The Indiana Court of Appeals has overturned a man’s conviction for possession of marijuana due to an illegal pat down search. The man was stopped for driving a vehicle without a seatbelt. The officer took the man’s identification and returned to his police car where he called for backup. A detective arrived on the scene and asked if he could speak to the driver about an ongoing investigation regarding a gang known to carry weapons. The officer who made the stop issued the driver a ticket and advised that he was “free to go.” He then asked the driver if he was willing to go to the police station to speak to a detective in reference to an ongoing investigation. The driver agreed. The officer then advised that he needed to conduct a pat down search for officer safety. When he did so, he discovered 13 grams of marijuana in the driver’s pocket. He was then arrested for possession of marijuana.
It is important to note that the Court distinguished this case from prior cases where a defendant has specifically consented to be transported by police. Where a person agrees to be transported by an officer, a pat down search may be conducted for officer safety. However, if a person not under arrest does not consent to be transported by police, a pat down search may not be conducted. Article 1, Section 11, of the Indiana Constitution protects the right of people to be secure in their persons, home, and vehicles against unreasonable search and seizure. You should never waiver this important right to privacy. Any time you are requested to submit to interrogation, either as a suspect or witness, you should contact an experienced criminal attorney immediately.