Pat-Down of Cruiser Passengers

First, allow me to reiterate the law does not allow for "searches" of persons unless 1) you have a warrant; 2) you have consent; 3) the search is made incident to arrest; or 4) the search is qualified by a pat-down revealing a possible weapon. Many recent convictions have been overturned because the officer used the term "search" in their testimony when they were actually describing a pat-down or frisk.

Addressing the topic at-hand, police are not entitled to pat-down a person, absent reasonable suspicion the person may be armed, simply because they have stopped that person pursuant to a lawful Terry stop and placed that person as a passenger in their cruiser. However, in United States v. McCargo, 464 F.3d 192 (2d Cir. 09/13/2006) the court held in cases where the police may lawfully transport a suspect in the rear of a police car, the police may carry out a departmental policy, imposed for reasons of officer safety, by patting down that person. Because the police must have a legitimate law-enforcement reason to transport a suspect, the court saw little danger that policies such as these might be used as a pretext for a suspicionless frisk.

I also want to point out the decision in U.S. v Muhammad, 2010 U.S. App. LEXIS 9575 (May 11, 2010), which held that an officer may remove all suspicious objects from a persons pocket for inspection to determine if the object is a weapon or concealing a weapon. Muhammad contended that because Agent McCrary knew that the object in Muhammad's back pocket was not a weapon or an object concealing a weapon, Agent McCrary could not lawfully remove the wallet from Muhammad's pocket. The record did not support this assertion. Agent McCrary testified that during a pat-down search it is often difficult to tell whether an object is a weapon or might conceal a weapon merely by touching the object. He stated that officers must generally "pull the suspicious object out and actually inspect it" to determine whether the object presents a safety concern. He further testified that he was not certain what the hard four-inch long and three-inch wide object in Muhammad's pocket was, but he said that the item "felt like an object that could conceal a weapon.” The court ruled this pat-down search stayed within the bounds of Terry, and the Fourth Amendment permitted Agent McCrary to remove the object from Muhammad's pocket.

Other Noteworthy Pat-Down Cases

Arizona v. Johnson, No. 07–1122 (2009). Police officers have leeway to frisk a passenger in a car stopped for a traffic violation even if nothing indicates the passenger has committed a crime or is about to do so. The justices accepted Arizona's argument that traffic stops are inherently dangerous for police and that pat-downs are permissible when an officer has a reasonable suspicion that the passenger may be armed and dangerous. The pat-down is allowed if the police “harbor reasonable suspicion that a person subjected to the frisk is armed, and therefore dangerous to the safety of the police and public,” Justice Ruth Bader Ginsburg said.

U.S. v. Baker, 78 F.3d 135, 137 (4th Cir. 1996). An officer may dispense with a pat-down of a person and direct the suspect to lift his shirt. When an officer has reasonable suspicion, this technique will always be less intrusive (because it is only searching one area of the body and the officer does not have to put his hands on the suspect) than a traditional frisk and consequently be justified.

United States v. Walker, Nos. 08-4680/4682, 2010 U.S. LEXIS 16684 (6th Cir. Decided August 12. 2010). If officers believe a suspect is armed, officers may search the contents of their bags.

United States v. Bustos-Torres, 396 F.3d 935, 943 (8th Cir. 2005). Police officers may perform a pat-down search of an individual upon reasonable suspicion that they may be armed and dangerous. . . ."A suspicion on the part of police that a person is involved in a drug transaction supports a reasonable belief that the person may be armed and dangerous because weapons and violence are frequently associated with drug transactions.

U.S. v. Meadows, 571 F.3d 131 (1st Cir. 2009). Although officers may not use handcuffs routinely during investigatory stops, officers are permitted to use handcuffs to protect themselves and others. Officers may handcuff a suspect within the scope of a valid investigatory stop if they reasonably believe the suspect is armed. An officers’ decision to handcuff a suspect before conducting the pat-frisk did not convert the stop into a de facto arrest.