MAY, J.
Saffold was stopped after police observed him driving seven miles per hour over the speed limit. An officer asked Saffold if he had a gun and Saffold said he did not. Saffold leaned forward and placed his right hand near the floorboard, and the officer removed him from the vehicle because he thought Saffold might be reaching for a weapon. He handcuffed Saffold and patted him down. The officer found a magazine containing live ammunition, then searched the area of the vehicle where Saffold had placed his hand. He found a box of ammunition. The officer searched Saffold again, along with two other occupants of the vehicle, because he “still hadn’t found a handgun.” (Tr. at 25.) He found a gun in Saffold’s waistband.
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We believe the second pat-down search was permissible under Terry because of concern for officer safety.3
[3 The State argued at trial that the searches were permissible on officer safety grounds, and that was the basis for the trial court’s ruling on Saffold’s objections. On appeal, the State further argues the searches were justified on the independent ground that the discovery of ammunition gave rise to “reasonable suspicion of criminal activity.” . . .
It did not. The State offers no explanation why the discovery of ammunition, something Saffold could presumably possess legally, serves to heighten suspicion something illegal was afoot. While the discovery of ammunition might have “heightened . . . concerns for officer safety,” (id.), we reject the State’s assertion it also “heightened . . . the degree of [the officer’s] suspicion of crime.” (Id.)
Nor does the record reflect the officer had any reason to believe Saffold’s possession of a gun would have been illegal. It does not appear the officer knew at the time he subjected Saffold to the second pat-down that Saffold might not have a gun permit. We agree with Saffold that “[t]he existence of a gun is not the equivalent of commission of a crime or of criminal activity. The only arguable relevance of the possible existence of a gun in the car was on the question of officer safety.” (Reply Br. of Appellant at 5-6.)
We accordingly decline the State’s invitation to hold discovery of items a citizen may legally possess, without more, necessarily gives rise to reasonable suspicion that a citizen is probably doing something illegal and may therefore be subjected to progressively more intrusive searches. . . . .
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We cannot say the trial court abused its discretion to the extent it determined the discovery of live ammunition on Saffold’s person immediately after Saffold denied he had a gun supported the officer’s reasonable belief Saffold might be armed and dangerous.4
[4 Saffold correctly notes that at the time of the search of the vehicle and the second pat-down, all three occupants were outside the car, Saffold had been handcuffed, and two other officers were present. “In those circumstances, a reasonably prudent man would not be warranted in believing his safety or that of others was in danger.” (Br. of Appellant at 8.) So, Saffold asserts, the officer should have completed the traffic stop by issuing a speeding ticket.
We acknowledge the recent holding in Arizona v. Gant, 556 U.S. __, 129 S.Ct. 1710 (2009), that police may not conduct a search incident to an arrest for a traffic offense where, as here, the arrestee has been secured and cannot access the interior of the vehicle. Gant does not control, as Saffold’s search was not incident to his arrest, but was instead justified by officer safety concerns. The Gant Court noted an officer may search a vehicle passenger compartment when he has reasonable suspicion the arrestee is dangerous and might access the vehicle to obtain a weapon. Id. at __, 129 S.Ct. at 1721.
To the extent the discovery of the ammunition gave the officer a reasonable concern for safety on the basis Saffold might be armed, that concern would not have been resolved by freeing Saffold from the handcuffs and returning him to his car.]
Nor was the second pat-down illegal under the Indiana Constitution. . . . .
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Nor, under the unusual circumstances of Saffold’s case, can we say it was a violation for the officer to conduct a second pat-down search to determine whether Saffold had a gun after discovering ammunition on Saffold and in his vehicle.
ROBB, J., and VAIDIK, J., concur.