Law Enforcement Bulletin 

Question: Can an officer automatically conduct a pat-down before placing a subject in his patrol car?   

Quick Answer: No. Without anything else to justify a pat-down, the automatic search of an individual solely because he is being placed in the cruiser violates the Fourth Amendment. 

State v. Holder, 8^th Appellate District, Cuyahoga County (May 14, 2015).

Facts: While on patrol, an officer observed a vehicle traveling at an excessive speed. The driver was ultimately arrested when he failed the field sobriety test. The defendant, James Holder, was a passenger in the vehicle. Holder was allowed to call his girlfriend and have her pick him up. The officer told Holder he was going to have him sit in the back of his patrol car while officers inventoried the contents of the impounded vehicle. He never told Holder that he was free to leave, and another officer on scene was still attempting to verify his identity. The officer then conducted a pat-down search of Holder and found a revolver in his pocket. The officer testified that he always conducts a pat-down search before he puts someone in his patrol car. The officer also testified that prior to the pat-down he had no indication that Holder posed a danger. There were no furtive movements, signs of nervousness, or any other indication that he possessed a firearm. He also testified that Holder was at all times cooperative, consented to the pat-down search, and that Holder was free to leave prior to the pat-down.

Importance: It violates the Fourth Amendment to conduct a pat-down search solely because you are putting someone in the back of your car. The court found that the pat-down search was not consensual because Holder was not given a choice about whether he could sit in the back of the patrol car, and the officer never said Holder was free to leave. The search was not justified under Terry because there was no reasonable suspicion of criminal activity or that the individual was armed and dangerous. 

Keep in Mind: A search conducted for officer safety before placing someone in a patrol car can be justified when someone is legally detained and there is a possibility of ambush, or when there is a dangerous condition that requires the placement of the individual in the police car. However, you cannot automatically pat-down everyone you place in the back of your cruiser. Under these circumstances, if you don’t tell the subject he is free to leave, the court will likely find the encounter to be non-consensual.