State of Iowa v. Kha Len Richard Price-Williams ( 2022 )

IN THE SUPREME COURT OF IOWA
No. 19–1857
Submitted September 23, 2021—Filed April 22, 2022
STATE OF IOWA,
Appellee,
vs.
KHA LEN RICHARD PRICE-WILLIAMS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan
(suppression) and Samantha Gronewald (trial and sentencing), Judges.
The defendant challenges his conviction for being a felon in possession of
a firearm under Iowa Code section 724.26, arguing he was subjected to an
impermissible seizure and interrogation. DECISION OF COURT OF APPEALS
AND DISTRICT COURT JUDGMENT AFFIRMED.
Christensen, C.J., delivered the opinion of the court, in which Waterman,
Mansfield, McDonald, Oxley, and McDermott, JJ., joined. Appel, J., filed a
dissenting opinion.
2
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson
(argued), Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall (argued), Assistant
Attorney General, for appellee.
3
CHRISTENSEN, Chief Justice.
It was late at night when police officers stopped a Lyft vehicle for traffic
violations. Upon hearing the passenger’s name, one of the officers recognized the
passenger from past eluding incidents, including a previous traffic stop with the
officer in which the passenger attempted to flee from the traffic stop on foot with
a firearm in his hand. Concerned for the officers’ safety, the officer ordered the
passenger out of the vehicle to conduct a pat-down for weapons. During the pat-
down, the passenger admitted in response to questioning from the officer that
he had a firearm and the police discovered a firearm in the passenger’s coat
pocket, leading to a criminal charge of felon in possession of a firearm in violation
of Iowa Code section 724.26 (2019).
The passenger moved to suppress all evidence obtained after the exit order,
arguing law enforcement violated his rights under article I, section 8 of the Iowa
Constitution and the Fourth Amendment to the United States Constitution by
ordering him out of the vehicle and subsequently patting him down without
reasonable and articulable facts to justify those actions. He also sought to
suppress his admission to possessing a firearm, claiming law enforcement
violated his state and federal rights against self-incrimination by questioning
him about whether he had any weapons on him without a Miranda1 warning.
The district court denied the motion to suppress concerning the discovery of the
1See Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).
4
firearm and the passenger’s admission to possessing it and later convicted the
passenger following a bench trial on the minutes.
The court of appeals affirmed, and we granted further review. Upon our
review, we affirm the court of appeals decision and district court judgment
because the officer had reasonable suspicion to justify ordering the passenger
out of the vehicle and subsequently patting the passenger down for weapons.
Because the State confirmed it is not separately relying on the defendant’s
admission to possessing a firearm and reasonable suspicion existed to support
the pat-down regardless of the admission, we do not address the defendant’s
Miranda claim.
I. Background Facts and Proceedings.
Around 11:30 p.m. on February 14, 2019, Kha Len Price-Williams was a
rear-seat passenger in a Lyft2 vehicle in Des Moines when Officer Brian Buck of
the Des Moines Police Department pulled the Lyft driver over for multiple traffic
violations. Officer Buck’s body camera captured this encounter. Officer Buck
informed the driver of the reasons for the stop and asked him for his license,
registration, and proof of insurance. While the driver was retrieving those
documents, Officer Buck asked Price-Williams where the driver was taking him.
Price-Williams explained he was going to visit his child. Officer Buck asked Price-
2Lyft is a “[t]ransportation network company” that “uses a digital network to connect
transportation network company riders to transportation network company drivers who provide
prearranged rides.” Iowa Code § 321N.1(5). Lyft drivers use their “personal vehicle to offer or
provide prearranged rides to transportation network company riders upon connection through a
digital network controlled by a transportation network company in return for compensation or
payment of a fee.” Id. § 321N.1(6)(b).
5
Williams for his identification card, but Price-Williams said he left it at home.
Officer Buck then asked Price-Williams for his name, date of birth, and the last
four digits of his social security number, which Price-Williams provided. Officer
Brandon Holtan arrived to assist Officer Buck as Officer Buck was speaking to
the vehicle’s occupants.
After retrieving the occupants’ information, Officer Buck returned to his
vehicle to check whether either of them had outstanding warrants on the police
department’s mobile database. In the meantime, Officer Holtan turned his body
camera on and positioned himself outside the rear passenger side of the vehicle
where Price-Williams was sitting. The recording of the first minute of Officer
Holtan’s conversation with Price-Williams does not contain audio because there
is a one-minute buffer period prior to turning the camera on that provides video
but not audio. Nevertheless, the video shows Officer Holtan and Price-Williams
having what appears to be an amicable conversation.
When the audio begins about a minute into the video, Officer Holtan is
heard asking Price-Williams about something that happened in November and
Price-Williams indicated he was involved in an eluding incident for speeding.
Price-Williams then began to explain again where he was going, stating, “I’m just
going home to see my kid. I just, my baby mama, she just got me a Lyft, you can
call her. I’m just—I’m just a passenger.” He tried to get the mother of his child
on the phone to talk to Officer Holtan, but Officer Holtan indicated that was not
necessary. Price-Williams then continued to talk about how he noticed the Lyft
driver speeding until Officer Holtan asked him to “step out for [him] real quick.”
6
Upon being asked to step out, Price-Williams stated, “say what?” and,
though the video becomes dark and harder to see because Officer Holtan moved
his flashlight, there was a pause with no conversation. Officer Holtan told Price-
Williams again to step out of the vehicle and Price-Williams moved his hand
toward his coat pocket. Officer Holtan then warned Price-Williams not to reach
and Price-Williams put his arms up as he remained in the vehicle and stated he
was putting his phone in his pocket. Officer Holtan drew his weapon and ordered
Price-Williams out of the vehicle. Officer Buck observed Officer Holtan draw his
weapon while he was still entering the vehicle occupants’ information to search
for outstanding warrants and quickly left his vehicle to assist Officer Holtan.
After Officer Buck arrived to assist, Officer Holtan can be heard saying that
he “arrested [Price-Williams] for a gun about a year ago, so we’re going to do a
Terry3 pat.” As Officer Holtan was patting down Price-Williams, Officer Buck
asked Price-Williams if he had any weapons on him. Price-Williams indicated he
did, and Officer Buck asked him where the weapons were while Officer Holtan
continued to perform the pat-down. Just as Officer Holtan was patting Price-
Williams’s front coat pocket area, where he felt the weapon, Price-Williams stated
the firearm was in his coat pocket and the officers subsequently placed Price-
Williams in handcuffs before Officer Buck retrieved a loaded nine-millimeter
semiautomatic pistol from the coat pocket. The State formally charged Price-
3See Terry v. Ohio, 392 U.S. 1, 30–31 (1968).
7
Williams with being a felon in possession of a firearm in violation of Iowa Code
section 724.26, a class “D” felony.4
Price-Williams pleaded not guilty and moved to suppress all evidence
obtained during the search and seizure, arguing he “was questioned and seized
without reasonable and articulable facts to justify such actions.” The district
court conducted a suppression hearing on the motion. During the hearing,
Officer Holtan testified to his description of the encounter, explaining,
I was positioned on the passenger side of the vehicle adjacent to the
rear seat passenger. When Officer Buck asked [Price-Williams’s]
name, I recognized his name as Kha[ L]en Price[-]Williams, who I
had previously encountered on, I believe December 10, 2017, when
I conducted a traffic stop where Kha[ L]en was the driver for a minor
traffic offense.
He then attempted to elude me [in 2017]; stopped the vehicle;
ran from the vehicle while holding a firearm; ultimately was taken
into custody; and a firearm was located near him.
And then separate from that encounter, I had heard his name
at the station when another officer had arrested him for eluding.
And so his name was fresh in my mind from his most recent arrest
at the time.
I engaged him in conversation regarding those events, and I
asked him if he had a firearm. His eye contact -- He broke eye
contact with me and started to overexplain how he was a passenger
in a vehicle and tried to distance himself from the vehicle when
obviously I could tell that he was a passenger in a vehicle, and it
was clear he was not associated with the driver because he was
sitting in the back seat by himself.
I asked him to step out because I was going to conduct a Terry
pat; and at that time his demeanor, which was friendly to this point,
I observed his fight or flight response to be activated. And it wasn't
4The State also charged Price-Williams with possession of a controlled substance in
violation of Iowa Code section 124.401(5), a serious misdemeanor, after the arresting officers
discovered marijuana in Price-Williams’s backpack in the Lyft vehicle. However, the State later
dropped this charge following a suppression hearing on that evidence.
8
the fight or flight response, it was the freezing in time where he was
attempting to decide what was going to happen next or figure out
what was going to happen next.
I advised him not to reach because, at that point, I was more
aware of his possibility of being armed, and I drew my firearm
because I was so concerned. . . . I motioned for Officer Buck to assist
me in doing so; and then [Price-Williams] was taken into custody,
and a firearm was located in his front left jacket pocket.
Officer Holtan clarified that it was Price-Williams’s change in demeanor
and his previous history with Price-Williams that led him to draw his firearm
“[f]or [his] safety” because he “felt [Price-Williams] was armed.” He also stated he
would have continued to perform the Terry pat even if Price-Williams had told
Officer Buck he did not have a weapon and that he felt the weapon on Price-
Williams as he was patting him down.
Following the hearing, the district court denied Price-Williams’s motion to
suppress as it pertained to the officers’ discovery of the firearm and his
statements about the firearm. The district court explained,
It was reasonable for Officer Holtan to believe that defendant may
be armed and dangerous based upon his previous encounter with
the defendant and his action of moving his hand(s) towards his
pocket. The patdown that occurred when defendant exited the car
was lawful particularly when defendant admitted prior to the
patdown he had a gun in his pocket.
Price-Williams waived his right to a jury trial and agreed to a trial on the
minutes of testimony. The district court found Price-Williams guilty of being a
felon in possession of a firearm in violation of Iowa Code section 724.26 and
sentenced him to five years imprisonment consecutive to the sentences he is
serving for probation violations that are not a part of this case. Price-Williams
filed a timely notice of appeal concerning the district court’s denial of his motion
9
to suppress, and we transferred the case to the court of appeals, which affirmed
the district court ruling and Price-Williams’s conviction. Price-Williams filed an
application for further review, and we granted that application.
II. Standard of Review.
“When a defendant challenges a district court’s denial of a motion to
suppress based upon the deprivation of a state or federal constitutional right,
our standard of review is de novo.” State v. Brown, 930 N.W.2d 840, 844 (Iowa
2019) (quoting State v. Brown, 890 N.W.2d 315, 321 (Iowa 2017)). Our review is
also de novo when a defendant “alleges the district court improperly refused to
suppress statements made in violation of his Miranda rights.” State v. Miranda,
672 N.W.2d 753, 758 (Iowa 2003). We examine the entire record to independently
evaluate the totality of the circumstances based on each case’s unique situation.
Brown, 930 N.W.2d at 844. Further, “[w]e give deference to the district court’s
fact findings due to its opportunity to assess the credibility of the witnesses, but
we are not bound by those findings.” Brown, 890 N.W.2d at 321 (quoting In re
Prop. Seized from Pardee, 872 N.W.2d 384, 390 (Iowa 2015)).
III. Analysis.
Price-Williams presents two challenges on appeal. First, he maintains the
district court erred in denying his motion to suppress the evidence obtained from
the officers’ warrantless search and seizure because the officers lacked
reasonable suspicion to search his person. Second, Price-Williams contends the
officers subjected him to custodial interrogation by questioning him about his
possession of a firearm without first providing a Miranda warning about his right
10
against self-incrimination, so the district court should have granted his motion
to suppress his admission to firearm possession.
A. Law Enforcement’s Authority to Search and Seize Motor Vehicle
Passengers. The parties agree that Officer Buck’s initial stop of the vehicle was
valid and the temporary detainment of the vehicle’s occupants was a seizure
under article I, section 8 of the Iowa Constitution and the Fourth Amendment to
the United States Constitution. See, e.g., State v. Warren, 955 N.W.2d 848, 859
(Iowa 2021) (“The ‘[t]emporary detention of individuals during the stop of an
automobile by the police, even if only for a brief period and for a limited purpose,
constitutes a “seizure” of “persons” within the meaning of’ the Fourth
Amendment.” (alteration in original) (quoting Whren v. United States, 517 U.S.
806, 809–10 (1996))). The parties’ disagreement lies in their interpretation of
article I, section 8 of the Iowa Constitution. The State argues that a law
enforcement officer may order a passenger out of a legally stopped vehicle
without reasonable suspicion, relying on Maryland v. Wilson, 519 U.S. 408,
414–15 (1997). Price-Williams seeks a broader interpretation that requires
“reasonable suspicion that criminal activity is afoot or that a passenger is armed
and dangerous . . . before an officer can order a passenger out of a vehicle.”
