State v. Kinney

62 L.Ed.2d at 245

-
246, the United States Supreme Court held that a warrant authorizing the search of
a public tavern did not authorize police to search individuals not mentioned within
the warrant. The court also held that, although police had probable cause to search
the establishment and the individual who was named in the warrant, the defendant’s
“mere propinquity” to those suspected of crime did not independently create
probable cause to search him.

Id. at 91

62 L.Ed.2d at 245

. Thus,
the decision in Ybarra was grounded upon a lack of probable cause, not upon the
failure to describe the defendant with particularity. The court expressly left for
another day the consideration of “situations where the warrant itself authorizes the
search of unnamed persons in a place and is supported by probable cause to believe
that persons who will be in the place at the time of the search will be in possession
of illegal drugs.”

444 U.S. at 92

62 L.Ed.2d at 246, fn. 4

.
Doing so, the court noted that such a warrant might be constitutionally prohibited
as an “open-ended” or “general” warrant.

Id.

 In the instant case, unlike Ybarra,
the warrant explicitly included “any person” on the premises within its scope. Thus,
the question left unaddressed by the Ybarra court is now squarely before this court.
       {¶ 17} The     Ohio     Association     of   Criminal    Defense     Lawyers
(“Association”), as amicus curiae, contends that the warrant used to search
defendant was just such a “general warrant.” Thus, the Association urges us to
invalidate the warrant as violating the particularity requirement of the Fourth
Amendment. It argues that the warrant was invalid, regardless of whether the police




                                          7
                               SUPREME COURT OF OHIO




showed, in the supporting affidavit, that probable cause existed for every unnamed
person who might be present in the apartment. Even if issued upon probable cause,
the Association contends, a general warrant would still violate the Fourth
Amendment.
                             Drug Trafficking Residences
          {¶ 18} “Illicit drug trafficking” is “now of epidemic proportion.” People v.
Thurman (1989),

209 Cal.App.3d 817, 822

257 Cal.Rptr. 517, 519

. Individuals
who are present in a drug trafficking residence raise special concerns for law
enforcement. A drug trafficking residence often has more than one person on the
premises. Individuals may be present for the preparation and packaging of the
drugs. Some are present to collect cash, others to protect drug dealers. Some have
come to purchase drugs. Most occupants are armed and dangerous. Combined,
these concerns involve the safety of all individuals on the premises, since drugs and
concealed weapons are involved. This is far different from a general exploratory
search.
          {¶ 19} In Commonwealth v. Smith (1976),

370 Mass. 335

348 N.E.2d 101

,
the Massachusetts Supreme Judicial Court held that a warrant authorizing the
search of “any person present” was valid where the affidavit showed that heroin
was being sold from an apartment subjected to search under warrant.

370 Mass. at 344

. In that case, as here, both information from an informant
and police surveillance indicated a steady flow of narcotics purchasers in and out
of the apartment.

370 Mass. at 343

. The Massachusetts
court reasoned that “the insidious nature of the contraband (heroin) was such as to
render it more likely than not that the participants would act in secret and to the
exclusion of innocent persons and possible informants.”

Id. at 343-344

. Thus, the court concluded that the issuing magistrate could reasonably
have inferred that no innocent parties would be present during the search.

Id. at 346

348 N.E.2d at 107, fn. 12

.




                                           8
                                January Term, 1998




       {¶ 20} We find the logic of the Smith opinion compelling. A “crack house”
is used primarily, or even exclusively, for the sale and consumption of crack. In
addition, we find it significant that this same residence was searched and cocaine
and other contraband were found just five days prior to the search in question.
Clearly, even the first search did not deter further drug activity on the premises.
Therefore, there was an overwhelming probability that anyone present possessed
crack/cocaine or other contraband.
                                  Probable Cause
       {¶ 21} There is some authority for the proposition, adopted in Tucker and
advanced by amicus curiae, that an “all persons” provision is, of itself, too general
in its scope and, therefore, violates the Fourth Amendment. The prevailing view,
however, is that such a warrant provision may be upheld under limited
circumstances. See 1 Ringel, Searches & Seizures, Arrests and Confessions (1988)
5-28, Section 5.6(e); 2 LaFave at 545-546. Where there is probable cause to support
the search of every person within the warrant’s scope, it will not be held invalid.
We believe that the prevailing view is the correct one. Unless the location named
in a warrant is too large or inhabited by a multitude of people, a warrant confined
to individuals in that location should be particular enough to avoid the unfettered
and arbitrary power contemplated in the ban against general warrants. As the New
Jersey Supreme Court remarked, “[T]here is none of the vice of a general warrant
if the individual is thus identified by physical nexus to the on-going criminal event
itself.” State v. DeSimone (1972),

