of the arresting officer? The tone of the --

Mr. Pincus: It's the totality of the circumstances: The tone of the officer, the fact it was in an urban area where there were some place --

Chief Justice Roberts: And there's no finding about the tone of the officer, right?

Mr. Pincus: Well, the officer herself testified about what her intent was. And I think most people, when they -- that's their intent, it's carried through in how they interact with someone.

Justice Alito: Well, you keep emphasizing that this is an urban area, and it seems to me that's going to lead to a test that's impossible to administer.

I can think of a lot of circumstances in which the passenger in a car that is stopped will not think for practical reasons that there is much alternative but to wait until the driver is permitted to get back in the car and drive away.

All of those would fall under your urban category, wouldn't they? If it's night -- suppose this was a dangerous area. Suppose this was in an area that was the turf of a rival gang, so it really wouldn't be very practical for this person to start walking down the street. There are not just urban areas and rural areas; there are expressways in urban areas; there are suburban areas.

Mr. Pincus: Well, Your Honor --

Justice Alito: All of those things would -- you would have to draw a line taking all of those things into account.

Mr. Pincus: It -- it would be a factual question in every case as it is in the typical Fourth Amendment arrest case about whether someone is seized.

Justice Kennedy: Well, we didn't think it was a factual question in -- in Brendlin. In Brendlin we said even when the wrongdoing -- this is at page 7 -- even if the wrongdoing is only bad driving, the passenger will expect to be the subject of some scrutiny. And his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place. And that's why we held there was a seizure. You're basically arguing with the premise of Brendlin.

Mr. Pincus: Well, Your Honor, I'm absolutely not. I think Brendlin clearly holds that there is a seizure at the outset. The question that Brendlin does not explicitly address, and it's one the Court explicitly --

Justice Kennedy: Brendlin says no passenger would like -- would feel free to leave during the course of the investigation. And -- and I would have to agree with that as a -- as a common-sense matter.

It would be amazing to me that this fellow said: I'm not going to talk to you anymore; I'm leaving; and -- and the -- and the police officer would allow it, particularly when the police officer, we know, searched the person.

Mr. Pincus: Well, I don't -- I mean I think it -- it may depend upon the other facts in that -- in that situation, Your Honor.

Justice Breyer: What are the facts? That is, this happened quite close to the beginning of the -- of the stop, didn't it?

Mr. Pincus: We don't know.

Justice Breyer: We don't know. I -- I read this. But it said -- I mean I thought, from judging it, that it did happen within a few minutes of the -- of the beginning. They were still talking to the driver. We know that.

Mr. Pincus: We -- we actually don't, Your Honor.

Justice Breyer: We don't?

Mr. Pincus: We don't. We know that the -- that the conversation seemed to be -- the interaction seemed to have started shortly after the interaction with the driver.

Justice Breyer: Yes.

Mr. Pincus: We don't know how they -- how long they --

Justice Breyer: Well, is there any reason to think it was half an hour?

Mr. Pincus: We just don't know. The -- the record doesn't say. We don't know.

Justice Stevens: Do you agree that if you -- if you lose on the seizure issue, you lose?

Mr. Pincus: Well, Your Honor, we think if -- if there was a seizure, then -- then we think there is a -- a second question, which is even if the person was seized, it's not clear to us that the Court's precedents say that -- that that automatically permits a pat down on armed and dangerousness.

My friends rely on Mimms. The Court in Mimms made very clear -- and, in fact, as we recite on pages 31 to 32 of our brief -- footnote 5 in Mimms says that the reason for the pat down there was that once the driver alighted, the officer had independent reason to suspect criminal activity and present danger. And it was on that basis that the pat-down search was permissible.

So the Court hasn't said that in the context of a roadside stop, once you are seized in this, at least for a passenger, somewhat different sense than a Terry seizure based on articulable suspicion about that person's criminal activity, that is enough. We think the relevant standard there is supplied by the Court's decisions in -- in Summers and associated cases, which say the officer can control the scene, and that might allow a pat-down search if that's what the officer is trying to do.

Justice Scalia: I guess what about -- I -- I guess if we held that you could do this, this pat-down search here, it would probably carry forward to any other kind of seizure like a -- a roadblock to inspect for drunken driving or anything like that?