In arguing for departure, Price-Williams relies on our now-overruled
precedent in State v. Becker, in which we held law enforcement could not order
passengers out of the vehicle under the Fourth Amendment unless there was
“articulable suspicion of wrongdoing on [the passenger’s] part or any need to
move him in order to facilitate arrest of the driver or search of the vehicle.” 458
11
N.W.2d 604, 607–08 (Iowa 1990); see State v. Smith, 683 N.W.2d 542, 545 (Iowa
2004) (“Wilson, therefore, overruled Becker sub silentio as far as its reliance on
the Fourth Amendment.”). We need not address Price-Williams’s request for us
to depart from federal precedent and adopt the heightened standard articulated
in Becker under the Iowa Constitution because Officer Holtan had reasonable
suspicion to order Price-Williams out of the vehicle. Thus, Price-Williams’s
motion to suppress fails even under the heightened Becker standard he requests.
An officer may expand a reasonable investigation “to satisfy suspicions of
criminal activity unrelated to the traffic infraction” during a traffic stop by
ordering the passenger out of the vehicle if the officer identifies “ ‘specific and
articulable facts which, taken together with rational inferences from those facts,’
amount to reasonable suspicion that further investigation is warranted.” Warren,
955 N.W.2d at 866 (quoting State v. Salcedo, 935 N.W.2d 572, 578 (Iowa 2019)).
Officers need not
rule out all possibility of innocent behavior . . . [because] [t]he test
is founded suspicion . . . . Even if it was equally probable that the
vehicle or its occupants were innocent of any wrongdoing, police
officers must be permitted to act before their reasonable belief is
verified by escape or fruition of the harm it was their duty to prevent.
State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002) (second omission in original)
(quoting United States v. Holland, 510 F.2d 453, 455 (9th Cir. 1975)). “[A]n officer
may [also] make a protective, warrantless search of a person when the officer,
pointing to specific and articulable facts, reasonably believes under all the
circumstances that the suspicious person presents a danger to the officer or to
others.” State v. Riley, 501 N.W.2d 487, 489 (Iowa 1993) (discussing Terry pat-
12
downs). “We evaluate the existence of reasonable suspicion based on the totality
of circumstances confronted by the officer.” Salcedo, 935 N.W.2d at 578.
An officer may have reasonable suspicion to order a passenger out of the
vehicle based on a combination of the officer’s past experience with the passenger
and the passenger’s failure to provide identification upon request, furtive
movements, and “nervousness, evasiveness or lying.” State v. Bergmann, 633
N.W.2d 328, 333 (Iowa 2001); see also Riley, 501 N.W.2d at 489. For example,
in State v. Riley, an officer stopped the driver because he allegedly was not
wearing his seat belt, but the officer decided to talk with the passenger because
the officer recognized the passenger “but could not place him” and “[i]t later
developed that [the officer] had arrested [the passenger] on a prior occasion.” 501
N.W.2d at 487–88. As the officer was approaching the passenger side, the
passenger made furtive movements that led the officer to believe the passenger
had placed something under his seat and prompted the officer to ask the
passenger out of the car so the officer could search under the passenger seat. Id.
at 488. We concluded the officer had reasonable suspicion to support ordering
the passenger out of the vehicle to search under the passenger seat based on the
passenger’s furtive movements and failure to provide identification to the officer.
Id. at 489.
Similarly, in State v. Bergmann, we noted an officer may have reasonable
suspicion to warrant a pat-down based on the defendant’s presence in a known
narcotics-dealing area “coupled with other factors like flight upon seeing police,
nervousness, evasiveness or lying, past experience with the suspect, etc.” 633
13
N.W.2d at 333. There, the officer observed the defendant parked in an alleyway
in “an area notorious for drug activity” with “a well-known narcotics dealer . . .
standing next to the passenger side of the car.” Id. at 330. The drug dealer
immediately left upon noticing the officer and the defendant began to drive away,
at which point the officer noticed the defendant’s license plate light was not lit
and decided to pull him over. Id. Upon making contact with the defendant, the
officer recognized him from an arrest he made a few years prior involving
possession of a handgun and marijuana. Id. The officer asked the defendant to
step out of the car to show him the unlit license plate, and the officer noticed the
defendant “was acting anxious and impatient.” Id. The defendant declined to give
consent to search the vehicle, so the officer called the canine unit. Id. at 330–31.
While the officer waited for the unit to arrive, he patted down the defendant
for weapons and looked under the driver's seat for a weapon, which is where he
had found a weapon in his prior arrest of the defendant, but the officer found
nothing. Id. at 331. The canine unit arrived “within minutes,” and the dog
indicated it smelled a controlled substance inside the vehicle, leading the officers
to search the entire vehicle and find marijuana in it. Id. Our court determined
the officer had reasonable suspicion to pat-down the defendant for weapons
based on the defendant’s presence in a known drug area alongside a drug dealer
coupled with the defendant’s flight upon seeing the police when he was parked,
his nervousness, evasiveness, and the officer’s past experience with the
defendant. Id. at 333. We also held the officer was “justified in looking under [the
defendant’s] seat for a weapon given his past experience with [the defendant.].”
14
Id. Riley and Bergmann are instructive and lead us to conclude Officer Holtan
had reasonable suspicion to order Price-Williams out of the vehicle.
To set the scene, Officer Holtan arrived at the beginning of the traffic stop
as Officer Buck was obtaining information from the vehicle’s occupants in the
dark, late at night. Upon hearing Price-Williams identify himself, Officer Holtan
recognized his name from a prior encounter that occurred fourteen months
earlier in which Price-Williams attempted to elude Officer Holtan by running from
the vehicle while holding a firearm during a traffic stop for a minor offense. He
also recognized Price-Williams’s name from another officer who told him about
Price-Williams’s more recent arrest for eluding.
As Officer Buck was checking for outstanding warrants on the vehicle’s
occupants, Officer Holtan engaged in conversation with Price-Williams. When
Officer Holtan asked Price-Williams about an eluding incident for speeding that
past November and whether he had a firearm, Price-Williams became nervous,
breaking eye contact with Officer Holtan and trying to eliminate his responsibility
for the traffic stop by talking about how he was just going to visit his child and
was “just a passenger,” even attempting to get Officer Holtan to talk to the mother
of Price-Williams’s child on the phone. It was at this point that Officer Holtan
told Price-Williams to step out of the vehicle. In light of Officer Holtan’s past
experience with Price-Williams involving eluding and firearm possession during
a traffic stop, Officer Holtan’s specific knowledge of Price-Williams’s criminal
history, the diminished visibility because the stop was at night in the dark, and
15
Price-Williams’s nervous demeanor, Officer Holtan had reasonable suspicion to
order Price-Williams out of the vehicle.
These same circumstances justified Officer Holtan’s pat-down search of
Price-Williams. To justify a pat-down of a passenger “during a [lawful] traffic
stop, . . . the police must harbor reasonable suspicion that the person subjected
to the frisk is armed and dangerous.” Arizona v. Johnson, 555 U.S. 323, 327
(2009). Citing legislative changes making it easier to carry concealed weapons in
Iowa and the increase in the number of American adults holding concealed
firearm permits between 1999 and 2016, Price-Williams maintains that “the
mere presence of a firearm on a person [should not] be equated with inherent
dangerousness.” We need not address whether the mere presence of a firearm
on a person equates to inherent dangerousness because the circumstances that
amounted to reasonable suspicion in this case exceed mere firearm possession,
especially in light of Price-Williams’s specific criminal history involving eluding
while holding a firearm during a traffic stop with the same officer in the past. For
the reasons discussed above, Officer Holtan had reasonable suspicion that Price-
Williams was armed and dangerous to support the Terry pat-down under both
the Iowa Constitution and the United States Constitution.
B. Price-Williams’s Admission to Possession of a Firearm. Price-
Williams claims the district court erred in denying his motion to suppress his
admission to possessing a firearm when Officer Buck asked him about firearms
during the Terry pat-down, asserting the admission stemmed from custodial
interrogation without first being read his Miranda rights. In its brief, the State
16
confirmed it was “not separately rely[ing] on [Price-]Williams’[s] admission in
support of the weapons pat-down.” In any case, Officer Holtan had already begun
to pat-down Price-Williams to locate and retrieve the firearm that he suspected
Price-Williams had in his possession before the admission occurred and Officer
Holtan had reasonable suspicion to suspect Price-Williams was armed and
dangerous before Price-Williams made the admission. Consequently, we affirm
the district court’s denial of his motion to suppress the evidence of his admission
and his subsequent conviction.
IV. Conclusion.
We affirm the district court’s denial of Price-Williams’s motion to suppress
and Price-Williams’s conviction for the aforementioned reasons.
DECISION OF COURT OF APPEALS AND DISTRICT COURT JUDGMENT
AFFIRMED.
Waterman, Mansfield, McDonald, Oxley, and McDermott, JJ., join this
opinion. Appel, J., files a dissenting opinion.
17
#19–1857, State v. Price-Williams
APPEL, Justice (dissenting).
I. Introduction.
From the early days of the republic, the fundamental principle of
constitutionally based search and seizure law is that law enforcement authorities
simply cannot have broad and unbridled discretion to indiscriminatorily search
and seize persons on the streets of this country.
There simply can be no doubt, as a matter of historical truth, that the
federal and Iowa constitutional founders viewed search and seizure as
restrictions on the exercise of government power, instead of an authority on
broad searches based upon subjective hunches.5 James Otis, the founding father
of the Fourth Amendment, responding to the broad and unparticularized search
and seizure powers in the famous “Writs of Assistance Case” in 1761, complained
about the writ’s “arbitrary power” that could transform officers into tyrants who
could lord over colonists, and “place[d] the liberty of every man in the hands of
every petty officer.”6 The founders not only appreciated the potential lack of
5For instance, see Thomas Y. Davies, Can You Handle the Truth? The Framers Preserved
Common-Law Criminal Arrest and Search Rules in “Due Process of Law”—“Fourth Amendment
Reasonableness” Is Only a Modern, Destructive, Judicial Myth, 43 Tex. Tech. L. Rev. 51, 55 (2010)
(describing a general warrant as “unparticularized as to the place or things to be searched for or
. . . lack[s] specific factual grounds justifying the search”).
6Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 580–
81 (1999) [hereinafter Davies, Recovering the Original Fourth Amendment] (quoting 2 Legal Papers
of John Adams 140–43 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965)).
18
fairness in the discretionary application of state power, but they fully believed
that if such arbitrary power is granted, it will ultimately be exercised.7
From its inception, search and seizure law generally required that
articulable and particularized facts be established to demonstrate certain
individuals have been engaged in criminal enterprise before the awesome
government machinery searches and seizes persons and their property.
Conversely, categorical, general policy or programmatic judgments are anathema
to search and seizure’s constitutional values. Broad and unregulated authority
to engage in stops and pat-downs by armed police on the open road may be “a
long step down the totalitarian path,” as Justice Douglas observed long ago.8
Such authority was by no means part of the vision of the founders of either the
Iowa or United States Constitution. A leading scholar, Tracey Maclin, has
observed “the central meaning of the Fourth Amendment is distrust of police
power and discretion.”9 Similarly, Professor Amsterdam noted that the Fourth
Amendment opposes searches and seizures “conducted at the discretion of
executive officials, who may act despotically and capriciously in the exercise of
the power to search and seize. This . . . concern runs against arbitrary searches
and seizures: it condemns the petty tyranny of unregulated rummagers.”10
7Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349,
366 (1974) [hereinafter Amsterdam].
8Terry v. Ohio, 392 U.S. 1, 38 (1968) (Douglas, J., dissenting).
9Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev.
197, 201 (1993); see also Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. at
582 (noting the framers’ “deep-rooted distrust and even distain for the judgment of ordinary
officers”).
10Amsterdam, 58 Minn. L. Rev. at 411.
19
Of course, one of the main historic purposes of search and seizure law is
to protect the privacy of the individual. In our constitutional scheme, the
individual has the right to make a wide range of choices free from government
intrusion. In other words, the search and seizure protections are designed to
protect, in the trenchant words of Justice Brandeis, the individual’s “right to be
let alone.”11 Central to our constitutional structure is the important protection
of the individual to be free from government interference, which is usually
packaged in the language of individual rights or civil liberties.