60 N.J. 319, 322

288 A.2d 849, 850

. See, also,
State v. Reid (1994),

319 Ore. 65, 71

872 P.2d 416, 419

 (“ ‘Persons present’ is
definite and unambiguous.”).
       {¶ 22} Clearly, probable cause will more likely exist to support the search
of all persons within a private residence than it will for a search of all persons in a
place open to the public. In public places, the substantial likelihood that a person
with no connection to criminal wrongdoing might be subjected to search makes




                                          9
                             SUPREME COURT OF OHIO




most claims of probable cause unsustainable. Accordingly, courts have tended to
follow the rule, “The more public a place, the less likely a search of all persons will
be sustained.” 1 Ringel at 5-48.
       {¶ 23} Similarly, a search for illegal drugs is more likely to support a search
of all persons than a search for evidence of many other crimes. As Presiding Judge
James D. Sweeney recognized in his concurring opinion, probable cause would not
likely support the search of all persons on a premises if police were looking for
stolen objects that were not easily concealed or transported.
                                    Particularity
       {¶ 24} Nonetheless, a warrant should still be considered too general if it
subjects to search or seizure individuals against whom no probable cause exists. In
this regard, the purposes of the particularity requirement and the probable cause
requirement intersect. The United States Supreme Court has explained that “[b]y
limiting the authorization to search to the specific areas and things for which there
is probable cause to search, the requirement ensures that the search will be carefully
tailored to its justifications, and will not take on the character of the wide-ranging
exploratory searches the Framers intended to prohibit.” Maryland v. Garrison
(1987),

480 U.S. 79, 84

107 S.Ct. 1013, 1016

94 L.Ed.2d 72, 80

. Thus, the
requirement of specificity tailors the authority of a warrant so that those against
whom no suspicion lies will remain outside its scope.
{¶ 25} Accordingly, an “all persons” clause may still be “carefully tailored
to its justifications” if probable cause to search exists against each individual who
fits within the class of persons described in the warrant. The controlling inquiry is
whether the requesting authority has shown probable cause that every individual on
the subject premises will be in possession of, at the time of the search, evidence of
the kind sought in the warrant. If such probable cause is shown, an “all persons”
provision does not violate the particularity requirement of the Fourth Amendment.
Conversely, if the supporting affidavit does not show probable cause to search

10
January Term, 1998

every person on a premises, an “all persons” authorization would violate both the
particularity and probable cause requirements of the Warrant Clause.
{¶ 26} This interpretation of the particularity requirement coincides with an
understanding that the Fourth Amendment was intended to prohibit only
unreasonable searches and seizures. Circumstances may not always permit police
to name or otherwise describe persons whom they, nevertheless, have ample cause
to suspect of criminal wrongdoing because of those persons’ presence in a
particular place. Granting the government a means of investigating crime under
these circumstances does not offend our understanding of what is reasonable. There
may be some suggestion of unreasonableness if innocent people, who are not
properly suspected of wrongdoing, are unfairly caught in the dragnet. Nevertheless,
with any warrant, some danger always exists that innocent people will be subject
to search for probable cause. This is so simply because probable cause does not
require absolute certainty. See State v. Halczyszak (1986),