Mr. Pincus: Well, that's -- that's part of the concern, Your Honor.

Justice Scalia: We would say the same thing: That if there is a passenger in that car, you could tell the passenger to get out and conduct a pat-down search.

Mr. Pincus: Yes, even though -- even though, again, there is no particularized suspicion about that passenger. So this is a pretty dramatic expansion of the officer's ability to -- to search, and we think it should be cabined very closely to those situations in which there really is a threat of armed and dangerous.

And as I was saying before, "armed and dangerousness", "a reasonable suspicion that a crime is afoot," are mutually reinforcing. If one isn't present, if the State, as here, is arguing that one isn't present, it tends to cast doubt on whether the other is present.

Chief Justice Roberts: Why isn't the -- why isn't the "seizure" and the "consensual" aspect also mutually reinforcing but kind of blurring into each other? It seems to me it's an awfully difficult decision for the officer to make. I stopped this person. I know under Brendlin that he is seized, and I'm engaged in a dialogue, and I have to worry that at some point he thinks he is free to leave.

Mr. Pincus: I'm -- I'm not sure that I understand what you are -- what you are getting at in your -- in your question.

Chief Justice Roberts: Well, you seem -- your argument assumes a fairly bright line between the point at which the individual is seized and the point at which the interaction becomes a consensual search. And I'm just saying that in the running line of cases, that line is going to be very blurry.

Mr. Pincus: As it is blurry when the -- in the converse situation when the question is --

Chief Justice Roberts: No. The converse situation is that so long as the interaction continues, it is a seizure, and the officer can take reasonable steps, the pat down to protect, her safety. That doesn't have a line-drawing issue.

Mr. Pincus: No, I'm talking about the Drayton situation, Your Honor. When the -- when the question is: Has a consensual interaction morphed into a seizure, then there is also a -- a -- it's an uncertain line. But the Court has said that there it's a totality-of-the-circumstances test and, obviously -- sort of -- the shoes are all on the other feet there, because the -- law enforcement doesn't want that to happen. And so it's arguing that the facts don't amount to a seizure, and here we're sort of in the converse situation.

Justice Kennedy: You -- you don't concede in this case, or do you, that Trevizo had a reasonable suspicion that Johnson was armed and dangerous? That has not been found for purposes of --

Mr. Pincus: Absolutely not. The lower court assumed it for the purposes of decision --

Justice Kennedy: So even if you did not prevail, we would have to remand on that point?

Mr. Pincus: Yes, that point would have to be remanded so that the court below could address it.

Just to -- just to return to the final point, the -- the sliver of cases we're talking about here, "armed and dangerousness, but not crime afoot," it's a very small sliver. The government hasn't shown that that's a real problem that has to be taken care of.

In fact, in this case if the officers really had believed that -- that there was proof of "armed and dangerousness," why wouldn't they have argued that they had proof that crime was afoot, given that they knew that Mr. Johnson was a felon? We think that the reason that the State took that off the table was it doesn't have a lot of confidence in --

Justice Breyer: Is it lawful to possess a firearm?

Mr. Pincus: If you're a convicted felon, no?

Justice Breyer: Was he convicted?

Mr. Pincus: He had admitted to the officer that he had engaged in burglary. In fact, that's one of the reasons to show that he's not dangerous is that he was very forthcoming about the fact that he had a conviction. So the fact that the State took that off the table and didn't rely on it, we think, shows, (a), that they don't have a lot of confidence that there's real "armed and dangerousness" here. And so that the "danger" in a systemic sense, as Justice Souter pointed out, relying only on that prong as the basis for cabining off, is discretionary. As justice Kennedy said in a separate decision in Whren, it's very easy to -- to conduct an unlawful search.

Justice Stevens: I have difficulty accepting your suggestion that there is a sliver of cases. It seems to me there are a multitude of cases in which officers might suspect somebody is armed but not think criminal activity is afoot, but decide they would like to pat them down.

