Can You Pat Down a Drug Dealer for Weapons?

Anthony Bandiero
Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

Recorded in Passaic County, New Jersey, from a class hosted at a Hilton in Wayne after a lot of government buildings shut down for COVID. The question came from an officer in Texas with a long fact pattern: hand-to-hand transactions in front of a house, a second guy flashing guns, and a car parked nearby.

Hey guys, it’s Anthony Bandiero here, attorney and senior legal instructor for Blue to Gold Law Enforcement Training, bringing you another roadside chat. A little love to the Hilton in Wayne, New Jersey for hosting us and giving us a space to train some local police officers.

All right, so I have an iPad here that I have to read from, because it’s a little bit of a long fact pattern. The question is, what are the rules for searching a drug dealer for weapons, and his car if he’s near it?

So let’s go over what this fact pattern is. From an officer from Texas. Basically he’s saying, look, we have an undercover unit, it’s observing hand-to-hand transactions in front of this guy’s house. It’s a high crime area. They also got another person who’s in the story who apparently is showing off guns to people, like brag. It almost comes off like he’s just showing off, he’s like hey, look at these guns I got. And also this guy goes to another car and is retrieving guns out of the car and so forth.

So we have a lot of moving parts, but let me just do my best in trying to give you some feedback.

Can you pat down someone you stop for a hand-to-hand drug sale?

So the first question that the officer has is, if we see the hand-to-hand transactions in this high crime area, and we’ve got a reasonable suspicion stop, are we also good to do a pat down?

Well, here’s the general rule that I teach. There’s two players in a drug transaction. There’s the buyer and the seller.

When it comes to patting down the seller, the majority of courts uphold that if you articulate that in your training and experience, drug dealers often have weapons for self-defense. Because if they get robbed for their business proceeds, and it is a business, if they get robbed for their business proceeds they cannot call 911. Well, they should not call 911, I guess. They do sometimes, but they probably should not. Instead they have to resort to what’s called self-help. They are their own police department. So in order to protect themselves, they usually have weapons.

So there you go. In your training and experience, I would articulate, if this is what you believe and so forth, that drug dealers often have weapons associated with the activity of drug dealing, therefore you want to remove that weapon for your safety.

Can you automatically pat down the drug buyer?

Let’s move to the drug buyer. I don’t have a lot of cases that say you can automatically pat down drug buyers. Drug buyers are not presumed to have weapons on them, because they’re just purchasing drugs.

So if you’re going to want to pat down the drug buyer, you’re going to need something more specific. Furtive movements, refusing to take hands out of the pocket. High crime area is going to help you. Previous history, arrest history. You get my point.

Can you search a car just because the dealer owns it?

Okay, second question. What if the drug transaction is occurring next to a vehicle nearby, or they know that this drug dealer owns a vehicle? Can you automatically search it?

The answer is no, not automatically. You’re going to have to articulate why you believe that there’s more evidence or proceeds from the sales in that car. Was he going back and forth to the car and not driving it, just maybe picking something up or dropping something off? Do you have a CI that has seen the dealer getting narcotics from the vehicle? Whatever it is, you’re going to need something more than simply owning a vehicle.

So what I like to tell cops is this. I know you have the motor vehicle exception, you can do warrantless searches with probable cause. But don’t forget that those motor vehicle exceptions are nothing more than doing what the judge would allow you to do.

So if you want to search that car, what are we going to tell the judge? Think about it. What would you tell the judge? Your honor, I want to search that car. And he would say, why? Well, because the CI told me this and I observed that, and you get my point. I need something. But if you just want to search it just because he owns it, the answer is going to be no.

What would you tell the judge?

What about the guy flashing guns near the car?

The third question is, what about this guy flashing the guns? Can we now search that car for more guns and so forth?

Well look, we may have a brandishing claim. Certainly we have enough for reasonable suspicion. And if we engage him on reasonable suspicion, we’re going to want to find out, is this guy licensed? Does he have a concealed pistol license? Is he a felon? He’s also around this drug house. So we definitely have enough to detain him. We’re going to remove the weapons from him.

So we absolutely have enough to detain him, because this is more than just somebody in Texas showing another person their gun. I make a joke about Texas. I say if I show you my gun and you don’t show me yours, those are fighting words.

But there’s something more going on here. We have the high crime area, we probably have some nervousness. As you make contact with this dude with a gun, he’s probably going to lie to you. Hey, do you have a gun on you? He may lie to you. And if he’s lawful he should probably tell you the truth. Yeah, I do, I have a CPL.

But anyway, my point here is, that’s the first thing. Detaining him sounds okay so far.

Can you frisk the car if he can reach it?

And then if he’s near the vehicle, now this is the next question. If he is near the vehicle, can he access it? If the answer is yes, then you probably have a Michigan v. Long type of scenario, where that’s a Supreme Court case that you can basically frisk a vehicle for weapons where that person can go. But that usually means passenger compartments.

Well, you saw him getting the guns from the trunk. You’re making case law in a sense. But I think you’re making good case law, because you know that he could go easily in a modern vehicle, the trunk opens very easily with a push of a button, and he can access weapons to hurt you. So I think we can seize those, too.

But hopefully you’re also going to have more evidence at this time that he is not a licensed concealed holder, and maybe even a felon and so forth. So now you have the automobile exception to come into play.

Wow, got a lot of stuff going on with this scenario, man. I hope I added some clarity. Certainly there’s always going to be more questions and so forth, but I think that’s kind of where I’m at on it.

The short version

• There’s two players in a drug transaction, the buyer and the seller. They are not treated the same.
• For the seller, the majority of courts uphold a pat down if you articulate that in your training and experience drug dealers often have weapons for self-defense.
• The reasoning: if they get robbed for their business proceeds they cannot call 911. They have to resort to self-help. They are their own police department.
• Drug buyers are not presumed to have weapons on them, because they’re just purchasing drugs. You need something more specific: furtive movements, refusing to take hands out of the pocket, high crime area, arrest history.
• You cannot automatically search a car just because the dealer owns it. You need something more than simply owning a vehicle.
• Motor vehicle exceptions are nothing more than doing what the judge would allow you to do. What would you tell the judge?
• A guy flashing guns near a drug house gives you enough for reasonable suspicion and enough to detain him.
• If he can access the vehicle, you probably have a Michigan v. Long type of scenario. But that usually means passenger compartments.
• Extending that to a trunk he was seen retrieving guns from is making case law. I think you’re making good case law.

Related from Blue to Gold

• Can Police Do a High-Risk Stop Just Because a Car Might Be Stolen?
• Vehicle Trunk Search
• Chinaryan versus the LAPD

This article is an edited transcript of Roadside Chat Ep. #65. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.