Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training
Recorded in the Blue to Gold studio instead of the usual roadside, and yes, Anthony would like a little props on the studio. The question came in from an officer in Texas whose shift had a debate last night about a midnight stop in a high crime area. It turns into a question about the companion rule.
Hey guys, let’s talk about something called the companion rule when it comes to pat downs.
We have an officer from Texas and he says, “Look, we had a little bit of a debate last night.” And I think that’s great. I love debates. You know, we should be able to defend our positions either way.
So we have an area where there’s a lot of crime. We’ve gotten a lot of guns in this area. So we’re doing proactive patrol. That’s kind of the message here. And then they basically say last night at around midnight they saw several men hanging out together, and they could see that they were smoking marijuana, right? Maybe we’re not sure like who was smoking the marijuana, but it’s pretty clear with the smoke, the smell and so forth that there’s marijuana smoking occurring amongst these, let’s say, three men.
They get a little closer and they see that one suspect is actually holding a marijuana cigarette, right? A suspect behind the marijuana smoker, clearly associated with the person, has a bulge in his pocket, and it could be a firearm. It could be a weapon, right? So we’re concerned about our safety. Maybe it could be a bag of weed.
So this officer then starts to try to pat that guy down, right? And he slaps the cop’s hand away and starts running. All right. We chase him. We catch him. In the meantime, while he was running, he threw down a bag. They opened up the bag under abandonment. There was a gun in the bag, and he says he just found the bag on a bus, you know, and so forth. Of course, we never believe those stories. It’s just improbable.
So now let’s analyze what’s going on here.
Can you detain everyone hanging out with someone smoking marijuana?
The first thing is this whole, you know, can we detain people that are hanging out with marijuana smokers? And the answer is going to be no.
Let me give you an example. You are observing four men near an alleyway, and while you’re observing them, one of the men lights up a marijuana cigarette and is seen passing it back and forth with his friend. But there’s two other people on scene and they’re not partaking in the marijuana. They know that they’re smoking, obviously, because of the smoke and so forth, but they’re not partaking in it.
After several minutes of observing these men smoking that marijuana cigarette, you go up to them and now you’re going to make a detention. Should you detain all four men, or should you only show authority to the two men engaging in the marijuana cigarette smoking? And the answer is only those two men.
Why? Because those other two friends are not committing a crime. Nor is there reasonable suspicion that they are committing a crime. It is not a crime, though it may be dumb, to hang out with somebody smoking marijuana in a public place. Yes, it will get the cops called on you. Yes, it will cause maybe you to be scrutinized by the police and so forth, as far as them looking at you and trying to get your information. But it’s not a crime, okay?
This is really legally no different than two men passing a bottle of Thunderbird back and forth between them, but yet two other friends are on scene and they’re not partaking in it. You would not be able to detain everybody that’s associated with the open container violation.
So I know marijuana may feel different. It may feel more serious, and I think it is. It’s more serious, especially in places like Texas and so forth where marijuana recreational use is still illegal. But just remember that if you’re going to detain somebody, you have to have specific facts as to them, that you have reasonable suspicion that they’re engaged in criminal conduct. And right now you would not have that just based on the facts that I gave you.
What if you can’t tell which one is smoking the marijuana?
Now, here though, it is unclear what the officer knew before he went up to these men. It seems to me that he may have actually had reasonable suspicion as to all of them. In other words, if he knew that these men were huddled together and he can see or smell the marijuana smoke coming from their group, it seems to me that you would have reasonable suspicion, a moderate chance, that all three men are engaged in smoking marijuana in a public place. That’s what I would think. But if you know that that’s not what’s happening, then I would not detain all four men.
Let’s assume that that’s what’s going on here, because if you are allowed to detain all four men, the next issue about patting the person down gets a lot easier, right?
What is the companion rule?
So let’s presume we don’t have reasonable suspicion as to the guy with the bulge in his pocket. Can we pat him down? And the answer is maybe. Depends on what you can articulate.
Now, some states and circuits have what’s called a companion rule. A companion rule is where you are detaining one particular person, but they have a companion that is with them, and you don’t necessarily believe that they’re involved in a criminal activity, but you do believe that they are armed and dangerous in and of themselves. Can you pat them down? The answer is probably, right?
Does Arizona v. Johnson allow a pat down of a companion?
I think the best example of a companion rule that the Supreme Court has upheld is Arizona versus Johnson. What happened in there was a traffic stop. Now, passengers of course are seized under the Fourth Amendment, so that’s a little bit of a monkey wrench in trying to use Johnson for the case at hand. But the point is this.