25 Ohio St.3d 301, 309

,
25 OBR 360, 367,

496 N.E.2d 925, 935

.
       {¶ 27} The Constitution has established the test of probable cause as the
fulcrum upon which the interests of individual liberty and the legitimate aims of
law enforcement will balance. When a magistrate has determined that every person
at a particular location is, upon the evidence, properly suspected of wrongdoing or
of holding important evidence, the same standard has been applied. Thus, the
danger of reaching innocent parties does not, in this regard, render an “all persons”
provision in a warrant unreasonable.
       {¶ 28} For these reasons, we reject the contention that the warrant through
which defendant was searched was invalid, as a general warrant, without regard to
any question of probable cause.
                             “All Persons” Provision
       {¶ 29} We must now turn to the question of whether probable cause
supported the “all persons” provision in this instance. The state argues that a per




                                         11
                             SUPREME COURT OF OHIO




se rule should permit the use of “all persons” provisions when applied against
residences where illegal drugs are being sold. Because an individual can so easily
conceal illegal drugs on his or her person, circumstances involving illegal drugs
will more likely give rise to probable cause for the search of people.
       {¶ 30} The court of appeals certified this case as being in conflict with State
v. Tucker (1994),

98 Ohio App.3d 308

648 N.E.2d 557

. However, we find that
Tucker is distinguishable. The only facts in Tucker supporting the issuance of the
search warrant were (1) a detective with unknown experience signed a request for
a search warrant to search a suspected drug trafficking residence; (2) the search
warrant was for the residence, a particular person, and for “all persons [who] are at
the residence during the execution of the search warrant”; and (3) Tucker was
present during the execution of the search warrant.

98 Ohio App.3d at 309

648 N.E.2d at 557-558

.
       {¶ 31} Unlike this case, the Tucker facts do not show that the private
residence was very likely a drug trafficking house and persons within could be
armed and dangerous. The facts did not establish the law enforcement experience,
especially the narcotics experience of the detective, behind the affidavit. Further,
the facts in Tucker did not show whether a controlled purchase had been made, or
whether an informant had been used, and, if so, the reliability of the informant. In
addition, Tucker did not demonstrate that the police had performed surveillance of
the drug trafficking residence, or that police had ever searched the residence before,
or that police knew the defendant prior to the search. Therefore, we find that Tucker
is clearly distinguishable from the case at bar.
       {¶ 32} We note that because two pages were omitted in the transmittal of
the record from the trial court to the court of appeals, the court of appeals relied on
the incorrect supporting affidavit when it referred to Detective Ehrbar’s affidavit.
We have since obtained the missing pages directly from the trial court and find that
in referring to the proper supporting affidavit, our conclusion is even stronger.




                                          12
                                January Term, 1998




Detective Ehrbar’s affidavit supported the first search warrant which was obtained
on February 22, 1996 and executed on February 23, 1996, with an arrest made. The
search warrant at issue in this case was obtained on February 28, 1996 and executed
that same day. The supporting affidavit for the February 28, 1996 search warrant
was attested to by Detective Parkinson.
       {¶ 33} For the most part, the facts presented in Detective Parkinson’s
affidavit tend to support the “all persons” provision in the warrant at issue. His
affidavit showed that the place to be searched was a private residence, not a public
place. Furthermore, the magistrate could sensibly infer that the residence was of
modest size from information within the affidavit—such as the facts that it was an
apartment, its neighborhood address, and its location on the second floor. See
Commonwealth v. Smith (1976),

370 Mass. 335, 343

348 N.E.2d 101, 106

. The
small, private nature of the premises lends support to a determination of probable
cause. See

id. at 344

. Moreover, because the affidavit showed
a pattern of people coming to the apartment for short periods, during daytime and
nighttime hours, it appeared probable on the face of the affidavit that anyone within
the apartment would have been aware that drug sales were occurring.
       {¶ 34} The affidavit gave clear indication, also, of the nature of illegal
activity occurring within the apartment, by providing information about the
controlled purchase of cocaine through an informant. The nature of the traffic
described, with purchasers staying in the apartment for short intervals, reinforced
the need for an “all persons” warrant. Further evidence of the necessity of an “all
persons” warrant is Detective Parkinson’s reference to the February 22, 1996 search
warrant that was executed at the same apartment where police seized cocaine and
other contraband and made an arrest. Based on these facts, police could not identify
who would be in the apartment at the time of the search, but they could be fairly
certain that individuals coming to the apartment were somehow involved in the
trafficking of cocaine.