There is, however, a second purpose of search and seizure law, albeit less
heralded in some quarters. That purpose is to prevent government authorities
from engaging in arbitrary or discriminatory enforcement against unfavored
groups of people. The Tudors and Stuarts used general warrants in a
programmatic way to deal with political opposition, allowing its bearer to arrest,
search, and seize at his discretion. The Wilkes cases in the 1760s demonstrated
that if left unfettered, government authorities would use generalized search
power as a tool against political opponents. Therefore, historically, search and
seizure law was motivated not simply to protect individual rights, but also to
ensure that disfavored groups are not singled out through indiscriminate
application of government power.12
11Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting), overruled
by Katz v. United States, 389 U.S. 347 (1967), and Berger v. New York, 388 U.S. 41 (1967).
12For a summary of the history, see Laura K. Donohue, The Original Fourth Amendment,
83 U. Chi. L. Rev. 1181, 1207–21 (2016).
20
Thus, as Andrew Taslitz has shown, there is a connection between First
and Fourth Amendment principles.13 Whenever government officials claim the
power to search and seize large groups of people with broad general
characteristics that may be consistent with innocence, the principles of the
search and seizure law provide a bulwark to limit and control the exercise of
otherwise unfettered discretion.
The implications of search and seizure principles to African-Americans has
been an issue of historical importance. In 1823, the Massachusetts Supreme
Judicial Court ruled in Commonwealth v. Griffith that the 1793 version of the
Fugitive Slave Act violated search and seizure principles.14 Samuel Chase, a
leading antislavery lawyer, argued that in the widely reported “Matilda” case that
the Fugitive Slave Act was unconstitutional because of its broad and
indiscriminate application to African-Americans.15
The implication of search and seizure principles in the context of racial
equality was recognized early on in Iowa in the case of Webb v. Griffith.16 In this
case, an African-American residing in Iowa was arrested for alleged violation of
an 1851 exclusion law.17 Judge John Henry Gray struck down the law as
13Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and
Seizure, 1789–1868, at 88–89 (2006) [hereinafter Taslitz, Reconstructing the Fourth Amendment].
14Commonwealth v. Griffith, 19 Mass. (2 Pick.) 11 (1823); see also William M. Wiecek, The
Sources of Antislavery Constitutionalism in America, 1760–1848, at 193 (1977) [hereinafter
Wiecek].
15Wiecek at 193.
16Nathan E. Coffin, The Case of Archie P. Webb, A Free Negro, in 11 Annals of Iowa 200,
200–02 (1913) [hereinafter Coffin].
17Id.
21
violating the search and seizure provisions of the Iowa Constitution.18 No blanket
interdiction of African-Americans was legal, according to Judge Gray.19 In the
Webb case, Judge Gray recognized what antislavery lawyers had been pressing
for years—namely, that the seizure of African-Americans based upon race
violated search and seizure principles.20 The principle of equality helped define
arbitrary government conduct.
Of course, the United States Supreme Court had views on the Fourth
Amendment quite different from Judge Gray’s approach to the search and
seizure provision of the Iowa Constitution. The United States Supreme Court six
years after Iowa’s Webb case, announced in Dred Scott v. Sanford that African-
Americans had “no rights which the white man was bound to respect.”21 In short,
the Court hung a “whites only” sign onto the majestic sculpture of the Fourth
Amendment. According to the United States Supreme Court (but notably not the
Iowa courts), search and seizure restrictions applied when a person of German,
Dutch, or Norwegian ancestry was seized, but not to African-Americans.
But the “whites only” sign originally hung on the Fourth Amendment by
the United States Supreme Court was, one would have thought, taken down by
the people. The enactment of the Fourteenth Amendment, with its promise of
equal protection, provided a new lens for viewing federal search and seizure
18Id.
19Id.;
see also Robert R. Dykstra, Bright Radical Star: Black Freedom and White Supremacy
on the Hawkeye Frontier 198–200 (1993).
20Coffin at 204–14.
21Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 407 (1857), superseded by constitutional
amendment, U.S. Const. amend. XIV.
22
law.22 History, however, plays its tricks. In the aftermath of the Civil War,
particularly, but not exclusively, in former slave states, the swollen ranks of
police forces enforced vague vagrancy laws to ensure a racial social order and
provide a basis for seizure and control of African-Americans.
Modern scholars and some courts have examined the interplay between
search and seizure and equal protection principles. Although the United States
Supreme Court in Whren v. United States23 sought to lobotomize our collective
legal brain by drawing a sharp distinction between search and seizure principles
and equal protection, that constitutional surgery has come under substantial
criticism in academia and state courts and, as will be seen, is in my view
indefensible.24
The limitations imposed by search and seizure law were thus designed not
only to protect individual rights, but also to perform the important prophylactic
purpose of preventing programmatic oppression of disfavored groups. As noted
22See Taslitz, Reconstructing the Fourth Amendment at 106–21 (2006) (arguing that the
Fourteenth Amendment impacted the meaning of constitutional rules regarding search and
seizure); I. Bennett Capers, Policing, Race, and Place, 44 Harv. C.R.-C.L. L. Rev. 43, 74 (2009).
23Whren v. United States, 517 U.S. 806, 813 (1996).
24See State v. Brown, 930 N.W.2d 840, 871–928 (2019) (Appel, J., dissenting). At the risk
of over-simplification, I generally subscribe to what Herbert Packer called the due process model
of criminal procedure rooted in a complex of values that includes equality and
antiauthoritarianism. See Herbert L. Packer, Two Models of the Criminal Process, 113 U. Pa. L.
Rev. 1, 16–18 (1964). While some (but not all) of the opinions of this court in the search and
seizure area focus too much on what I call rights restricting radical pragmatism, we should not
shy away from our historic commitments to controlling government discretion and protecting
individual rights simply because there is a more efficient approach available that affirms a
conviction. See, e.g., State v. Kilby, 961 N.W.2d 374, 383 (Iowa 2021) (permitting prosecution to
comment where motorist exercises right against self-incrimination by refusing to take a breath
test); State v. McGee, 959 N.W.2d 432, 439 (Iowa 2021) (“almost always” permitting warrantless
searches of unconscious persons involved in traffic accidents); Brown, 930 N.W.2d at 895
(refusing to regulate pretextual searches for common traffic violations to advance the “war on
drugs”).
23
by Professor Amsterdam, the framers recognized that “one evil of the existence
of arbitrary power is the inevitability of its discriminatory exercise.”25 Judges
should ask, in every search and seizure case, whether the framework and
principles developed by courts advance or undermine the constitutional goal of
avoiding arbitrary enforcement against disfavored groups that the framers
thought would inevitably occur as a result of broad official discretion.
I now briefly turn to methods. Because of the compelling need to control
government power of search and seizure, the Fourth Amendment to the United
States Constitution and article I, section 8 of the Iowa Constitution rely heavily
upon the probable cause requirement and the warrant requirement.
Probable cause requires that before a search warrant is issued the
government establish—with particularity—the basis for proposed government
action.26 General discretionary authority to conduct a search or seize a person
was among the historical abuses that the particularity requirements in search
and seizure law were designed to prevent.
The requirement that a warrant be sought from a detached and neutral
magistrate represents a decided judgment of the founders that authority to
determine whether a search or seizure of persons or property is required
ordinarily rests with a judge and not with the persons engaged in the search or
seizure. Search and seizure provisions of both the Iowa and United States
25Amsterdam, 58 Minn. L. Rev. at 366.
26See generally Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the
Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483 (1995).
24
Constitutions are thus quite explicit in this regard—judges, and not police
officers, make the call. As noted by one scholar, the framers had “deep-rooted
distrust and even disdain for the judgment of ordinary officers.”27 As declared in
the first major search and seizure case decided by the United States Supreme
Court, “It is the duty of courts to be watchful for the constitutional rights of the
citizen, and against any stealthy encroachments thereon. Their motto should be
obsta principiis [(resist the beginnings)].”28 In a classic statement, the United
States Supreme Court declared in Coolidge v. New Hampshire that:
[T]he most basic constitutional rule in this area is that “searches
conducted outside the judicial process, without prior approval by
judge or magistrate, are per se unreasonable . . . .” The exceptions
are “jealously and carefully drawn,” and there must be “a showing
by those who seek exemption . . . that the exigencies of the situation
made that course imperative.”29
And, in Johnson v United States, it was stated that “[w]hen the right of privacy
must reasonably yield to the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or government enforcement agent.”30
By imposing a warrant requirement, the founders recognized what we
would call today the possibility of hindsight bias. The structure of requiring a
warrant before the fact prevents post hoc rationalizations of the basis for the
27Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. at 582.
28Boyd v. United States, 116 U.S. 616, 635 (1886); see also Wayne R. LaFave, The
Forgotten Motto of Obsta Principiis in Fourth Amendment Jurisprudence, 28 Ariz. L. Rev. 291(1986) [hereinafter LaFave, The Forgotten Motto].
29Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (second omission in original)
(footnotes omitted) (first quoting Katz, 389 U.S. at 357; then quoting Jones v. United States, 357
U.S. 493, 499 (1971); and then quoting McDonald v. United States, 335 U.S. 451, 456 (1948)).
30Johnson v. United States, 333 U.S. 10, 14 (1948).
25
search, and permit the court to “prevent hindsight from coloring the evaluation
of the reasonableness of a search or seizure.”31
In this case, we deal with an innovative and historically strange exception
to the warrant requirement first discovered by the United States Supreme Court
more than 150 years after the founding in Terry v. Ohio.32 In Terry, the United
States Supreme Court found a narrow exception to the traditional warrant and
probable cause requirements in situations where police had articulable and
particular facts suggesting that a citizen was “armed and dangerous.”33 The Terry
decision, to put it mildly, was highly controversial at the time and is currently
faced with calls in some quarters for revision.34
Kha Price-Williams does not challenge the central holdings in Terry in this
case under article I, section 8 of the Iowa Constitution. Price-Williams does not
challenge the general proposition that warrantless stop-and-frisk actions by
police may be justified upon a showing of less than probable cause, namely
reasonable suspicion. As a result, we have no occasion to revisit the Terry
doctrine as has been urged by some commentators. In light of the advocacy, we
therefore apply the general standards of Terry to this case. In so doing, we may
31United States v. Martinez-Fuerte, 428 U.S. 543, 565 (1976); see also Beck v. Ohio, 379
U.S. 89, 96 (1964).
32Terry, 392 U.S. 1 (majority opinion).
33Id. at 27.
34See, e.g., David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means
Stopped and Frisked, 69 Ind. L.J. 659, 682–87 (1994) [hereinafter Harris, Factors for Reasonable
Suspicion] (calling for abandonment of Terry or at least its recalibration); L. Song Richardson,
Cognitive Bias, Police Character, and the Fourth Amendment, 44 Ariz. St. L.J. 267, 287–93 (2012)
[hereinafter Richardson, Cognitive Bias] (recommending consideration of hit rates, enhanced
articulation, and limiting consideration of race and racial proxies).
26
apply the general Terry standards in a fashion different than federal
precedents.35
Nonetheless, in construing and applying exceptions to the warrant
requirement, we should not lose sight of the basic purposes of search and seizure
law, measuring both the impact on individual liberty and the goal of preventing
arbitrary and capricious exercise of government power on disfavored groups. As
understood by the framers, “ ‘unreasonable searches and seizures’ included any
type of general search, whether by warrant or not.”36
Not surprisingly, there is a tendency in law enforcement to constantly
push the search and seizure envelope from its historic roots to expand police
authority and avoid the constitutionally based regulatory regime that search and
seizure law demands. In Terry, Justice Douglas in dissent presciently predicted
that one of the dangers of the new “reasonable suspicion” standard was that it
would be subject to the “hydraulic pressures” of the demands of law enforcement
and, over time, would be subject to serious erosion.37 Thirty years later,
distinguished commentators noted that “pressure from those who do not favor
the Fourth Amendment is endemic.”38 It is our job to see that the hydraulic
35See,e.g., State v. McNeal, 867 N.W.2d 91, 99 n.1 (Iowa 2015); State v. Edouard, 854
N.W.2d 421, 452–53 (Iowa 2014) (Appel, J., concurring specially); State v. Tyler, 830 N.W.2d 288,
291–92 (Iowa 2013); State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).
36George C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees
the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1467 (2005).
37Terry, 392 U.S. at 37–39 (Douglas, J., dissenting).
38Jack B. Weinstein & Mae C. Quinn, Terry, Race, and Judicial Integrity: The Court and
Suppression During the War on Drugs, 72 St. John’s L. Rev. 1323, 1324 (1998); see also Erik
Luna, Drug Exceptionalism, 47 Vill. L. Rev. 753, 759–61 (2002) (noticing that reasonableness has
been used to constrict Fourth Amendment rights rather than expand them in drug related cases).
