In Rajaee El-Amin v. Commonwealth of Virginia, 2005 Va. LEXIS 17 (2005), the Supreme Court of Virginia considered the authority of a police officer to conduct a pat-down of a subject based upon their association with a subject found to be in possession of a firearm. While the court declined to adopt an “automatic companion” rule, the court found that the close association with a subject found to be in possession of a gun, would be a factor in supporting a pat-down search.
“On the evening of August 4, 2000, the Richmond Police received an anonymous tip that six young black males were at the corner of Front Street and Fifth Avenue smoking marijuana.” Upon arriving, the officers observed 4 black males and approached them, asking if they could speak to them Two of the males came to the police while two remained in the background. When two other officers arrived, a subject who had remained in the background with El-Amin, turned away from the officers and reached in his waistband. An officer drew his weapon and told the subject to remove his hands from his waistband. When the subject failed to comply, an officer grabbed him, frisked him, and recovered a pellet-gun from his pants. The officer yelled “Gun” to alert the other officers. At that point, “Officer Kuzniewski determined that, because the four individuals were traveling in a ‘pack,’ for ‘safety reasons’ he should pat down the other members of the group…Although he had no particularized safety concerns as to El-Amin prior to learning that the fourth individual had a gun, Officer Kuzniewski conducted a pat-down of El-Amin and found a .38 caliber revolver.” El-Amin challenged the admissibility of the firearm on the grounds that the officer had no particularized suspicion to justify frisking El-Amin.
In analyzing the actions of the officers in this case, the court noted that their initial approach of the four subjects amounted to a consensual conduct since the officers had done nothing to indicate that the four subjects were not free to leave. In arguing that the seizure of the gun was valid, the state argued that officers should be able to frisk the “companion” of anyone found in possession of a firearm. The court, consistent with numerous decisions from other jurisdictions declined to adopt, the “companion rule” for frisks. Instead the court examined whether or not an officer in Kuzniewski’s shoes would have reasonable suspicion to believe that El-Amin was in possession of a weapon.
In upholding the frisk of El-Amin, the court noted that the encounter occurred during the evening in a “high-crime” area; the officer believed that the four individuals were in a group; and, El-Amin and the other subject did not withdraw from the original consensual encounter and remained in close proximity to the officers and other subjects. The court concluded: “on the totality of facts presented here, upon learning that the fourth individual had a hand gun, Officer Kuzniewski was warranted in inferring that the inherent tendency toward violence demonstrated by one group member carrying a gun raised reasonable and particularized safety concerns as to other members of the same group…The totality of the facts in this case-place, time, discovery of weapons, and group activity- validates the pat-down search…”
“Officer Safety” without supporting facts and circumstances will not support a frisk.
Frisks based on the sole reason of “companionship” will not be justified.
Officers should articulate factors concerning the location, time of day, conduct indicating group/gang activity or conduct of group members indicating violence as well as officer experience when documenting a frisk for weapons