Search Warrants for “All Persons on the Premises”

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I have been asked several times about the validity of search warrants that authorize the police to search a particular place and “all persons on the premises.” It sounds as though such warrants are most often requested in drug cases. A number of courts across the country have ruled on the validity of these “all persons” warrants, but as far as I know, there are no decisions on point by any North Carolina appellate court.

Nationally, a minority of courts have taken the view that “all persons” warrants are always, and inherently, in violation of the Fourth Amendment. See generally United States v. Guadarrama, 128 F. Supp. 2d 1202, 1207 (E.D. Wis. 2001) (collecting cases). These courts believe that “all persons” warrants are too closely akin to the general warrants forbidden by the Fourth Amendment.

A substantial majority of courts, however, have taken a more nuanced view. These courts have generally held that such warrants are proper if, and only if, “the facts in the affidavit provide probable cause to believe that anyone in the premises would have on his or her person the evidence that is being sought.” Robert L. Farb, Arrest, Search, and Investigation in North Carolina 134 (3rd ed. 2003).

The leading case supporting this view is State v. Desimone, 288 A.2d 849 (N.J. 1972). The court there argued:

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend on the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense.

Id. at 850. This view has recently been adopted by the Fourth Circuit, see Owens v. Lott, 372 F.3d 267, 376 (4th Cir. 2004), and is shared by the leading commentator, see Wayne R. LaFave, Search and Seizure § 4.5(e), and I would expect our appellate courts to follow suit.

Technically, I don’t think the DeSimone court phrased the issue correctly when it focused on whether “everyone present is a party to the offense.” As a theoretical matter, the proper question is whether everyone present is likely to have evidence of the offense on his or her person. But in the overwhelming majority of cases, that is a distinction without a difference; a person who is a party to the offense and who is at the scene of the offense is likely to have relevant evidence in his or her possession.

So what facts suggest that everyone present at a particular location will be involved in a crime? Courts have identified several recurrent considerations, including the following:

  • The type of location involved. “The more public a place, the less likely a search of all persons will be sustained.” State v. Prior, 617 N.W.2d 260, 265 (Iowa 2000) (internal quotation marks and citation omitted). Businesses and other locations that are open to the public are therefore not likely to be appropriate venues for an “all persons” warrant. The likelihood of innocent customers being present is simply too great. Some courts have likewise declared residences – at least those used as such, as opposed to those used solely for the distribution and consumption of drugs – to be inappropriate locations for “all persons” warrants, because of the likelihood that innocent family members or guests will be present. See, e.g., Marks v. Clarke, 102 F.3d 1012, 1029 (9th Cir. 1996) (“all persons” warrant would not be proper “with respect to a raid on any family home where innocent family members or friends might be residing or visiting”).
  • The time of day, with “all persons” warrants being more likely proper when the officer plainly intends to execute the warrant at night. See, e.g., State v. Jackson, 616 N.W.2d 412, 419 (S.D. 2000).
  • Whether the location appears to be the site of regular, ongoing criminal activity. If a particular structure is regularly frequented by drug dealers and drug users, for example, law-abiding citizens are likely to avoid it, meaning that anyone who is present is likely to be involved with the drug trade in some way. See generally Owens, 372 F.3d at 278-79.

One final thought. The prevailing view is that there are circumstances under which “all persons” warrants may properly be issued. But it seems that such warrants are permissible only when they are superfluous. That is, if there is probable cause to believe that everyone present at a particular location is involved in the offense being investigated, there is probable cause to arrest everyone present, and to search them incident to arrest. So I don’t see what is gained by obtaining an “all persons” warrant. Perhaps I’m missing something. Maybe, for example, it provides some protection from civil liability if a court later determines that there wasn’t probable cause to search a particular person. In any event, readers, enlighten me: if you can think of a good reason to obtain an “all persons” warrant, please post a comment.

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