State v. Blevins

ORME, Judge

(dissenting):

I dissent. Although “ ‘the standard of probable cause must be particularized to every person or place to be searched,’ ” State v. Covington, 904 P.2d 209, 211 (Utah Ct.App.1995) (quoting State v. Ayala, 762 P.2d 1107, 1111 (Utah Ct.App.1988)), the affidavit supporting the search warrant in this case failed to establish the requisite nexus between the criminal activity in question and all persons — and their vehicles — arriving at the premises.

“[T]he forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.” United States v. Di Re, 332 U.S. 581, 595, 68 S.Ct. 222, 229, 92 L.Ed. 210 (1948). Thus, in applying the Fourth Amendment’s specificity requirement, “the line between what is and what is not sufficiently particular must be drawn with a view to accomplishment of the constitutional purpose” of “minimizing the danger of unwarranted invasion of privacy.” State v. Gallegos, 712 P.2d 207, 209 (Utah 1985). Accordingly, in determining whether “all persons” warrants comport with the specificity requirement, we must closely examine “the evidence supporting the probable cause for their issuance.” Covington, 904 P.2d at 211.

More particularly, we must “look closely at the facts known to the judge at the time the warrant was issued” to determine whether these facts “justify a belief that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the items sought by the warrant.” State v. Horn, 15 Kan.App.2d 365, 808 P.2d 438, 439 (Kan.Ct.App.1991). See also Marks v. Clarke, 102 F.3d 1012, 1029 (9th Cir.1996) (“[A] warrant to search ‘all persons present’ for evidence of a crime may only be obtained when there is reason to believe that those present will be participants in the suspected criminal activity.”), cert. denied, sub nom. Allen v. Gypsy Church of the Northwest, — U.S.-, 118 S.Ct. 264, 139 L.Ed.2d 190 (1997); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 4.5(e) (1996) (“[T]he question is whether ... the information supplied the magistrate supports the conclusion that it is probable anyone in the described place when the warrant is executed is involved in the criminal activity in such a way as to have evidence thereof on his person.”). In determining whether, such a belief is justified, “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.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979). Instead,

[wjhere 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 seize another or to search the premises where the person may happen to be.

Id. See also Di Re, 332 U.S. at 587, 593-95, 68 S.Ct. at 225, 228-29 (rejecting claim that mere proximity to unlawful activity provides probable cause necessary for search).¹

Because Ybarra prohibits equating nearness with probable cause, to establish the nexus necessary to satisfy the Fourth Amendment affidavits supporting an “all persons” search warrant must particularize probable cause with respect to every person, and, if necessary, their vehicles, within the orbit of the search.

For example, in State v. Covington, 904 P.2d 209 (Utah Ct.App.1995), we concluded there was a sufficient nexus between all persons present and the criminal activity under investigation based on an affidavit showing that all present in a basement, apartment, occupied by several adults with criminal histories and narcotics experience, were likely to have evidence relevant to the investigation on their person.² See id. at 213. Likewise, in State v. De Simone, 60 N.J. 319, 288 A.2d 849 (N.J.1972), the court approved of the particular “all persons” warrant because there was “good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant.” Id. at 850 (emphasis added).

In this case, the majority concludes there was probable cause to search the vehicles of persons arriving at the house based on officer Richard Case’s affidavit conclusorily claiming that, in his experience, “persons arriving at the residence to purchase marijuana and related paraphernalia will often keep these items on their person or in their vehicles.”³ Suggesting, with no factual support whatsoever, that individuals arriving at this residence tend to keep drugs on their persons or in their vehicles hardly particularizes probable cause with respect to every person within the orbit of this search. Indeed, this unsupported assumption stands in stark contrast to the commendably specific bases upon which probable cause rested in the other portions of the affidavit.⁴ The absence of such specificity regarding people and vehicles arriving at the residence demonstrates that the principle actually underlying the “all persons” component of the warrant is the very guilt-by-assoeiation inference forbidden under Ybarra.

