In an interesting twist to Brendlin on the stop of the driver being a stop of the passenger, Arizona speaks to when the passenger is free to leave, if separate from the driver. Here, the officer ordered defendant out of the car for reasons completely unrelated to the purpose of the initial stop and patted him down without regard to any claim of safety. Therefore, the patdown was suppressed. State v. Johnson, 217 Ariz. 58, 170 P.3d 667, 512 Ariz. Adv. Rep. 3 (2007), cert. gr 2008 U.S. LEXIS 5208 (June 23, 2008):
P18 We have found no case law governing when the seizure of passengers in a vehicle, incident only to a driver’s traffic violation, terminates. See Maryland v. Wilson, 519 U.S. 408, 415 n.3, 117 S. Ct. 882, 886 n.3 (1997) (declining to reach this issue). However, common sense suggests that at some point during the encounter the passengers in the vehicle must be free to leave–their fate is not entirely tied to that of the driver. Obviously, if a driver is arrested and taken to the police station, innocent passengers will not also be taken into custody or required to accompany the driver. If the passengers are told they are free to leave and do so, it is clear they are no longer seized; it is equally clear that, if they are being questioned about the reason for the stop, they remain seized. It is less clear when passengers’ seizures terminate under factual situations that lie within the extremes of these examples, but we must be guided by reasonableness. See Ohio v. Robinette, 519 U.S. 33, 39, 117 S. Ct. 417, 421 (1996) (“The ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.”), quoting Florida v. Jimeno, 500 U.S. 248, 250, 111 S. Ct. 1801, 1803 (1991).
. . .
P20 When we examine whether Trevizo’s encounter with Johnson evolved into a consensual encounter, we note that Trevizo’s interaction with Johnson and her questions to him were wholly unrelated to the purpose of the traffic stop. Trevizo testified that she and her team “were not investigating gang activity as part of the traffic stop,” stating she spoke with Johnson solely because she “wanted to gather intelligence about the gang he might be in,” “a choice [she] made to further [the] mission of [her] task force.”
P21 Had Trevizo wanted to order Johnson out of the car after it had been stopped, she could have done so. See Wilson, 519 U.S. at 415, 117 S. Ct. at 886 (“[A]n officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”). However, Trevizo did not do so. As we already noted, Trevizo conceded that, as far as she was concerned, Johnson “certainly” “could have refused” her request to get out of the car.
. . .
P23 And, most importantly, neither Trevizo nor the other officers ordered all the occupants to get out of the vehicle during the traffic stop for officer safety reasons. Indeed, the front seat passenger remained in the car throughout the encounter. This fact lends further support to the conclusion that Trevizo’s questioning of Johnson was wholly unrelated to the stop and constituted a separate, and consensual, encounter.
. . .
P27 We find that Trevizo’s initial lawful seizure of Johnson incident to the traffic stop of the driver evolved into a separate, consensual encounter stemming from an unrelated investigation by Trevizo of Johnson’s possible gang affiliation and that, under the circumstances of this case, a reasonable person in Johnson’s position would have felt free to remain in the vehicle. The state has admitted the officers had no reason to believe Johnson was involved in criminal activity when Trevizo searched him. Trevizo’s request that Johnson step out of the car to discuss gang activity, and not for officer safety purposes, was part of a consensual encounter. Accordingly, she had no right to pat him down for weapons, even if she had reason to suspect he was armed and dangerous. See Ilono H., 210 Ariz. 473, P11, 113 P.3d at 699. Accordingly, the trial court erred in denying Johnson’s motion to suppress the evidence found. See Moody, 208 Ariz. 424, P62, 94 P.3d at 1140.
Brendlin was cited and briefly discussed, and it was decided after submission of the case. The court concluded that Brendlin did nothing to answer the question there.
Defendant has already been held to lack standing to contest the search of the motel room he was in. His second motion to reconsider does no better because claiming it was an invalid probation search misses the mark. United States v. Molsbarger, 2007 U.S. Dist. LEXIS 66448 (D. N.D. September 6, 2007).*
Defendant’s continued detention was based on [really thin] reasonable suspicion. Consent thereafter was valid. Lane v. State, 287 Ga. App. 503, 651 S.E.2d 798 (2007).*
