Yeah, but it's not BS. Arizona v. Johnson explicitly allows the pat-down of a passenger based on no reasonable suspicion of criminal activity on the part of the passenger, only the subjective belief of the officer that the passenger presented a risk that was based solely on the fact that the passenger was from an area of town in which the Crips gang was prevalent. Arizona pushed for a broader ruling allowing this type of a pat-down in a consensual stop but the Court stopped short of that.
Several Circuits have explicitly held that pat-downs are perfectly allowable in a consensual stop (as opposed to a forcible detention): the 8th and 9th for sure. Florida has also held that a pat down is OK in a consensual encounter, and that pat down can go as far as searching a purse.
Judges are very deferential to police officers on pat-downs because they view the intrusion as slight and the need for police officers to be safe is significant. They don't always agree with the reasonable suspicion required for the Terry stop if it isn't a consensual stop, but the distinction between the 2 is often non-existent given the disparity in authority between police officer and civilian.
Interesting, I read up on it:
The police may conduct a pat down search of an occupant if the police reasonably suspect that the individual is armed and dangerous
We have a problem - how do police do their job if they aren't allowed to search suspicious people? On the other hand, if a law if poorly written then it opens it to abuse.
The way I see it is that you are giving up your 4th Amendment right when you get in a car. Like a lot of things it's not fair, but either don't drive or don't carry guns with you.
"Suspicious" is a meaningless word though.
There is a body of case law finding that if an officer attempts to initiate a consensual encounter and the civilian runs, that's "reasonable suspicion" to justify a Terry stop and frisk. In other words, the civilian has the absolute right to not engage the officer, but in exercising that right by running away he gives the officer the right to forcibly detain and frisk him.
There's a body of case law finding that if a civilian consents to an encounter with a police officer, then revokes that consent during the encounter, that's "reasonable suspicion" to justify a Terry stop and frisk. In other words, consent must essentially be open-ended or else it creates "reasonable suspicion".
To be sure, the Supreme Court has never said the above are OK, but they haven't said they aren't OK either. And there is dispute among the different circuits on whether the above is OK, so it isn't like that case law applies to everyone everywhere, but it damn sure applies to lots of people in lots of places in the US.
And then there's the Supreme Court's holding that a consensual stop doesn't become a Terry stop unless the police officer makes it clear by force or command that the civilian isn't allowed to leave. The Supremes have held this even while explicitly recognizing that a civilian might well misinterpret a police officer's requests as commands due to the nature of the officer's authority (gun, badge, uniform, handcuffs, etc.), but that doesn't change a consensual stop into a Terry stop. In other words, the civilian may
think it's a Terry stop when it isn't and perceive the officer's requests as commands because of that misunderstanding. Officers are trained how to avoid converting a consensual stop into a Terry stop by manipulating that apparent authority, because the Terry stop requires "reasonable suspicion" of criminal activity while a consensual stop does not. They are taught to forcefully ask with an authoritative presence, not command. They are taught to forcefully ask for ID, which they are entitled to, not command -- that's to give the civilian the opportunity to revoke consent so the officer can consider escalating the encounter to a Terry stop.
And you have the age-old "furtive movement"/"furtive glance" basis for "reasonable suspicion". What the hell
is a "furtive glance" or "furtive movement" anyway? I can argue that almost anything can be construed as "furtive" from the perspective of the officer -- the only perspective that matters to the courts. It's become the new "I saw a gun butt protruding from under the seat" back-end justification for a search (also known as the "I found something illegal, therefore the search was lawful" defense).
"Reasonable suspicion" is a term that can mean damn near anything.
There's actually quite a lot of stuff written by legal academics that suggests a sliding scale be used for the "reasonable suspicion" hurdle -- "reasonable suspicion" of a misdemeanor carrying a sentence of 6 months or less, for example, can't be the basis for a Terry stop or a frisk. Those papers haven't gained much traction because judges are loathe to place restrictions on officers' attempts to keep themselves safe.
Finally, you're going to start seeing a lot more 4th amendment/2nd amendment battles as the gun guys continue to get state law restrictions on gun possession reduced. At the end of the day, if a police officer engages you in a consensual encounter and asks you if you have a gun on you, and you legally do, does he have the right to pat you down and take that gun from you for the rest of that consensual encounter? The Supremes have given a blanket "yes" in the past. Think about that -- you have the 2nd amendment right to carry a gun so long as you comply with reasonable restrictions, how can that be the basis to create a "reasonable suspicion" that you are "dangerous"?