27
pressures cannot overcome the constitutional requirements of search and
seizure law.
Finally, with respect to methods, it should be recognized that there is a
temptation to reason backward in search and seizure cases where incriminating
evidence is found.39 It is important in search and seizure cases that we not
engage in such backward reasoning. “[T]here is nothing new in the realization
that the Constitution sometimes insulates the criminality of a few in order to
protect the privacy of us all.”40 As Justice Frankfurter memorably observed, civil
liberties tend to be invoked by “not very nice people.”41
Finally, there are four recent developments that require careful
consideration in our discussion of search and seizure issues today.
First, we should give careful consideration to the dramatic increase in gun
ownership in the United States and the abandonment of regulation of firearms
by many states. The proliferation of guns may make some smile and others cry.
One’s view on the proliferation of guns in our society is beside the point for
purposes of search and seizure law. The point is that the number of persons
carrying weapons has grown exponentially in recent years. According to one
39See
United States v. Hussain, 835 F.3d 307, 309 (2d Cir. 2016) (“Appeals based on the
Fourth Amendment from denied motions to suppress . . . are often difficult because the
Government is in a sense proven right.”).
40Arizona v. Hicks, 480 U.S. 321, 329 (1987). For a discussion of hindsight bias, see
Bernard Chao et al., Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology, 106
Calif. L. Rev. 263, 279–86 (2018) (noting that hindsight bias and outcome bias can impact
decision-making by courts); William J. Stuntz, Warrants and the Fourth Amendment Remedies,
77 Va. L. Rev. 881, 911–13 (1991).
41United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting),
overruled in part by Chimel v. California, 395 U.S. 752 (1969).
28
study, it is estimated that three million people carry loaded handguns on a daily
basis.42 Many states, including Iowa, have enacted statutes deregulating
carrying of concealed weapons.43 The question arises whether a stop-and-frisk
based on suspected carrying of a firearm can be sustained because it amounts
to a general warrant based not on particular facts but involving a broad group of
people engaging in lawful conduct. In other words, has widespread proliferation
of weapons destroyed the particularity required to support government search
and seizure?
Second, there has been a dramatic increase in recent years in our
knowledge about implicit racial bias.44 In addition, in a roughly parallel
development, there has been a growing body of empirical studies of racial
disproportionality in traffic stops.45 I do not subscribe to the view that our
constitutional law should waiver with each new empirical study or well-written
42Ali Rowhani-Rahbar et al., Loaded Handgun Carrying Among US Adults, 2015, 107 Am.
J. Pub. Health 1930, 1935 (2017).
43See Iowa Code § 724.7(1) (2019).
44E.g. State v. Williams, 929 N.W.2d 621, 638–39 (Iowa 2019) (Wiggins, J., concurring in
part and dissenting in part) (providing statistics showing Iowa was one of the worst states in the
nation regarding racial disparity in imprisonment and such disparate treatment is due to implicit
racial bias; listing studies on how implicit biases are held deep in the subconscious in various
contexts).
45E.g. Brown, 930 N.W.2d at 864–65 (Cady, C.J., dissenting) (citing articles discussing
how Whren has been widely criticized as legalizing racial profiling in the context of traffic stops);
David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and
Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 550–53 (1997) (noting the Whren Court
downplayed the argument that police could make pretexual traffic stops against minorities);
Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev.
1413, 1421–33 (2013) (noting that Whren “solidified a trend in United States jurisprudence
toward ignoring police officers’ racial biases, admitted or otherwise” and concluding the only
workable solution to pretextual traffic stops is through a reconsideration of Whren); Wayne R.
LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not Enough Fourth
Amendment, 102 Mich. L. Rev. 1843, 1860–61 (2004) (discussing the difficulties of an equal
protection challenge to selective enforcement of traffic laws).
29
article appearing in a social science journal. Yet, I do insist that when our
knowledge of social science and empirical studies reach a turning point
demonstrating reliability, we should consider the new information as we seek to
develop our search and seizure law.
Third, we should consider realities on today’s streets. As noted in Terry so
many years ago, minority communities often feel the sting of what they consider
harassment by police.46 Further, it has become apparent that escalation arising
out of traffic stops has ended in the death of too many people, often members of
minority groups.47 We should at least ask the question: does our search and
seizure law encourage the safety of both police and persons in a traffic stop, or,
does it increase the danger to everyone involved? If so, is the increased danger a
question of constitutional significance?
Fourth, technology is now available to assist courts in review of traffic
stops. When Terry was decided, dashcams and bodycams were not in widespread
use, but today they are utilized as a matter of routine. The availability of this
evidence allows police, the suspect, and the courts to better consider whether
there are “articulate” and “particularized” facts that support a Terry stop.
In this case involving a warrantless pat-down arising from a traffic stop, I
approach the matter with the constitutionally required skepticism, put the State
46Terry, 392 U.S. at 14–15 (majority opinion).
47Wesley Lowery, A Disproportionate Number of Black Victims in Fatal Traffic Stops, Wash.
Post, Dec. 24, 2015, https://www.washingtonpost.com/national/a-disproportionate-number-
of-black-victims-in-fatal-traffic-stops/2015/12/24/c29717e2-a344-11e5-9c4e-be37f66848bb_
story.html [https://perma.cc/8M4C-EXUC].
30
to its burden of proof, and examine the record to ensure that the warrantless
search is adequately supported based on particularized facts, not weak or
generalized reasoning. In the analysis, I consider the recent developments in the
constitutional and statutory law related to owning and carrying guns, our
increased knowledge of implicit bias and race discrimination in traffic stops, and
questions about the safety of police and citizens in the context of traffic stops.
II. Stop-and-Frisk under Terry v. Ohio.
A. General Framework. In the seminal and highly controversial Terry
case, the United States Supreme Court considered a case in which police
conducted an unwarranted pat-down search for weapons on a person outside a
store that the officer thought was being cased for a potential robbery.48 In Terry,
the United States Supreme Court announced a two-part standard for stop-and-
frisk.49 First, the person may be seized for a brief stop upon reasonable suspicion
that the suspect is involved or about to be involved in criminal activity.50 Second,
the outer clothing may be frisked if the officer “has reason to believe that he is
dealing with an armed and dangerous individual.”51 Ample post-Terry caselaw
48Terry, 392 U.S. at 4–8. For critics of Terry, see Tracey Maclin, Terry v. Ohio’s Fourth
Amendment Legacy: Black Men and Police Discretion, 72 St. John’s L. Rev. 1271, 1286 (1998);
Josephine Ross, Warning: Stop-and-Frisk May Be Hazardous to Your Health, 25 Wm. & Mary Bill
Rts. J. 689, 732 (2016) [hereinafter Ross].
49Terry, 392 U.S. at 27–31.
50Id. at 30.
51Id. at 27.
31
supports the notion that there must be reasonable suspicion that criminal
activity is afoot before the individual is subject to a protective frisk for weapons.52
The approach in the Terry case was designed to be something of a
compromise. It extended search and seizure protections to pat-down searches
and roadside stops.53 Yet, it permitted an exception to the warrant requirement
and the requirement of probable cause.54 The Terry opinion, however, stressed
that the exception was “narrowly drawn”55 and that objective facts drove the
analysis.56 Under Terry, police must have articulate and particularized facts to
support the search: inchoate hunches are simply not good enough.57 Further,
the Terry case recognized the constitutional interests of citizens, noting that even
a limited search of outer clothing “constitutes a severe, though brief, intrusion
upon cherished personal security.”58 And finally, the Terry Court recognized the
potential negative reactions of African-Americans to what may be perceived as
harassment and discriminatory enforcement.59 Such potential resentment was
to be among the factors to be considered in evaluating the constitutionality of
police conduct.60
52E.g.United States v. Massenburg, 654 F.3d 480, 485 (4th Cir. 2011); Gomez v. United
States, 597 A.2d 884, 890–91 (D.C. 1991); In re Ilono H., 113 P.3d 696, 700 (Ariz. Ct. App. 2005).
53Terry, 392 U.S. at 17–20.
54Id. at 27.
55Id.
56Id. at 20–22.
57Id. at 22.
58Id. at 24–25.
59Id. at 14 n.11.
60Id. at 17.
32
In the cases since Terry was decided, however, the “narrow” doctrine has
been, much as Justice Douglas predicted, under substantial pressure from law
enforcement to stretch it far beyond its original confines. For instance, the United
States Supreme Court in Arizona v. Johnson held that a traffic stop may be made
in the absence of criminal activity.61 Similarly, in Whren the Court held that any
traffic violation, however minor, provides sufficient basis for a traffic stop from
which could become the first step in a series of events leading to a Terry search.62
Remarkably, a stop was lawful even if the stated reason of a minor traffic
violation was pretextual.63 And, the Court in Heien v. North Carolina held that a
Terry search could be based on reasonable suspicion even if premised on mistake
of law,64 a proposition rejected by this court.65 Then, in Illinois v. Wardlow, the
Court held that mere presence in a high crime neighborhood or flight from an
officer, standing alone, did not establish reasonable suspicion, but a
combination of them was sufficient.66 Finally, in Utah v. Strieff, the Court
permitted a search based upon an outstanding warrant that officers were not
aware existed at the time of the search.67
Further, many of the stop-and-frisk cases after Terry seem to have
loosened the constitutional moorings. For example, the United States Supreme
61Arizona v. Johnson, 555 U.S. 323, 327, 330 (2009).
62Whren, 517 U.S. at 818.
63Id. at 814–16.
64Heien v. North Carolina, 574 U.S. 54, 60 (2014).
65State v. Scheffert, 910 N.W.2d 577, 585 n.2 (Iowa 2018).
66Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000).
67Utah v. Strieff, 579 U.S. 232, 239 (2016).
33
Court has vaguely emphasized that courts consider “the whole picture” rather
than specific facts,68 that meeting the general standards of a drug courier profile
may give rise to individualized suspicion,69 and that flight from officers may in
some conditions support a finding of reasonableness sufficient to support a stop-
and-frisk.70
This kind of slippage in the caselaw vindicates Professor LaFave, who,
years ago, opined that judges have forgotten the ancient concept of “[r]esist the
opening wedge!”71 Many commentators noted the degree to which subsequent
caselaw has applied the general Terry principles in a manner that seems to have
drifted from the initial, narrow confines of the case.72
A major factor in the slippage has been the adoption of a “totality-of-the-
circumstances” test.73 Under the totality of the circumstances, reasoned analysis
is impeded by the notion that everything is relevant and nothing dispositive.
Because of its lack of structure, the totality-of-the-circumstances approach
allows courts to validate what amounts to mere hunches with some
constitutional window dressing. Further, totality-of-the-circumstances tests
68United States v. Cortez, 449 U.S. 411, 417–18 (1981).
69United States v. Sokolow, 490 U.S. 1, 10 (1989).
70Wardlow, 528 U.S. at 124–25.
71LaFave, The Forgotten Motto, 28 Ariz. L. Rev. at 294.
72See, e.g., Harris, Factors for Reasonable Suspicion, 69 Ind. L.J. at 661–69; Lewis R. Katz,
Terry v. Ohio at Thirty-Five: A Revisionist View, 74 Miss. L.J. 423, 485–97 (2004); Gregory Howard
Williams, The Supreme Court and Broken Promises: The Gradual But Continual Erosion of Terry v.
Ohio, 34 How. L.J. 567, 576–81 (1991).
73Illinois v. Gates, 462 U.S. 213, 230–39 (1983).
34
raise serious rule of law problems as they are not predictable and invite arbitrary
application.
B. Distinction Between “Hunch” and “Reasonable Suspicion.” Under
Terry and its progeny, the first prong is reasonable suspicion that a crime is
being committed.74 What amounts to reasonable suspicion has never been very
clear. The United States Supreme Court has stated that reasonable suspicion
must be based on “articulable” facts and more than “ ‘inchoate and
unparticularized suspicion or “hunch” ’ of criminal activity.”75 The Court has
said that reasonable suspicion is a “fluid concept,” and one that is “not readily,
or even usefully, reduced to a neat set of legal rules.”76
Further, in evaluating reasonable suspicion, the United States Supreme
Court has directed courts to consider the totality of the circumstances.77 As
students of legal history know, the totality-of-the-circumstances test was
considered a failure as a standard for determining when an interrogation was
custodial in cases prior to Miranda v. Arizona78 and has proved problematic as
an approach to determining consent to search as announced in Schneckloth v.
Bustamonte.79 A rule that everything is relevant and nothing is dispositive
74Terry, 392 U.S. at 21.
