Consider a fairly common situation where a police officer makes a traffic stop of a vehicle. The police officer testifies that he saw the driver shuffling around in the vehicle as if he was trying to hide or grab something, such as a gun or illegal drugs. In this case, the police officer testifies that he suspected that the driver may be armed and/or involved in drug activity so he removes the driver from the vehicle to conduct a brief search for weapons. This is referred to as a patdown for weapons. Can the officer handcuff the driver prior to the brief patdown? Normally, where the officer can testify to specific facts indicating there may be a threat of harm, he/she can briefly handcuff the suspect(s) and briefly pat him/her down to see if he/she is in possession of a gun or other weapon.
However, once the suspect is patted down and no weapons, drugs or other illegal items are found, the officer must remove the handcuffs. Additionally, any basis for a further patdown or more invasive search has disappeared once the patdown has been completed and no threat is apparent.
This came up in a recent drug case south of Jacksonville, Florida where the initial patdown did not produce any guns, drugs or other evidence of criminal activity. However, the police officer kept the suspect in handcuffs. A second police officer came to the scene, patted the suspect down and found a crack pipe and some cocaine. That person was charged with possession of cocaine and possession of drug paraphernalia, but the case was later dismissed because that search was illegal. Once the initial officer conducted the pat down and did not find anything, there was no additional basis for a second patdown. The officer should have removed the handcuffs and allowed the person to leave. The second patdown was illegal, and the evidence seized as a result of that patdown could not be used in court.