We know that Johnson was a passenger. Now, he was believed to be a gang member, but Johnson did not commit a traffic violation. Regardless, they got him out of the vehicle, they patted him down, they found a weapon. Johnson argues that hey, you can’t, basically almost like Terry rules don’t apply to me because I’m just a mere passenger. And the US Supreme Court of course said that’s not how this works. He’s seized, but also, in a sense, he could be a dangerous companion to the driver.
Do all states follow the companion rule?
Some states have taken that companion logic and put it into the pedestrian stop context. And these are usually cases where the officer has particular reason as to one individual, but they got a friend who’s hanging around, right? He wants to see where this is all going. He’s not leaving. I guess he could leave, cuz he’s not detained, but he’s not leaving. And officers end up patting him down and we go from there.
Now, the seminal case on there is a federal appellate decision. That’s where they extended Terry pat downs to these companions. However, there are cases, including one out of Alaska, that do not apply a companion rule. They want individualized suspicion for criminal activity as to them. The point is that in the Fifth Circuit I’ve not found any particular case endorsing a companion rule.
I am a little suspect of that, by the way. I want to be a little careful of trying to say, I don’t know if the US Supreme Court would actually uphold some of these companion rules. In other words, some of these cases come off as, hey, if I have reasonable suspicion that you’re committing a crime, fine, and then also that you’re armed and dangerous, I could almost automatically pat down your friend. I don’t think that’s the right rule. Okay?
But I think the right rule is this. If they are associated, okay, and you do have specific facts that they could be armed and dangerous, I do believe the court is going to uphold a pat down to them. Even though you don’t have individualized suspicion for the other person, right, for them as you do for the other person.
Again, I think that the Arizona versus Johnson logic is applicable here. But in Arizona versus Johnson, it wasn’t just because they thought the driver was a dangerous person and therefore they’re going to pat down all the passengers. No, they had reasonable suspicion for armed and dangerous as to Johnson. And I think that’s what the courts are looking for. I think that makes sense.
Now, a good case on this, just to kind of get the tone of, you know, cops are allowed to be safe, they can do pat downs when they have reason to believe a person’s armed and dangerous, is a Fifth Circuit case from 1994. An old school case, but the language in here is very strong. It’s not a companion rule case, but just a case that’s very strong about you being able to investigate your crimes and also be able to be safe.
Was this pat down lawful?
Based on all the stuff that I just told you, applying the logic of these cases to the facts at hand, do I believe that this pat down was lawful? I don’t see enough facts here, right? I think we’re missing something. But I want to give the cops the benefit of the doubt, because usually when I watch body cam or I talk to officers, I usually find out more.
Based on these barebones facts of just, you know, maybe one guy smoking, I don’t see anything else that they’re actually armed and dangerous, right? I mean, even that alone, like even just smoking a marijuana cigarette in a public place, even though it’s in a high crime area, which is common, does that get you really enough to pat down that person? The answer is no. You know, you can’t make these stereotypes. You’re going to have to be specific as to why you think that person is a danger to you.
Now, the bulge in the pocket is good. And the high crime area, guns in this area, the smoking in public, if we thought that he was involved in the marijuana smoking, probably enough. But I think that’s the missing ingredient, is to make sure you connect him to the crime. If we have that, I think we’re fine. If we don’t have that, I think we are too disconnected to make a lawful pat down. Just my intuition here, based on very limited facts.
Regardless, it’s a good conversation. Okay, at least you have been told about this companion rule that exists in some circuits.
The short version
- Can we detain people that are hanging out with marijuana smokers? The answer is going to be no.
- Those other two friends are not committing a crime. Nor is there reasonable suspicion that they are committing a crime.
- This is really legally no different than two men passing a bottle of Thunderbird back and forth between them, but yet two other friends are on scene and they’re not partaking in it.
- A companion rule is where you are detaining one particular person, but they have a companion that is with them, and you don’t necessarily believe that they’re involved in a criminal activity, but you do believe that they are armed and dangerous in and of themselves.
- If they are associated, okay, and you do have specific facts that they could be armed and dangerous, I do believe the court is going to uphold a pat down to them.
- The point is that in the Fifth Circuit I’ve not found any particular case endorsing a companion rule. I am a little suspect of that, by the way.
- I think that’s the missing ingredient, is to make sure you connect him to the crime.
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Source video: Blue to Gold Roadside Chat EP#885, “What is the Companion Rule?” (July 3, 2025).
This article is for training and educational purposes only. It is not legal advice. Companion rule authority varies by state and circuit, so check your own jurisdiction and your agency policy before you act on it.
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- Can Cops Demand ID From Passengers If They Smell Marijuana in the Car?
This article is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
