State of Iowa v. Kha Len Richard Price-Williams

• Court: Supreme Court of Iowa
• Decided: April 22, 2022
• Docket: 19-1857
• Status: Published

Opinion

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.