75Wardlow, 528 U.S. at 123–24 (quoting Terry, 392 U.S. at 27).
76Gates, 462 U.S. at 232.
77Id. at 230–39; see also Terry, 392 U.S. at 19–21.
78Miranda v. Arizona, 384 U.S. 436 (1966).
79Schneckloth v. Bustamonte, 412 U.S. 218 (1973); see Yale Kamisar, Gates, “Probable
Cause,” “Good Faith,” and Beyond, 69 Iowa L. Rev. 551, 570–71 (1984).
35
threatens to evade judicial review by elevating aggregate conclusions and
refusing to permit reasoned analysis.
The second step under Terry is deciding whether there is reason to believe
the individual is “armed and dangerous.”80 In making that determination, Terry
directs that the test is an objective one.81 Because of the vague nature of
reasonable suspicion, concern has been expressed that police will in fact rely
increasingly on subjective means in determining whether to engage in a Terry
pat-down.82
It is important to note that a “hunch” is a statement of a conclusion
without reasonable support. Yet, many of the statements that might support
reasonable suspicion run perilously close to mere assertions. Commentators
have suggested that police assertions of factors that gave rise to reasonable
suspicion should be subject to empirical exploration to segregate a hunch from
reasonable suspicion. For instance, in Wardlow, the United States Supreme
Court declared that flight could be a basis for reasonable suspicion if it occurred
in a “high crime area.”83 But such a factor would be substantially undermined
by empirical evidence suggesting that this was simply not true.84
What method can be used to separate mere hunches from articulate and
particularized suspicion then? Professor Tracey Maclin has suggested an
80Terry, 392 U.S. at 27.
81Id. at 21.
82Jeffrey Fagan, Terry’s Original Sin, 2016 U. Chi. Legal F. 43, 85–86 (2016).
83Wardlow, 528 U.S. at 124–25.
84See Richardson, Cognitive Bias, 44 Ariz. St. L.J. at 291–92.
36
answer.85 According to Professor Maclin, “The fundamental point is that police
officials should not be free to effect seizures based upon factors allegedly
possessed by those engaged in criminal conduct, but also shared by a significant
percentage of innocent persons . . . .”86 To allow general characteristics held by
the many to morph into articulate and particular cause is inconsistent with the
framework of Terry itself. And, in reviewing stop-and-frisks, we should keep in
mind the command of Terry that “courts still retain their traditional
responsibility to guard against police conduct which is over-bearing or
harassing, or which trenches upon personal security without the objective
evidentiary justification which the Constitution requires.”87 As Professor
Amsterdam has taught us, without a careful and disciplined approach to
reasonable suspicion, courts “covert[] the fourth amendment into one immense
Rorschach blot.”88
C. Does “Armed and Dangerous” Mean “Armed and Dangerous”? Terry
itself involved a case in which police officers feared that the person who was
suspected of casing a store for a robbery was armed.89 Terry thus stands for the
proposition that police may engage in a pat-down search if the officers at the
time have reasonable suspicion that criminal activity is afoot and the person is
85Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the
Streets, 75 Cornell L. Rev. 1258, 1320–27 (1990).
86Id. at 1324.
87Terry, 392 U.S. at 15.
88Amsterdam, 58 Minn. L. Rev. at 393.
89Terry, 392 U.S. at 4–7.
37
armed and dangerous.90 Further, Terry declared that “the officer need not be
absolutely certain that the individual is armed; the issue is whether a reasonably
prudent man in the circumstances would be warranted in the belief that his
safety or that of others was in danger.”91
A threshold question is whether an individual must be armed and
dangerous or whether a person who is armed is presumed to be dangerous. In
Terry, the suspect was believed to be casing a department store.92 Where the
suspected crime involves a robbery, a person who is armed is a present danger
and, as a result, subject to a Terry search. A fair case can be made that Terry
involved a particularized finding of danger based on the nature of the crime and
the present threat of violence associated with it.93 When the Terry Court states
its holding, it declares that a limited pat-down search is appropriate when a
person is “armed and dangerous,” not “armed or dangerous” or just “armed.”94
And, in multiple instances, the Terry Court uses the language “armed and
presently dangerous.”95
Indeed, this was one of the points made by Justice Harlan in his
concurrence in Terry.96 According to Justice Harlan, the newly authorized stop-
90Id. at 30.
91Id. at 27.
92Id. at 4–7.
93United States v. Robinson, 846 F.3d 694, 704 (4th Cir. 2017) (en banc) (Wynn, J.,
concurring).
94Terry, 392 U.S. at 25 (emphasis added); see also Robinson, 846 F.3d at 704–05.
95Terry, 392 U.S. at 24, 30 (emphasis added).
96Id. at 31–34 (Harlan, J., concurring).
38
and-frisk was not designed to uncover dangerous weapons but was instead
designed to protect police from hostile persons.97
Further, in Johnson, the United States Supreme Court considered the
validity of a pat-down search of a person in the context of an automobile stop.98
Factors involved in the case included prior incarceration for burglary, possession
of a scanner which might be used to evade police, wearing clothing consistent
with gang membership, and being from a location where that gang was present.99
On remand, the Court expressly left open further consideration of whether the
individual was armed and dangerous by the Arizona court.100
There are cases of the United States Supreme Court that suggest that
possession of a gun is inherently dangerous. In McLaughlin v. United States, the
Court held that an unloaded weapon was a dangerous weapon.101 The
McLaughlin Court declared that “a gun is an article that is typically and
characteristically dangerous” and “the use for which it is manufactured and sold
is a dangerous one.”102
Since Terry, the United States Supreme Court in District of Columbia v.
Heller103 and McDonald v. City of Chicago104 dramatically expanded the meaning
97Id. at 31–32.
98Johnson, 555 U.S. at 326–27.
99Id. at 328.
100Id. at 334 n.2.
101McLaughlin v. United States, 476 U.S. 16, 17–18 (1986).
102Id. at 17.
103District of Columbia v. Heller, 554 U.S. 570, 595 (2008).
104McDonald v. City of Chicago, 561 U.S. 742, 791 (2010).
39
of the Second Amendment to include an individual right to bear arms. Clearly,
there has been a change in the landscape regarding the lawfulness of citizens
carrying weapons. The number of firearms in the hands of the public has
dramatically increased in recent years, and, unlike in the past, it is now lawful
to carry a concealed weapon in public places.105 An argument can now be made
that with so many persons lawfully possessing handguns, authorization of law
enforcement to search a person for possession of a weapon amounts to a type of
general warrant that the Fourth Amendment was designed to prevent. Under this
argument, a Terry search is not permissible for a mere possession of a gun.
Instead, there must be a showing of reasonable suspicion that the individual is
not only armed, but is also dangerous. Recent federal appellate caselaw is mixed
on the question of whether police must establish that an individual is not only
armed but is also dangerous.106
The armed equals dangerous cases reason that a gun may be used to
attack officers and that a person could use a gun to inflict serious injury on
105See Shawn E. Fields, Stop and Risk in a Concealed Carry World, 93 Wash. L. Rev. 1675,
1679–80, 1696–99 (2018) (advocating a “gun possession plus” standard and noting all fifty states
and the District of Columbia authorize their citizens to carry concealed weapons in public, among
which forty-two states impose little or no conditions on this practice); see also Royce de R.
Barondes, Automatic Authorization of Frisks in Terry Stops for Suspicion of Firearms Possession,
43 S. Ill. U. L.J. 1, 2 (2018) [hereinafter Barondes].
106There is a growing body of commentary exploring the question of whether “armed”
means “dangerous” or whether they are two separate requirements for a Terry stop. See generally
J. Richard Broughton, Danger at the Intersection of Second and Fourth, 54 Idaho L. Rev. 379(2018); Alexander Butwin, Note, “Armed and Dangerous” a Half Century Later: Today’s Gun
Rights Should Impact Terry’s Framework, 88 Fordham L. Rev. 1033 (2019); Aaron D. Davison,
Comment, When One Word Changes Everything: How the Unitary Concept Dismantles the Basis
of Terry Frisks, 97 N.C. L. Rev. 192 (2018); Matthew J. Wilkins, Note, Armed and Not Dangerous?
A Mistaken Treatment of Firearms in Terry Analyses, 95 Tex. L. Rev. 1165 (2017); Barondes, 43
S. Ill. U. L.J. at 15–23.
40
police officers.107 Representative of this viewpoint is the opinion of Judge
Niemeyer in the en banc decision of the United States Court of Appeals for the
Fourth Circuit in United States v. Robinson.108 Judge Niemeyer noted that in
Terry, the United States Supreme Court stated that “a reasonably prudent man
would have been warranted in believing petitioner was armed and thus presented
a threat to the officer’s safety.”109 Judge Niemeyer also quoted similar language
from Pennsylvania v. Mimms, “Mimms was armed and thus posed a serious and
present danger to the safety of the officer . . . .”110 Judge Niemeyer concentrated
on the “thus” in these sentences as establishing that being armed is being
dangerous for purposes of Terry. Further, Judge Niemeyer argued that
Robinson’s position “fail[ed] as a matter of logic to recognize that the risk
inherent in a forced stop of a person who is armed exists even when the firearm
is legally possessed.”111 There is caselaw from the Ninth and Tenth Circuits
tending to support Judge Niemeyer’s approach.112
In contrast, the two-pronged armed and dangerous cases require more
than suspicion of mere possession of a firearm to support a Terry stop.113 The
107See,
e.g., Robinson, 846 F.3d at 698–700 (majority opinion); United States v. Rodriguez,
739 F.3d 481, 488–89 (10th Cir. 2013); United States v. Orman, 486 F.3d 1170, 1176–77 (9th
Cir. 2007).
108Robinson, 846 F.3d 694.
109Id. at 700 (quoting Terry, 392 U.S. at 28).
110Id. (quoting Pennsylvania v. Mimms, 434 U.S. 106, 112 (1977) (per curiam)).
111Id. at 701.
112See Orman, 486 F.3d at 1176; Rodriguez, 739 F.3d at 491.
113See Northrup v. City of Toledo Police Dep’t, 785 F.3d 1128, 1132 (6th Cir. 2015) (“Where
it is lawful to possess a firearm, unlawful possession ‘is not the default status.’ ” (quoting United
States v. Black, 707 F.3d 531, 540 (4th Cir. 2013))); United States v. Ubiles, 224 F.3d 213, 218
(3d Cir. 2000) (“This situation is no different than if . . . Ubiles possessed a wallet, a perfectly
41
armed and dangerous cases emphasize that Heller114 and state laws across the
country liberally permit citizens to carry concealed weapons. With many citizens
now engaged in legal concealed weapons possession, the exercise of this right
cannot be a basis for an intrusive search. According to this line of authority, the
Second Amendment right to carry weapons should not be a basis for
surrendering search and seizure rights. The cases seem to be a variant of the
expression “guns don’t kill, people do.”
The two-pronged armed and dangerous theory was explained by Judge
Sutton in Northrup v. City of Toledo Police Department.115 In this case, Northrup
was walking his dog with a gun openly holstered on his hip.116 A motorcyclist
observed the gun and confronted Northrup.117 When police arrived in response
to the motorcyclist’s 911 call, they asserted Northrup pulled out his cell phone,
which was holstered on his hip, and moved his hands back toward the
weapon.118 Police then disarmed Northrup and asked him to turn around with
his hands over his head.119 When Northrup refused to comply and asked why
police were present, an officer “walked up and unsnapped and temporarily took
legal act in the Virgin Islands, and the authorities had stopped him for this reason.”); State v.
Serna, 331 P.3d 405, 410 (Ariz. 2014) (“In a state . . . that freely permits citizens to carry
weapons, both visible and concealed, the mere presence of a gun cannot provide reasonable and
articulable suspicion that the gun carrier is presently dangerous.”); see also State v. Bishop, 203
P.3d 1203, 1218–19 (Idaho 2009); State v. Vandenberg, 81 P.3d 19, 25–26 (N.M. 2003).
114Heller, 554 U.S. at 595.
115Northrup, 785 F.3d 1128.
116Id. at 1130.
117Id.
118Id.
119Id.
42
possession of his firearm.”120 Northrup was handcuffed and spent thirty minutes
in a squad car.121 After police determined Northrup had a concealed carry permit,
Northrup was cited for “failure to disclose personal information” under an Ohio
statute and released.122 The charge was ultimately dismissed, and Northrup
sued alleging, among other things, violation of his Fourth Amendment rights.123
The officer sought summary judgment on the ground that he had
reasonable suspicion that Northrup was engaged in criminal activity because of
two undisputed facts: (1) Northrup was visibly carrying a gun in his holster, and
(2) the officer was responding to a 911 call.124 The district court denied the
officer’s motion to dismiss Northrup’s Fourth Amendment claim.125
On interlocutory appeal, the Sixth Circuit affirmed the district court.
