The D.C. Court of Appeals discusses the scope of the automatic companion rule and finds that it doesn’t have to decide that issue here. There was reasonable suspicion for the companion’s patdown. Jenkins v. District of Columbia, 2020 D.C. App. LEXIS 27 (Jan. 30, 2020):
Mrs. Jenkins contends that the patdown search was not constitutional, and that the female officer could not have reasonably believed that it was lawful, because Mrs. Jenkins’s right not to be searched was made clear by United States v. Di Re, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948) (holding that a passenger’s mere presence in a car believed to contain contraband does not give rise to probable cause to search the suspect for contraband).
As we explain below, we can decide this case on the basis of privilege and therefore need not definitively decide whether the patdown search of Mrs. Jenkins was lawful. In short, we conclude that the officers, including the female officer who searched Mrs. Jenkins, could reasonably have believed that the search was lawful. We also see no evidence in the record to suggest that the police acted in bad faith in searching, or directing the female officer to search, Mrs. Jenkins.
Our analysis rests largely on the fact that “some courts have adopted the so-called automatic companion rule, under which officers may conduct a patdown search of the companion of a lawfully detained suspect even though the officers lack a reasonable suspicion to believe that the companion is armed and dangerous.” State v. Kelly, 313 Conn. 1, 95 A.3d 1081, 1094 n.16 (Conn. 2014). The rule was first articulated in United States v. Berryhill, 445 F.2d 1189 (9th Cir. 1971), in which the court concluded that “[a]ll companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer, are constitutionally subjected to the cursory ‘pat-down’ reasonably necessary to give assurance that they are unarmed.” Id. at 1193. As our court recognized in Trice v. United States, 849 A.2d 1002 (D.C. 2004), “the Berryhill rationale does not depend on the existence of a reasonable suspicion that is particular to the person frisked ….” Id. at 1007. We observed in Trice, id., that this court “relied explicitly on Berryhill” in deciding Mayes v. United States, 653 A.2d 856 (D.C. 1995). We reasoned in Mayes that having “found a pistol on Mayes … the officers had the right to order the remaining occupants out of the car and, at least, to frisk them.” 653 A.2d at 865; see also Lewis v. United States, 399 A.2d 559, 561 (D.C. 1979) (noting that “[t]he fact that his companion had just been arrested for unlawful possession of a firearm is a particularly compelling justification for the frisk of appellant” and quoting Berryhill for the point that “[i]t is inconceivable that a peace officer effecting a lawful arrest … must expose himself to a shot in the back from defendant’s associate because he cannot, on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance”).