Legal Commentary

Police Obtain Warrant to Search ?All Persons? Who Enter Apartment Parking Lot Where Drug Selling Commonly Occurs

By Orin Kerr

In Sarasota, Florida, a vacant lot next to an apartment building has become a vibrant open-air drug market. The police are having trouble cleaning it up. So the police tried something they had never tried before: The applied for, and obtained, a warrant to search ?all persons? who parked or set foot in the apartment building parking lot.

During the two-hour raid, a dozen people were searched and, even though officers justified the wide search by telling a judge no ?innocent persons? congregated in the abandoned lot, only four people were charged with drug crimes. An 80-year-old man was among those detained, then released, during the operation

I haven?t seen the actual warrant, and all we have is a press report, but it sounds pretty plainly unconstitutional to me. Under Ybarra v. Illinois, 444 U.S. 85 (1979), the police can?t search anyone who happens to be at the scene when a warrant is executed. In Ybarra, the police executed a warrant at a bar, the Aurora Tap Tavern, where the bartender, a man named Greg, was selling heroin from behind the bar. The police raided the bar and proceeded to ?pat down? the customers at the bar, including Ybarra, for drugs. The police found heroin in Ybarra?s pocket. The Supreme Court suppressed the evidence against Ybarra:

[A] person?s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, 392 U.S. 40, 62 ?63. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seizure another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the ?legitimate expectations of privacy? of persons, not places. See Rakas v. Illinois, 439 U.S. 128, 138 ?143, 148?149; Katz v. United States, 389 U.S. 347, 351 ?352.

Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by ?Greg.? Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search ?Greg,? it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern?s customers.

I suppose the government would argue that this case is unlike Ybarra because the warrant was for ?all persons,? not ?Greg.? But that theory runs into obvious problems with the facial validity of the warrant. From a particularity standpoint, a warrant ?all persons? is as much of a general warrant as you can get for a warrant authorizing a search of persons; and from a probable cause standpoint, I don?t know how the affidavit possibly could have established that there will be probable cause to believe that there is evidence on every particular person who enters a parking lot.

This doesn?t mean the police have no power here, to be clear. They can arrest anyone in the parking lot or vacant lot if they have probable cause. Plus, they can temporarily detain and question anyone if they have specific and articulable facts that the person is engaged in criminal activity. But they can?t just get a blanket warrant and search anyone who enters the area: That?s pretty clearly blocked by Ybarra.

Full post as published by The Volokh Conspiracy on February 17, 2011 (boomark / email).