According to Judge Sutton, the police were required to show that Northrup was
armed and dangerous in order to justify their actions in seizing Northrup’s
gun.126 But, according Judge Sutton, the officer only saw Northrup’s gun; there
was no showing of dangerousness.127 Judge Sutton asserted that to allow stops
based upon mere possession of a handgun “would effectively eliminate Fourth
120Id.
121Id. at 1133–34.
122Id. at 1130.
123Id. at 1130–31.
124Id. at 1131.
125Id.
126Id. at 1132.
127Id. (“Yet all he ever saw was that Northrup was armed—and legally so.”).
43
Amendment protections for lawfully armed persons.”128 There is a body of other
federal caselaw supporting the armed and dangerous viewpoint.129
In addition, an argument can be made that because the term “armed” is
so broad,130 there should be an additional element of dangerousness. According
to this argument, the mere possession of many objects that might be described
as a weapons are not categorically dangerous.
There are a handful of cases that suggest that the nature of the crime
being investigated may be a factor in determining whether a person who is
suspected of being armed is also dangerous.131 In the words of one court, guns
are “tools of the trade” of narcotics dealers.132 These cases seem more aligned
with Judge Sutton’s approach in Northrup than Judge Niemeyer’s approach in
Robinson.
At least one state supreme court has adopted what amounts to an armed
and dangerous approach under its state constitution.133 Supreme courts in
Arizona, Idaho, and New Mexico have adopted the armed and dangerous
approach under their interpretations of the Fourth Amendment.134
128Id. (quoting United States v. King, 990 F.2d 1552, 1559 (10th Cir. 1993)).
129See United States v. Leo, 792 F.3d 742, 752 (7th Cir. 2015); Black, 707 F.3d at 540;
Ubiles, 224 F.3d at 218.
130Robinson,846 F.3d at 703–04 (Wynn, J., concurring) (citing Wright v. New Jersey, 469
U.S. 1146, 1149 n.3 (1985)).
131See United States v. Adams, 759 F.2d 1099, 1108–09 (3d Cir. 1985) (noting that
weapons could be tools of trade in a case where weapons were found with a major supplier of
narcotics).
132UnitedStates v. Oates, 560 F.2d 45, 62 (2d Cir. 1977) (quoting United States v. Wiener,
534 F.2d 15, 18 (2d Cir. 1976)).
133Coleman v. State, 553 P.2d 40, 46 (Alaska 1976).
134Serna, 331 P.3d at 409–10; Bishop, 203 P.3d at 1218; Vandenberg, 81 P.3d at 25.
44
Finally, it is worth considering which interpretation of armed and
dangerous is most consistent with the constitutional values behind search and
seizure limitations. In Minnesota v. Dickerson, Justice Scalia famously doubted
that “the fiercely proud men who adopted our Fourth Amendment would have
allowed themselves to be subjected, on mere suspicion of being armed and
dangerous, to such indignity . . . .”135 If Justice Scalia is right, what does that
mean for the stop-and-frisk in this case? Certainly, the approach of the majority
in this case is completely inconsistent with Justice Scalia’s vision in Dickerson.
D. “Nervousness” and “Anxiety.” There is a body of caselaw holding that
if an officer declares that a person appears nervous or anxious, that is a basis
for a lawful warrantless search and seizure.136 In State v. Bergmann,
nervousness was cited as a factor among others in finding reasonable suspicion
for a stop-and-frisk.137
But who can deny that just about everyone is nervous and anxious when
pulled over by the police, even for a minor traffic stop?138 If nervousness and
anxiety were sufficient, everyone pulled over by the police at a traffic stop would
be subject to warrantless searches and seizures. We must be careful that
135Minnesota v. Dickerson, 508 U.S. 366, 381 (1993) (Scalia, J., concurring).
136See, e.g., United States v. Hunnicutt, 135 F.3d 1345, 1350 (10th Cir. 1998) (holding
reasonable suspicion was found when the passengers were extremely nervous); United States v.
Sowers, 136 F.3d 24, 27 (1st Cir. 1998); United States v. Lindsey, 451 F.2d 701, 703 (3d Cir.
1971); State v. Dunbar, 85 A.3d 421, 424 (N.J. Super. Ct. App. Div. 2014).
137State v. Bergmann, 633 N.W.2d 328, 333 (Iowa 2001).
138United States v. McKoy, 402 F. Supp. 2d 311, 317–18 (D. Mass. 2004) (“Nervousness
is a natural reaction to police presence.”); Barraco v. State, 537 S.E.2d 114, 117 (Ga. Ct. App.
2000) (“[N]ervous behavior of a person who has been stopped by an armed law enforcement officer
is not an unusual response.”).
45
nervousness does not permit stop-and-frisk of a “very large category of
presumably innocent travelers.”139 That would be the equivalent of a general
warrant whose evils were a major driver not only of the Fourth Amendment but
of the American Revolution itself.140
It is not surprising that a number of courts have given the nervousness or
anxiety factor little-to-no weight in determining reasonable suspicion.141 As
noted by one court, nervousness “is an unreliable indicator, especially in the
context of a traffic stop. Many citizens become nervous during a traffic stop, even
when they have nothing to hide or fear.”142
Further, courts have left individuals in a “condemned if you do,
condemned if you don’t” position with regards to the nervousness inquiry,
particularly when vague descriptors like eye contact or apprehensiveness are
utilized.143 As noted in United States v. Johnson, a person involved in an
139Reid v. Georgia, 448 U.S. 438, 441 (1980) (per curiam).
140United States v. Eustaquio, 198 F.3d 1068, 1071 (8th Cir. 1999) (noting Fourth
Amendment violation when “too many people fit this description for it to justify a reasonable
suspicion of criminal activity”); State v. Schlosser, 774 P.2d 1132, 1138 (Utah 1989) (“When
confronted with a traffic stop, it is not uncommon for drivers and passengers alike to be nervous
and excited . . . .”).
141E.g. United States v. Samuels, 443 F. App’x 156, 159–61 (6th Cir. 2011) (citing United
States v. Arvizu, 534 U.S. 266, 275–76 (2002)); United States v. Andrews, 600 F.2d 563, 566 n.4
(6th Cir. 1979) (refusing to give weight to nervousness, noting that the government made contrary
arguments in prior cases); People v. Powell, 667 N.Y.S.2d 725, 728 (App. Div. 1998) (“In light of
the recognized ‘unsettling’ aspect of a police-initiated inquiry of citizens, we reject the People’s
suggestion that defendant’s allegedly nervous reaction to this questioning authorized a greater
intrusion.” (citations omitted)).
142United States v. Richardson, 385 F.3d 625, 630–31 (6th Cir. 2004) (citation omitted).
143Compare State v. Jackson, 892 So. 2d 71, 76 (La. Ct. App. 2004) (noting the “defendant
appeared extremely nervous and fidgety, [and] refused to make eye contact”), with United States
v. Cardona, 955 F.2d 976, 982 n.15 (5th Cir. 1992) (noting that the defendant appeared “too
calm”).
46
automobile stop faces a no-win dilemma: “Had Johnson averted his eyes and
slouched, he might have been considered evasive. Because he stood straight and
maintained eye contact, [the officer] considered him aggressive. Johnson simply
could not win. Nervous indicators are weak indicators in the traffic-stop
context.”144
Similar observations have been made by Judge Richard Posner: “Whether
you stand still or move, drive above, below, or at the speed limit, you will be
described by the police as acting suspiciously should they wish to stop or arrest
you. Such subjective, promiscuous appeals to an ineffable intuition should not
be credited.”145 Indeed, while nervousness is sometimes said to be a factor in
reasonable suspicion, some courts have found that “unusually calm” demeanor
can also support reasonable suspicion.146
To the extent nervousness has been properly considered, it is usually
linked with evasive behavior.147 As noted by the Sixth Circuit in Joshua v. DeWitt,
reasonable suspicion may be supported by nervous, evasive behavior but not
simply nervous behavior, which proves very little.148 Evasive actions such as
running away from police may have a degree of objectivity, but detecting evasive
144United States v. Johnson, 482 F. App’x 137, 145 (6th Cir. 2012).
145United States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (citing United States v.
Jones, 269 F.3d 919, 927–29 (8th Cir. 2001)); see also United States v. Prandy-Binett, 995 F.2d
1069, 1077 n.3 (D.C. Cir. 1993) (Edwards, J., dissenting) (“It is well known, by now, that the
police will cite virtually any circumstance noted prior to arrest or a Terry-stop in order to justify
the defendant’s detention.”).
146E.g. United States v. Himmelwright, 551 F.2d 991, 992 (5th Cir. 1977).
147Wardlow, 528 U.S. at 124 (stating that nervous, evasive behavior is a pertinent factor
in determining reasonable suspicion).
148Joshua v. DeWitt, 341 F.3d 430, 445 (6th Cir. 2003).
47
maneuvers of one sitting in an automobile seems much more subjective (and
therefore impermissible) in nature.
Further, we must recognize the impact of racial anxiety on interactions
between white officers and black citizens. Racial anxiety can cause an individual
to be self-conscious or hypervigilant.149 The stress of racial anxiety is associated
with sweating, increased heart rate, twitching, fidgeting, and avoiding eye
contact.150 It is normal in the context of a traffic stop to have tensions based on
racial anxiety as well as the normal stresses associated with an exercise of police
authority on the individual.
E. “Furtive Movements.” And then there is the “furtive movement” issue.
As noted in Floyd v. New York City, “Courts have also recognized that furtive
movements, standing alone, are a vague and unreliable indicator of
criminality.”151 A Sixth Circuit case has noted that the phrase “furtive gestures”
may be a characterization rather than independent fact.152 A federal district
court also disapproved the position that any movement by someone being
approached is by definition furtive.153 “[M]ovement alone is not what courts are
to consider, but rather movement signifying danger within a particular
149L.Song Richardson, Implicit Racial Bias and Racial Anxiety: Implications for Stops and
Frisks, 15 Ohio St. J. Crim. L. 73, 78–81 (2017) [hereinafter Richardson, Implicit Racial Bias].
150Id.
151Floyd v. City of New York, 959 F. Supp. 2d 540, 580 (S.D.N.Y. 2013).
152DeWitt, 341 F.3d at 443–44.
153United States v. McKoy, 402 F. Supp. 2d at 321 (citing Blackie v. Maine, 75 F.3d 716,
722 (1st Cir. 1996)).
48
context.”154 In State v. Riley, we found a furtive gesture of rummaging around
under the seat looking for something, accompanied by a failure to provide
identification together supported a Terry stop-and-frisk under the Fourth
Amendment.155
As a vague concept, the concept of furtive movements opens the door to
implicit bias. As noted in Floyd:
[R]ecent psychological research has shown that unconscious racial
bias continues to play an objectively measurable role in many
people’s decision processes. It would not be surprising if many police
officers share the latent biases that pervade our society. If so, such
biases could provide a further source of unreliability in officers’
rapid, intuitive impressions of whether an individual’s movements
are furtive and indicate criminality.156
Indeed, one of the grave problems with Iowa law is that our search and seizure
jurisprudence on the road permits pretextual stops based on minor traffic
violations.157
In the end, there seems to be what one scholar has called “a script making
process” at work.158 The magic words in the script are nervousness, furtive
movements, anxiety. But the descriptive labels, at their root, are entirely or
largely subjective and conclusory in nature. And mere conclusions should not
154Id.
155State v. Riley, 501 N.W.2d 487, 490 (Iowa 1993).
156Floyd, 959 F. Supp. 2d at 580–81 (footnotes omitted).
157Brown, 930 N.W.2d at 854 (majority opinion).
158See generally Robert P. Abelson, Script Processing in Attitude Formulation and
Decisionmaking, in Condition and Social Behavior 33 (John S. Carroll & John W. Payne, eds.
1977).
49
provide sufficient particularity to authorize the government to search and
seize.159
F. Prior Criminal History. In this case, it is undisputed that Price-
Williams had a prior criminal history. Caselaw makes clear that criminal
convictions in the past may be a factor in determining reasonable suspicion.160
But, “[s]tanding alone, a criminal record . . . ‘is not sufficient to create reasonable
suspicion of anything.’ ”161 Among the factors that should be considered,
however, are the age of the past conviction and whether there is any evidence of
continuing conduct.162 Where convictions are older and where there is no
evidence of a continued violation, their value in the reasonable suspicion
analysis is considerably diminished. As noted by the Sixth Circuit in Johnson,
suspicion based on a suspect’s prior criminal record is little more than a
hunch.163
G. Citizen Interests at Stake. In evaluating warrantless searches and
seizure, we must also be clear-eyed about what is at stake. The invasions
159According to Professor LaFave, “One of the themes running though the decisions on
the Fourth Amendment probable cause requirement is that when the ultimate probable cause
determination is made, whether by a magistrate when a warrant is sought or upon a motion to
suppress evidence obtained without a warrant, mere conclusions will not suffice.” 2 Wayne R.
LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e) (6th ed. 2020); see also
Nathanson v. United States, 290 U.S. 41, 46–47 (1933) (holding that mere conclusions are
insufficient for a search warrant); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005)
(“Mere opinions are ineffective substitutes for specific, articulable facts in a reasonable-suspicion
analysis.”).
160United States v. Hammond, 890 F.3d 901, 906 (10th Cir. 2018); Johnson, 482 F. App’x
at 147; DeWitt, 341 F.3d at 446; State v. Hoskins, 711 N.W.2d 720, 726–27 (Iowa 2006).
161Hammond, 890 F.3d at 906–07 (quoting United States v. Rice, 483 F.3d 1079, 1085
(10th Cir. 2007)).
162United States v. McNally, 473 F.2d 934, 940 (3d Cir. 1973).
163Johnson, 482 F. App’x at 148.
50
emphatically cannot be characterized as trivial. In Terry, the United States
Supreme Court declared that “[t]his inestimable right of personal security
belongs as much to the citizen on the streets of our cities as to the homeowner
closeted in his study to dispose of his secret affairs.”164 The Terry Court
emphasized that “[e]ven a limited search of the outer clothing for weapons
constitutes a severe, though brief, intrusion upon cherished personal security,
and it must surely be an annoying, frightening, and perhaps humiliating
experience.”165 The Terry Court noted that pat-downs were performed in public
with officers touching the entire body, including “arms and armpits, waistline
and back, the groin and area about the testicles, and entire surface of the legs
down to the feet.”166 As a result, the Terry Court noted, “It is simply fantastic to
urge that such a procedure performed in public by [police] while the citizen
stands helpless, perhaps facing a wall with his hands raised, is a ‘petty
indignity.’ ”167 Consistent with Terry, the Court later stated that allowing police
officers to search anyone thought to be armed would “create[] a serious and
recurring threat to the privacy of countless individuals.”168
Now some may characterize being ordered out of the car and frisked as a
“minimal” intrusion, but no one on this planet who has been subject to a
164Terry, 392 U.S. at 8–9.
165Id. at 24–25.
166Id.at 17 n.13 (quoting L.L. Priar & T.F. Martin, Searching and Disarming Criminals, 45
J. Crim. L. Criminology & Police Sci. 481, 481 (1954)).
167Id. at 16–17.
168Arizona v. Gant, 556 U.S. 332, 345 (2009).
51
warrantless pat-down search on a public highway would endorse this
description.169 While the membership of the United States Supreme Court may
have changed, the truth of the original Terry pronouncement has not.
Given the potential for harassment posed by stop-and-frisk, the Terry
Court itself noted the potential that law enforcement actions may cause
“community resentment” and therefore “is not to be undertaken lightly.”170 There
is evidence that programmatic stop-and-frisk in cities has undermined trust
among those searched and those who witnessed the search.171 If perceptions of
legitimacy are undermined by indiscriminate stop-and-frisk, the rule of law may
be severely undermined.172 Indeed, recent events show that, if anything, the
stakes for the citizen are much higher than they were at the time of Terry. There
is a growing body of literature related to injury and death to citizens arising out
of encounters with police arising from traffic stops.173 At least one authority has
suggested that there is now sufficient data available that the holding in Terry
should be revisited.174
169For a description of a pat-down search consistent with the description in Terry by a
former police officer turned academic, see Seth W. Stoughton, Terry v. Ohio and the
(Un)Forgettable Frisk, 15 Ohio St. J. Crim. L. 19, 29–30 (2017).
170Terry, 392 U.S. at 17 & n.14.
171Ross, 25 Wm & Mary Bill Rts. J. at 732.
172See Tom R. Tyler, Why People Obey the Law 57 (2006); Janice Nadler, Flouting the Law,
83 Tex. L. Rev. 1399, 1400 (2005).
173Jeffrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100
B.U. L. Rev. 951, 989–99 (2020) (compiling fatal police shootings database and concluding that
African–American suspects are more than twice as likely to be killed by police than persons of
other racial or ethnic groups, even though there are no obvious circumstances during the police
encounter that would warrant the deadly force used by the police).
174Ross, 25 Wm. & Mary Bill Rts. J. 689.
52
H. The Problem of Implied Bias and Discriminatory Enforcement. As
suggested above, search and seizure has always been concerned, in part, with
the use of government machinery against disfavored groups. With the passage
of the Fourteenth Amendment and its clear command that all persons receive
equal protection of the law, search and seizure law has a clear equality principle.
Terry recognized the interface between search and seizure law and race
relations. In a footnote, Terry observed:
The President’s Commission on Law Enforcement and
Administration of Justice found that “[i]n many communities, field
interrogations are a major source of friction between the police and
minority groups” . . . . This is particularly true in situations where
the “stop and frisk” of youths or minority group members is
“motivated by the officers’ perceived need to maintain the power
image of the beat officer, an aim sometimes accomplished by
humiliating anyone who attempts to undermine police control of the
streets.”175
When subjective and elusive factors are involved, the prospect of arbitrary
enforcement inevitably arises. Among other things, implicit bias can creep into
stop-and-frisk decisions.
The question of implicit bias in stop-and-frisk has been explored by Dean
L. Song Richardson.176 Dean Richardson assumes that officers act in good faith
in their stop-and-frisk behavior.177 However, according to Dean Richardson,
175Terry,
392 U.S. at 14 n.11 (alteration in original) (citation omitted) (quoting President’s
Comm’n on L. Enf’t & Admin. Just., Task Force Report: The Police 183 (1967)).
176See generally L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95
Minn. L. Rev. 2035 (2011) [hereinafter Richardson, Arrest Efficiency]; Richardson, Cognitive Bias,
44 Ariz. St. L.J. 267; Richardson, Implicit Racial Bias, 15 Ohio St. J. Crim. L. at 78; see also Kent
Greenawalt, Probabilities, Perceptions, Consequences and “Discrimination”: One Puzzle about
Controversial “Stop and Frisk,” 12 Ohio St. J. Crim. L. 181 (2014); Justin D. Levinson & Robert
J. Smith, Systemic Implicit Bias, 126 Yale L.J.F. 406 (2017).
177Richardson, Implicit Racial Bias, 15 Ohio St. J. Crim. L. at 75.
53
“even assuming good faith, it is inevitable that Terry stops and frisks will result
in unjustified racial disparities regardless of officers’ conscious racial
motivations even when Black and White individuals are acting identically.”178
Dean Richardson emphasizes that social psychology over the past four decades
“repeatedly demonstrates that most individuals of all races have implicit, i.e.
unconscious, racial biases linking Blacks with criminality and Whites with
innocence.”179 Dean Richardson cites computer simulations that show officers
are “quicker to determine that individuals are armed when they are Black as
opposed to White.”180 This is explained, in part, by research that shows that “it
takes less time for the mind to process information that is congruent with racial
stereotypes.”181 So, a quick decision is likely to be more influenced by implicit
bias than a more deliberate one.
According to Dean Richardson, allowing officers to act on ambiguous
behaviors “permits, rather than prevents, actions based upon racial hunches”
that Terry sought to avoid.182 Dean Richardson has noted the fact that
reasonable suspicion is sometimes described in totally contradictory terms (i.e.
defendant was “nervous,” defendant was “calm”) is consistent with the
178Id.
179Id.
180Id. at 77.
181Id.
182Id. at 83.
54
inconsistent accounts that does not require a finding that the officers engaged
in intentional or deceitful explanations.183
Dean Richardson has noted the problematic impact of implicit bias is
further exacerbated by fundamental attribution error.184 Fundamental
attribution error is a tendency to judge an individual’s action as arising from
fundamental personality traits rather than the situation itself.185 Fundamental
attribution error causes underestimation of situational factors in favor of more
personal dispositional factors.186 Further, research shows people tend to
attribute negative behaviors of outgroup members to disposition and positive
behaviors to the situation.187
I have expressed concern about the role implicit bias plays whenever a
government actor is vested with broad discretion in making decisions.188
Because broad discretion provides a rich environment for decision-making based
on implicit bias, I have sought, consistent with historic search and seizure
principles, to cabin and contain exercises of government power.189 Because of
183Richardson, Arrest Efficiency, 95 Minn. L. Rev. at 2066.
184Richardson, Cognitive Bias, 44 Ariz. St. L.J. at 273.
185Id. at 269–71 (citing Andrew E. Taslitz, Police Are People Too: Cognitive Obstacles to,
and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J.
Crim. L. 7, 17–18 (2010)).
186Id. at 270.
187Id. at 273.
188State v. Veal, 930 N.W.2d 319, 343 (Iowa 2019) (Appel, J., concurring in part and
dissenting in part); Williams, 929 N.W.2d at 642–45 (Appel, J., concurring in part and dissenting
in part); State v. Plain, 898 N.W.2d 801, 830–36 (Iowa 2017) (Appel, J., concurring specially).
189See State v. Warren, 955 N.W.2d 848, 873 (Iowa 2021) (Appel, J., dissenting) (opposing
search and seizure based upon completed traffic violation in part on grounds that such broad
police power would be a breeding ground for implicit bias); Brown, 930 N.W.2d at 871 (Appel, J.,
55
implicit bias, “ambiguous behaviors [are viewed] as more threatening and
suspicious when engaged in by Black individuals versus White individuals.”190
Perhaps the frankest discussion of the risks of implicit bias, however, can
be seen in the concurring opinion of Justice Wiggins in State v. Plain.191 Speaking
for a near majority of the court, Justice Wiggins cited a report of The Sentencing
Project that demonstrated that while 25.8% of the Iowa prison population was
African-American, African-Americans constituted only 3.1% of the population in
Iowa.192 Justice Wiggins described the statistics as shameful and attributed
much of the disproportionality to implicit bias.193
There is ample empirical evidence generally supporting the notion that
race plays a role in discretionary law enforcement decisions. For example, among
suspects stopped by the police, people of color are more likely to be arrested than
whites.194 Indeed, study after study has shown that men and women of color are
“over-stopped, over-frisked, over-searched, and over-arrested.”195
dissenting) (opposing pretextual traffic stops where driving violations are ubiquitous as arbitrary
exercise of police power where implicit bias may be a factor).
190Richardson, Implicit Racial Bias, 15 Ohio St. J. Crim. L. at 76.
191See generally Plain, 898 N.W.2d at 830 (Wiggins, J., concurring specially).
192Id. (citing Ashley Nellis, The Sent’g Project, The Color of Justice: Racial and Ethnic
Disparity in State Prisons (2016)).
193Id.
194Tammy Rinehart Kochel et. al., Effect of Suspect Race on Officers’ Arrest Decisions, 49
Criminology 473, 498–503 (conducting thorough analysis of different databases and concluding
that race indeed plays a role in an officer’s arrest decisions) (2011).
195Ian Ayres & Johnathan Borowsky, ACLU of S. Cal., A Study of Racially Disparate
Outcomes in the Los Angeles Police Department 27 (2008); see, also Commonwealth v. Warren, 58
N.E.3d 333, 340–42 (Mass. 2016) (holding flight in high crime area not sufficient under Terry
because stop data in Boston showed substantial and intentional racial disparities in stop-and-
frisk of black men); State v. Soto, 734 A.2d 350, 352–54 (N.J. Super. Ct. Law Div. 1996) (noting
African-Americans disproportionately stopped on New Jersey turnpike with statistical standard
deviation of 16.35); Floyd, 959 F. Supp. 2d at 558–59 (finding 52% of stops were African-
56
III. Independent State Constitutional Development.
State courts have not uniformly done a better job than the United States
Supreme Court on search and seizure issues. Some simply follow the United
States Supreme Court’s precedents as if the Court has some superior insight on
search and seizure issues than state court judges. Some just do a cut and paste
job of federal precedents as a matter of efficiency and do not offer their
independent views. Yet, many state supreme courts have engaged in serious
independent analysis of search and seizure law under their state
constitutions.196
The Alaska courts have departed from Terry in a significant way. The
seminal case is Coleman v. State.197 In Coleman, the Alaska Supreme Court held
that the Terry rule would apply only “where the police officer has a reasonable
suspicion that imminent public danger exists or serious harm to persons or
property has recently occurred.”198 The Alaska approach is consistent with the
American while African-Americans made up only 23% of the population); Bernard E. Harcourt &
Tracey L. Meares, Randomization and the Fourth Amendment, 78 U. Chi. L. Rev. 809, 854–59
(2011) (reviewing data and studies from across the country showing disparate impact based on
race in search and seizure); Stephen Rushin & Griffin Edwards, An Empirical Assessment of
Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637, 697 (2021) (“[R]ules granting police
discretion in traffic stops may lead to more traffic stops of drivers of color, with some likely
escalating to more serious encounters.”). See generally William H. Buckman & John Lamberth,
Challenging Racial Profiles: Attacking Jim Crow on the Interstate, 10 Temp. Pol. & C.R. L. Rev.