                                          13
                             SUPREME COURT OF OHIO




       {¶ 35} The fact that police sought to execute the warrant at night also tends
to support the form of the warrant. The possibility of innocent parties being present,
either social visitors or work people, was comparatively less at night than it would
be during daylight hours. Compare State v. Wynne (Minn.1996),

552 N.W.2d 218, 221

 (“During the day, relatives, guests or hired workpeople could have been present
on the residential premises to be searched.”).
       {¶ 36} Nevertheless, although drug sales from a residence are more likely
to create probable cause for a search of all persons within, we reject the per se rule
that would find probable cause in all such cases. It is not particularly difficult to
conceive of residential settings in which drugs are being sold, but within which
probable cause does not extend to all the persons present. Indeed, many courts
reviewing “all persons” warrants have found no probable cause in particular
settings fitting that description.   Moreover, aside from the inherent risk of
overgeneralization, a per se rule would prevent the individualized determination of
probable cause by “neutral and detached magistrates.”              Without such a
determination, the resulting warrant would not satisfy the requirements of the
Fourth Amendment. See Coolidge v. New Hampshire (1971),

403 U.S. 443

, 449-
450,

91 S.Ct. 2022, 2029

29 L.Ed.2d 564, 573

 (Determination of probable cause
must be by a “neutral and detached magistrate.”); cf. Richards v. Wisconsin (1997),

520 U.S. 385

, ___,

117 S.Ct. 1416, 1421

137 L.Ed.2d 615, 623

 (“[A] blanket rule
impermissibly insulates these cases from judicial review.”).
                         Standard for Issuance of Warrant
       {¶ 37} Having rejected a per se rule that would support the command of the
warrant to search all persons, we must address whether the particular facts
described in Detective Parkinson’s affidavit supported the form of the warrant used.
As already explained, the proper standard for determining this question is whether
police demonstrated probable cause to the magistrate that every individual on the
subject premises would be in possession of, at the time of the search, evidence of




                                         14
                                January Term, 1998




criminal misconduct. Nevertheless, having announced this standard, we believe
that further guidelines may be necessary to aid in its application. Overly elementary
determinations of probable cause in issuing “all persons” warrants may jeopardize
the constitutional principle set forth in Ybarra, that “mere propinquity to others
independently suspected of criminal activity does not, without more, give rise to
probable cause to search [a] person.”

444 U.S. at 91

62 L.Ed.2d at 245

. Furthermore, issuing magistrates should recognize that probable cause must
exist as to any person with a substantial possibility of being on the premises being
searched. Otherwise, the “all persons” provision will constitute an invalid general
warrant.
       {¶ 38} We find that the guidelines set forth by the New York Court of
Appeals in People v. Nieves (1975),

36 N.Y.2d 396

369 N.Y.S.2d 50

330 N.E.2d 26

, are well considered and helpful for making probable cause determinations on
an “all persons” warrant. See Smith,

370 Mass. at 345

348 N.E.2d at 107

 (adopting
the Nieves guidelines). In Nieves, the New York court expressed the following:
       “An application for this type of warrant must be subjected to rigid scrutiny
by the independent Magistrate. It must carefully delineate the character of the
premises, for example, its location, size, the particular area to be searched, means
of access, neighborhood, its public or private character and any other relevant fact.
It must specifically describe the nature of the illegal activity believed to be
conducted at the location, the number and behavior of persons observed to have
been present during the times of day or night when the warrant is sought to be
executed.
       “The application should also state whether any person apparently
unconnected with the illegal activity has been seen at the premises. The warrant
itself must limit the locus of the search to the area in which the criminal activity is
believed to be confined and, according to the circumstances, may also specify the
time for the search.




                                          15
                             SUPREME COURT OF OHIO




       “In determining the reasonableness of a particular warrant application, it is
appropriate to consider the necessity for this type of search, that is, the nature and
importance of the crime suspected, the purpose of the search and the difficulty of a
more specific description of the persons to be searched. The risk that an innocent
person may be swept up in a dragnet and searched must be carefully weighed.”