In the recent case of Commonwealth v. Powell, 2007 Pa. Super. 298 (Oct. 9, 2007), a three-judge panel of the Superior Court of Pennsylvania consisting of Lally-Green, Klien and Bender, JJ., with the Opinion written by Judge Klein, held that the police had enough reasonable suspicion to conduct a pat down search of a sleeping passenger in a car. While on routine patrol in a known high-crime neighborhood, an officer observed two individuals who appeared to be sleeping in a legally-parked car at approximately 3:48 A.M. One of the officers approached the car, knocked on the window, and observed a bulge on the driver-side passenger’s waistband. The officer testified that the bulge was consistent with the concealment of a firearm, radioed for back-up, and ripped the individual from the car when back-up arrived. They then retrieved a handgun and placed that person under arrest. Although the passenger was still asleep in the vehicle, the officers proceeded to pull him from the car and Terry-frisk him. That search led to the retrieval of a handgun.

The Court held that the officers’ pat down of the sleeping individual was justified because they realized that “they were up to no good” and that it was logical for them to think that “if the driver had a loaded gun, the passenger did as well.” This type of reasoning sounds like nothing more than the guilt-by-association justification for searches and seizures, and will undoubtedly permit more law enforcement officers to search passengers of motor vehicles where they themselves have exhibited absolutely no suspicious behavior.

A companion can be searched if law enforcement officers have reason to believe that an individual is along for the ride with an arrestee in a high crime area. Don’t fall asleep! Officer Freddy Krueger is coming for you.