Johnson v. Indiana

Cato has submitted a brief urging the Supreme Court to take this case and rule that a warrantless search must be justified by an officer’s actual suspicion that a suspect is armed and dangerous.

April 30, 2021 • Legal Briefs

Michael Johnson was enjoying a slow morning at an Indiana casino when two gaming commission agents approached him and asked to speak in the interview room. Another casino patron had told security that a black man with a white hat had offered to sell him cocaine. After taking Mr. Johnson into the interview room, one agent patted him down, felt a large ball in his pocket, and removed a plastic baggie containing baking soda. Mr. Johnson was arrested and charged with possessing with intent to distribute a drug look‐​alike in violation of state law. Mr. Johnson filed a motion to suppress the baking soda. He argued that the pat down was an unlawful search in violation of the Fourth Amendment. The Supreme Court ruled in Terry v. Ohio that an officer can conduct a brief pat down without a warrant when the officer believes the suspect is armed and dangerous. But the gaming agent never testified that he believed Mr. Johnson was either armed or dangerous—it was just “common” practice to pat down suspects at the beginning of an interview. The trial court denied Mr. Johnson’s suppression motion. Mr. Johnson was convicted and sentenced to four years’ imprisonment.

On appeal, Mr. Johnson again argued that the search was a violation of his Fourth Amendment rights. The Indiana Supreme Court relied on Terry v. Ohio, but misapplied the law. The court did not consider whether the agent actually suspected that Mr. Johnson was armed and dangerous. Rather, it looked exclusively to whether a hypothetical person in the same circumstances could reasonably have suspected that he was armed and dangerous. The Indiana Supreme Court’s decision stretches Terry’s narrow exception to the Fourth Amendment beyond recognition, and lower courts are split on how to weigh an officer’s actual suspicion (or lack thereof) when considering the constitutionality of a Terry search.

Cato has submitted a brief urging the Supreme Court to take this case and rule that a warrantless search must be justified by an officer’s actual suspicion that a suspect is armed and dangerous. In the brief we argue that the original public meaning of the Fourth Amendment would not have supported a warrant exception without an actual suspicion standard, and when courts allow Terry pat downs on the basis of something less than actual suspicion they abdicate their duties to enforce constitutional limits on government power. Simply put, what some purely hypothetical officer might have believed under the same circumstances is an exercise in raw speculation and one that ends up being undertaken on the wrong side of the veil of ignorance—after the government has discovered whether the suspect was in fact armed or carrying contraband.

Johnson-v-IN-cover.jpg
About the Authors
Mallory Reader
Legal Associate, Robert A. Levy Center for Constitutional Studies
Ilya Shapiro

Director, Robert A. Levy Center for Constitutional Studies, Cato Institute