Wednesday, September 9, 2009
In its recent opinion in Owens v. Commonwealth, 2009 WL 2705890 (Ky. 2009), the Supreme Court of Kentucky had to resolve a question of first impression in Kentucky: May an officer conduct a pat-down search for weapons of a passenger of a vehicle when the driver has been arrested and the driver possessed illegal narcotics even if there is no independent suspicion that the passenger is guilty of criminal conduct? And the court answered the question in the affirmative by adopting the automatic companion rule.
In Owens, an officer stopped a vehicle driven by Chris Thornton based upon reasonable suspicion that his driver's license had been suspended. The officer's suspicion turned out to be correct, leading him to arrest Thornton and search him incident to that lawful arrest. That search uncovered a suspected crack pipe.
Thereafter, without reasonable suspicion, the officer conducted a pat-down search of Keith Owens, a passenger in Thornton's vehicle. That search uncovered, inter alia, marijuana, and Owens was later charged with, and convicted of, possession of marijuana, first-degree possession of a controlled substance, and being a first-degree persistent felony offender.
Owens thereafter appealed, claiming that the officer's search of him was unconstitutional, and the Supreme Court of Kentucky noted that
Two schools of thought have emerged around this subject. One, known as the automatic companion rule, holds that "[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory 'pat-down' reasonably necessary to give assurance that they are unarmed." Numerous state and federal courts have either expressly adopted the automatic companion rule or have issued decisions that seem to follow its contours. The other school of thought, also used by several courts, is the totality of the circumstances rule, in which the propriety of the frisk is determined considering the totality of the circumstances. Some courts that have rejected the automatic companion rule appear to believe that it improperly creates a guilt-by-association scenario and obliterates the requirement that an officer have a particularized, reasonable, articulable suspicion that a person is engaging in criminal activity or is dangerous before subjecting that person to a frisk.
The court decided to go with the former school of thought, concluding,
We find it illogical that rejecting the automatic companion rule would lead to scenarios whereby an officer could search a vehicle incident to an arrest of the driver, which necessitates removing any passengers from the vehicle, but could not take the additional protective step of conducting a Terry pat-down for weapons of those passengers (unless the officer had independent reasons to suspect the passengers of being dangerous or of being involved in criminal activity). Limiting the right to a make a protective search would increase the chances that an officer could be harmed by a passenger who had been carrying a concealed weapon.
I disagree with this conclusion because I don't see how rejecting the automatic companion rule is illogical. As far as I know, with the exception of the frisks authorized by the automatic companion rile, every frisk of someone besides an arrestee requires some level of suspicion. To me, it seems illogical not to require any suspicion before an officer can search a companion. The court did later attempt to explain its logic by holding that
This "compelling" concern for officer safety is magnified by the fact that this case, like so many others, involves illegal narcotics, thereby bringing into play "[t]he indisputable nexus between drugs and guns[, which] presumptively creates a reasonable suspicion of danger to the officer." Indeed, even the United States Supreme Court has recognized the safety of officers as a matter of paramount importance. And given the small space inside a vehicle and the general presumption that one voluntarily chooses one's traveling companions for the furtherance of a common goal or mission, it would be unreasonable and dangerous for an officer not to be concerned about his or her safety with regard to the passengers of a vehicle after the driver has been arrested.
I think that this makes some sense, but I am not sure that it is enough to justify the automatic companion rule. What I am sure about, though, is that the court was later dead wrong in finding that
adoption of the automatic companion rule provides needed bright line guidance to the bench, bar, law enforcement community, and citizens across the Commonwealth as to what is constitutionally permissible in cases such as the one at hand. The United States Supreme Court, along with commentators, has endorsed bright line rules in dealing with other Fourth Amendment concerns.
The court's support for this claim was the Supreme Court's opinion in New York v. Belton, 453 U.S. 454 (1981). Of course, as readers know, in Arizona v. Gant, the Supreme Court recently rejected the bright line rule that Belton created, making the Supreme Court of Kentucky's opinion much less defensible.