For officer safety or for officer convenience: Only one justifies a pat-down search

ames Holder was a passenger in a vehicle whose driver was arrested for OVI.   The arresting officer asked Holder if he could call someone to pick him up.  Holder stated that his  girlfriend would, and the officer then informed Holder he was going to have Holder sit in the back of the cruiser while the officers inventoried the impounded vehicle.   Before placing Holder in the back of the cruiser, the officer conducted a pat-down and discovered a firearm tucked in Holder’s right from pocket.  At the ensuing suppression hearing, the officer testified that before he places anyone in the back of a patrol car, he conducts a pat-down search for weapons for officer safety.   In May, the Eighth District Court of Appeals found this practice violates the Fourth Amendment.  State v. Holder, 2015-Ohio-1837.  Placing an individual in a patrol car is legitimate (and constitutional) in certain circumstances, i.e. (1) if it prevents officers or the individual from being subject to dangerous conditions and it is the least intrusive means to avoid the dangerous conditions or (2) the officer has an indication the individual poses a danger.  Here, there was no evidence to suggest Holder was exhibiting furtive movements, signs of nervousness, or any indicia that he was carrying a firearm.  Also, the Court noted placing Holder in the cruiser was not the least intrusive means of accomplishing  the stated goals used to justify the search.  Bottom line, the mere fact that a car contains multiple passengers is, by itself, an insufficient basis to justify a search.