Mr. Pincus: I think it is the "dangerousness" element, Your Honor. If they are "armed and dangerousness," which is the test that the Court set out in Terry and it is the test that my colleagues are asking for, "dangerous," to me, connotes a threat to someone. And it's a very small step, I think, between being a threat to someone and having a reasonable suspicion that an assault may be committed.

Justice Stevens: Do you argue in -- in all of this that this guy was not dangerous?

Mr. Pincus: We -- we agree. We argue very strenuously that he wasn't dangerous, but -- but I -- I think the key point here is -- is that it -- it may well be a sliver of cases, but removing the sort of mutually reinforcing nature of these two tests threatens to really downgrade the standard in a way that officer discretion --

Justice Ginsburg: How could he not be dangerous? First, she said: I suspected him because he was looking behind, but -- and then she said he was wearing the clothes of a gang, and then he admits to having been convicted of a burglary. Why isn't it very normal for a person to be apprehensive?

Mr. Pincus: All right. Let me give three quick answers to those. First of all, he looked -- this was an unmarked car, Your Honor. I -- I think a -- a very reasonable inference is he looked behind because he was surprised that there were, all of a sudden, flashing lights and a siren on a car.

The gang colors, as the lower court -- the Court of Appeals here noted, although Mr. Johnson was wearing blue, the driver was wearing red. If these were really gang colors, it -- it -- it is not consistent with the conclusion that they were gang colors to have people of different colors who were rival gangs in the same car.

And the third thing is, as lower courts have found, acknowledging prior criminal convictions is a basis for concluding that someone is not dangerous because they were forthcoming.

Chief Justice Roberts: Thank you.

Justice Scalia: Not so fast.

(Laughter.)

Justice Scalia: The "armed and dangerous" requirement, does the "dangerous" requirement mean endangering the policeman, or is it enough -- is it enough if -- if you think this fellow is -- you know, he's just a dangerous character. Is that enough, or does it have to be an immediate threat to the policeman?

Mr. Pincus: I don't think this Court has come down one way or -- or the other, Your Honor. I --

Justice Scalia: What do you think?

Mr. Pincus: It seems to me there -- there is a requirement of immediate danger.

Justice Scalia: It's -- it's not enough if you think he's -- he's Al Capone?

Mr. Pincus: I don't think if he's just a fishy character, it's enough. I think the reason is immediate threat to society.

REBUTTAL ARGUMENT OF JOSEPH L. PARKHURST ON BEHALF OF THE PETITIONER

Chief Justice Roberts: Thank you, counsel.

Mr. Parkhurst, you have a minute remaining.

Mr. Parkhurst: This -- this case falls directly under Mimms and Wilson. Mimms and Wilson both hold that the officer has the authority to control the occupants of an automobile with or without suspicion of any wrongdoing by the occupant.

In this case, also, the traffic stop satisfies the first prong of Terry, as we know from Mimms. Also, there's no reason to suggest that this was any more than the normal length of a traffic stop here.

In fact, the evidence was that the -- one officer was still talking with the driver while Officer Trevizo was conversing with Mr. Johnson.

Justice Scalia: What do you -- what do you say about the other -- the other side's point that in the case of a Terry stop there's a -- a mutually enforcing -- reinforcing aspect? You have a suspicion that -- there is crime afoot to begin with, plus the -- the suspicion that the person is armed and dangerous; whereas, here, you know, it's a traffic stop is all.

Mr. Parkhurst: The -- yes, that's true.

However, we --

Justice Scalia: So what -- what is required where you think criminal activity is afoot is not necessarily going to be the same as what's required when you -- when there's just a traffic stop.

Mr. Parkhurst: She -- Officer Trevizo testified repeatedly at the hearing that she did not believe he was actually about to commit a crime. She could not put her -- put her finger on exactly what it was that he was doing at the moment.

However, we believe that in the context of a traffic stop we -- the State has satisfied the first Terry prong here because traffic stops frequently don't involve any kind of criminal activity, just as -- as in this case, a civil violation. However, that was enough to put the officer and the individual in close proximity, and if she noticed enough indicia of -- that he was dangerous, she certainly was authorized to conduct a pat-down search.

Chief Justice Roberts: Thank you, counsel.

The case is submitted.

(Whereupon, at 11:07 a.m., the case in the above-entitled matter was submitted.)