In the case of an OVI stop, there is often a passenger or multiple passengers in the car. In this case, the passenger was waiting for a ride and was told to wait in the back of the patrol car. Before putting him in the patrol car, the officer patted him down and found a handgun. He was then charged with possession of a firearm.
Because the passenger was not free to leave and could have waited somewhere besides the back of the patrol car, the search was unreasonable and the firearm charges dismissed.
Officer Pats Down Passenger Before Having Him Wait for Ride in Back of Patrol Car
A driver was pulled over for speeding and suspicion of OVI. The driver could not provide the officer with a driver’s license or proof of insurance. All he had was an expired document for driving privileges.
The driver failed field sobriety tests and was arrested. The driver was placed in the backseat of the cruiser and the officer turned his attention to the defendant in this case, the passenger. The passenger was also unable to produce ID but instead gave his social security number.
The officer explained that the car was going to be impounded and asked the passenger if he could get a ride. He said his girlfriend could come pick him up. The officer told him he was going to have him sit in the back of a patrol car while officers inventoried the contents of the impounded vehicle.
The officer then told the passenger he was going to pat him down for weapons before placing him in the back of the patrol car. During the pat down, the officer discovered a firearm tucked into the passenger’s right front pocket. He was handcuffed and the firearm removed from his pocket.
The officer said he always conducts a pat down before putting anyone in the back of the cruiser for officer safety. There is no written policy requiring a pat down. Further, prior to the pat-down, he had no indication that the passenger posed a danger. He wasn’t nervous and didn’t give any indication that he was carrying a firearm. He was at all times cooperative and consented to the pat-down search
The officer said that the passenger was free to leave prior to the pat-down. However, he was never specifically told that he was free to leave. Moreover, the officer testified that passenger couldn’t wait on the side of the road at the scene because it was not well lit and there was moderate traffic.
Performing a Pat Down of the Passenger Was an Unreasonable Search
This is not a traditional “stop and frisk” case because there was no suspicion here that the passenger was involved in criminal activity or that he was armed and dangerous. Rather, he was patted down simply because he was going to wait in the back of the patrol car for his ride.
The Ohio Supreme Court has found that in some cases, it is reasonable to pat down someone before putting them in the back of a patrol car. The court recognized that “‘it is reasonable that the officer, who has a legitimate reason to so detain that person [in a patrol car], is interested in guarding against an ambush from the rear.’” Lozada at 78.
However, if the reason for putting the person in the police cruiser is solely for officer convenience, then a search for weapons is unreasonable. Here, the stop was at 1:00 AM when the traffic was light. Although the back of the patrol car was probably the safest and best place to wait for a ride, the passenger could have waited outside. Just because the area was not well-lit and there were some cars is not enough “danger” to justify a pat down. He could have waited in a parking lot or somewhere else that did not pose a risk of injury.
Because the passenger was not given a choice about where to wait for a ride and did not feel that he could leave, the pat down was not consensual. Without any suspicion of criminal activity, then, the pat down was unreasonable.
The motion to suppress was granted. The pat-down search was not consensual and was not the least intrusive means of accomplishing the stated goals the officers used to justify the search. Thus, evidence of the firearm was excluded and the charges dismissed.
If you were the passenger during an OVI stop and were subsequently charged with possession of drugs, paraphernalia or other charge, talk to an attorney about your options.