387 (2001); Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug
Interdiction on the Highway, 101 Mich. L. Rev. 651 (2002).
196See generally LaKeith Faulkner & Christopher R. Green, State-Constitutional
Departures from the Supreme Court: The Fourth Amendment, 89 Miss. L.J. 197 (2020); Nathaniel
C. Sutton, Note, Lockstepping Through Stop-and-Frisk: A Call to Independently Assess Terry v.
Ohio Under State Law, 107 Va. L. Rev. 639 (2021).
197Coleman, 553 P.2d 40.
198Id. at 46.
57
approach of Judge Friendly in his often cited dissenting opinion in Williams v.
Adams.199 In Williams, Judge Friendly concluded that Terry “was meant for the
serious cases of imminent danger or of harm recently perpetrated to persons or
property.”200
Other state courts have emphasized the need to put some spine into Terry
stops. Specifically, for example, a Pennsylvania appellate court has taken a
skeptical view of the role of “nervousness” and “furtive movements” as providing
reasonable suspicion in traffic stops.201 The Minnesota Supreme Court departed
from federal precedent under its state constitution in State v. Askerooth by
holding, among other things, that the scope of a traffic stop cannot be expanded
unless there is independent basis to do so.202 The supreme courts of
Massachusetts and Washington have declined to extend Terry to parking
infractions under their state constitutions.203 In Commonwealth v. Warren, the
Massachusetts Supreme Judicial Court noted that “the finding that Black males
in Boston are disproportionately and repeatedly targeted for [field interrogation
and observation] encounters suggests a reason for flight totally unrelated to
consciousness of guilt.”204 These observations are inconsistent with Wardlow.
199Williams v. Adams, 436 F.2d 30, 35–39 (2d Cir. 1970) (Friendly, J., dissenting), rev’d
en banc, 441 F.2d 394 (2d 1971), rev’d, 407 U.S. 143 (1972).
200Id. at 39.
201Commonwealth v. Buchert, 68 A.3d 911, 916–17 (Pa. Super. Ct. 2013).
202State v. Askerooth, 681 N.W.2d 353, 365 (Minn. 2004) (en banc).
203Commonwealth v. Rodriguez, 37 N.E.3d 611, 620 (Mass. 2015); State v. Duncan, 43
P.3d 513, 519 (Wash. 2002) (en banc).
204Warren, 58 N.E.3d at 342.
58
IV. Discussion.
A. Overview. Under Terry, the State must show reasonable suspicion
(1) that Price-Williams was engaged in illegal activity, and (2) that he was armed
and dangerous.205 A valid stop does not mean that a frisk is necessarily
permitted. In order to engage in a frisk, there must be a reasonable suspicion
that the individual is armed and dangerous.206 I proceed to consider these
questions.
In evaluating a Terry-type claim in the current setting, we should take into
consideration the risks of implicit bias arising from less than objective indicia of
reasonable suspicion, the racial anxiety that ordinarily may be expected from
routine traffic stops, and the likely disproportionate impact of stop-and-frisk
based on broad discretion. Unlike prior cases, we have the benefit of videocam
footage which provides us with a much better opportunity to exercise the judicial
supervision of police behavior as expected under both the Fourth Amendment to
the United States Constitution and article I, section 8 of the Iowa Constitution.
While Price-Williams does not propose a different legal framework for evaluating
reasonable suspicion under article I, section 8 of the Iowa Constitution, we are
free to apply the standard more stringently, or “with teeth,” under Iowa law.207
205Terry, 392 U.S. at 27, 30; see also Johnson, 555 U.S. at 326–27 (noting two separate
steps with each requiring its own justification); Dickerson, 508 U.S. at 374–377 (majority opinion)
(discussing two-step Terry approach).
206Terry, 392 U.S. at 27.
207See State v. Coleman, 890 N.W.2d 284, 298 (2017) (applying Schneckloth “with teeth”);
see also Cynthia Lee, Reasonableness with Teeth: The Future of Fourth Amendment
Reasonableness Analysis, 81 Miss. L.J. 1133, 1159–60 (2012) (advocating the idea that courts
should “conduct a more rigorous inquiry into the overall reasonableness of the search”);
Richardson, Cognitive Bias, 44 Ariz. St. L.J. at 287–93 (recommending consideration of hit rates
59
While it may be in federal courts that reasonable suspicion has expanded and
Fourth Amendment protections have contracted, I would reverse the process and
adhere to the original notion of Terry of a “narrow” exception to the warrant
requirement.
B. Reasonable Suspicion of a Crime.
1. Introduction. The first question is whether officers had reason to believe
that Price-Williams was engaged in illegal activity. In this case, the illegal activity
was unlawful possession of a firearm. The validity of the Terry stop is judged by
what the officers knew at the time of the stop, not what might have been gathered
after the fact. The State has suggested three factors that support the search:
nervousness, furtive movements, and Price-Williams’s prior criminal record. I
examine each of these factors below.
2. Nervousness. I begin with a discussion of nervousness in the presence
of the officers. In my view, after viewing the videocams of the officers involved in
this stop-and-frisk, there is no objective sign of criminal activity or
dangerousness based upon nervousness of Price-Williams. Whenever law
enforcement officers engage in a stop with lights flashing, most people have a
degree of nervousness and anxiety. Video records do not show Price-Williams
was acting beyond what is usually expected. Yes, he might have frozen for a split
and more stringent articulation and elimination of race proxies). See generally Akhil Reed Amar,
Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994) (advocating stricter application
of Terry through concepts of proportionality, better account of interests of personal dignity, and
spacious consideration of race in police/citizen encounters); Robert Berkley Harper, Has the
Replacement of “Probable Cause” with “Reasonable Suspicion” Resulted in the Creation of the Best
of All Possible Worlds?, 22 Akron L. Rev. 13 (1988) (advocating strict Terry application).
60
second, but that is normal for anybody in his situation when their Lyft driver got
pulled over.
Further, interactions between African-American citizens and white officers
commonly gives rise to racial anxiety. There is simply nothing in the video that
suggests objective evidence of a significantly increased level of nervousness to
suggest a crime is being committed. It seems to me there are no concrete
articulable facts here, but at most a subjective impression of nervousness.
Certainly, standing alone, the claim of nervousness does not satisfy objective
reasonable suspicion that Price-Williams is committing a crime. Instead,
suggesting nervousness was a factor in this case would embrace a subjective
approach that, if permissible, would open the door widely for a wide range of
implicit biases to run rampant as a result of our search and seizure law.
3. Furtive movements. The second factor presented is furtive movements.
Concrete and potentially threatening furtive movements in this case are
nonexistent. What exactly amounts to a furtive gesture is unclear in the caselaw.
Body cameras show that Price-Williams first put up his phone to the window to
show the police that he was on his way to see his kid. When the officer told Price-
Williams he did not need to call the child’s mother to prove what he told the
officer, he put the phone down. Shortly thereafter, video showed that the officer
pointed a gun at Price-Williams. Price-Williams put both his hands up in
surrender. There is no concrete, threatening furtive gesture on the video.
4. Prior criminal record. At the time of the Terry pat-down, the officers knew
that Price-Williams had a criminal history that included illegal possession of a
61
weapon some fourteen months earlier and an arrest for eluding. This information
was known by the officers involved at the time of the Terry pat-down in this case.
Yet, the information was over a year old. It only provides a slender reed for
reasonable suspicion and nothing to suggest an ongoing violation. Instead, it
seems to fall more on the spectrum of a hunch rather than reasonable suspicion.
That conclusion, at least, would follow the teaching of Sixth Circuit in Johnson,
which I find persuasive.208
There is a clear distinction between a past history of using weapons
violently and a mere history of possession. “[A] criminal record, standing alone,
is not sufficient to create reasonable suspicion of anything.”209 At least one
federal district court distinguishes between cases where suspects have engaged
in violent activity and where mere possession is involved:
Unlike the defendants in Hammon and Rice, Detter had no
prior record of using weapons violently. Nor did the officers have a
specific reason to believe Detter would react violently in this
situation. Furthermore, the officers had no special reason to believe
that Detter was armed at the time of the traffic stop. Detter lacks a
history of involvement in violent gangs and has never been convicted
of a violent crime. A single instance of past firearm possession does
not give rise to the reasonable suspicion that Detter was armed and
dangerous in this situation. As such, the Court holds that the Terry
frisk of Detter was unlawful.210
5. Totality of the circumstances. At the end of the day, the question here is
whether the weak indicators give rise to reasonable suspicion that Price-Williams
208See Johnson, 482 F. App’x at 143.
209United States v. Rice, 483 F.3d 1079, 1085 (10th Cir. 2007); see also Hammond, 890
F.3d at 906–07.
210United States v. Detter, 2019 WL 1206986, at *4 (D. Kan. Mar. 14, 2019).
62
was committing a crime by possessing a gun as a felon. Because of the porous
nature of reasonable suspicion, it may be a close case. In any event, it is not
necessary to address this question in light of the shortcomings in the record with
respect to the second Terry requirement, namely, that the suspect be armed and
dangerous.
C. Reasonable Suspicion of “Armed and Dangerous.” In this case, there
is little in the record to suggest that Price-Williams was actually dangerous
beyond the fact that he may have been possessing a weapon. Mere possession of
a weapon, even if that possession is unlawful, is not the same as being
dangerous. So the question arises whether under Terry must police show that
the individual was both armed and dangerous or is it sufficient simply to show
that the defendant was armed.
As noted above, the caselaw is mixed on the question of whether a suspect
must be both “armed and dangerous” or simply “armed” to support a Terry
search. The cases invariably pay close attention to the precise language in Terry.
Cases declaring a suspect must be both armed and dangerous point to the
straightforward language itself. Cases suggesting that anyone armed is
inherently dangerous point to the “thus” language in Terry. From a language
perspective, both positions have a point.
The ambiguity in Terry is not entirely surprising. In Terry, the United
States Supreme Court seemed to be struggling to achieve a compromise. The
Terry Court seemed to have wanted to respond to concerns raised by the NAACP
and others regarding the potential dangers of discretionary stop-and-frisk while
63
at the same time avoiding the public backlash associated with the Court’s
precedents like Miranda.
But clearly the legal landscape has changed since Terry. Lawful possession
of guns has proliferated. Iowa has significantly liberalized its gun laws to permit
open carry.211 Can it be that thousands of Iowans who lawfully possess and carry
firearms are automatically, and without more, subject to a Terry search? Would
such a broad police authority to stop-and-frisk thousands of Iowans be a variant
on a general warrant?
In my view, the “armed and dangerous” cases have the better view. Terry
and its progeny are ambiguous on the point, but it is clear that under well-
established search and seizure law, broad police discretion to engage in search
and seizures of broad swaths of the population is problematic. Search and
seizure law is concerned not only with specific abuse but the potential for abuse.
I would join the circuits that have declared that a suspect must be both armed
and dangerous.
Having resolved the critical legal question, the question arises whether
there was specific, articulable evidence that Price-Williams was dangerous. I
think not. Price-Williams was not uncooperative, did not engage in threatening
gestures, and was not overtly hostile to police. The majority even recognized that
Price-Williams’s interaction with the officer was “amicable.” He had no history of
violent crime. The original traffic stop arose out of a very minor infraction. Price-
211Iowa Code § 724.7(1).
64
Williams was a Lyft passenger, traveling to see his child. Conclusory statements
to the contrary quickly evaporate when exposed to the sunshine of facts, as
demonstrated by the innocuous videocam footage in this case. Upon considering
the totality of the circumstances, I would conclude that Price-Williams could not
be subject to the Terry pat-down because of the lack of showing that Price-
Williams was armed and dangerous.
V. Conclusion.
For the above reasons, I would conclude that the Terry pat-down in this
case cannot be sustained under article I, section 8 of the Iowa Constitution.