Particularly troubling is the majority’s casual assumption that a person coming to the premises is probably a drug “supplier, a sub-dealer or a customer.” “Plainly, at any particular time [the residence in question] may have on its premises any combination of residents, invitees, licensees, or even trespassers, any number of whom may be innocent of any [wrongdoing alleged in the affidavit and thus] for whom no probable cause to search exists.” People v. Jackson, 180 Mich.App. 339, 446 N.W.2d 891, 893 (Mich.Ct.App.1989) (per curiam). See De Simone, 288 A.2d at 851 (distinguishing a permissible “all persons” warrant from one allowing the search of a person in a building where “some innocent person could happen to call upon the occupant of such real property”).

Even assuming it set forth facts establishing that all persons arriving at the premises were probably a supplier, subdealer, or customer, Officer Case’s affidavit fails to explain why every arriving person and their vehicle would possess evidence within the scope of this search warrant before entering the residence where the marijuana and paraphernalia sought by the search warrant were to be found.⁵ In simple terms, how is it possible that persons coming to the residence — as opposed to all persons already at the residence or all persons leaving the residence— will have on their person or in their vehicle evidence of the criminal activity being conducted within the residence?⁶

The theory implicitly embraced by the majority indeed seems to be one of guilt by association: If there is probable cause to believe marijuana sales are occurring in a house, it is reasonable to believe that persons coming to the house are coming to buy marijuana. Such persons obviously do not have — at least, not yet — any of the marijuana being sold from the house and thus sought by the warrant. Nonetheless, as they are most likely coming to buy marijuana, it is fair to assume they are ne’er-do-wells. As such, there could be who-knows-what on their person or in their vehicle parked down the street: concealed weapons; illegal drugs purchased from other sources; open containers of alcohol; counterfeit money; bad checks; child pornography; stolen car stereos, etc., etc. This approach, however appealing it may be at an intuitive level, must be rejected for the simple reason that such theoretical possibilities are no substitute for the particularized showing of probable cause required by the Fourth Amendment to the United States Constitution.

Without such a particularized showing of probable cause, an “all persons” warrant is an unconstitutional general warrant that allows the police unbridled discretion to search the person, car, or home of any person who happens by the residence being searched. Allowing searches upon such warrants expands the limited use of “all persons” warrants beyond that which the Fourth Amendment permits.

In this ease, the evidence supporting the warrant’s issuance failed to establish a nexus between the residence, the alleged drug dealing, and the vehicles belonging to any and all persons arriving at the residence. Consequently, the warrant was not supported by probable cause to search all arriving persons and their vehicles, and the search of defendant’s vehicle violated the Fourth Amendment.

1 . For instance, in People v. Jackson, 180 Mich.App. 339, 446 N.W.2d 891 (Mich.Ct.App.1989) (per curiam), the court examined the constitutionality of a search warrant authorizing the search of " ‘the persons of other individuals on or coming into the premises during the execution of the search warrant.' ” Id. at 892. The warrant was supported by a police officer's affidavit stating that "[i]t has been my personal experience that people on the premises during the execution of a search warrant ... often will attempt to hide the very items which the Search Warrant provides may be seized.” Id. In reversing the trial court’s refusal to suppress evidence obtained from a person arriving at the premises during the search, the court found the Ybarra reasoning controlling and ruled:

While warrant language expressly permitting the search of unnamed persons may not be constitutionally infirm in every instance, the affidavit language cited here does not even go so far as to particularize the nature of the illegal conduct allegedly committed by the people who visit or reside at the specific address in question. Plainly, at any particular time even a private residence may have on its premises any combination of residents, invitees, licensees, or even trespassers, any number of whom may be innocent of any alleged wrongdoing and for whom no probable cause to search exists.

Id. at 893.

2 . In State v. Doyle, 918 P.2d 141 (Utah Ct.App. 1996), so heavily relied on by the majority, the court adjudged “all persons present" during a search to include all persons who. were present at any time during the search rather than just those present at the moment police arrived. See id. at 145. But at least the Doyle defendant was present in some meaningful sense, see id. at 142 ("Doyle exited the car and entered the trailer [home which was the subject of the search warrant].”) (emphasis added), as opposed to the defendant in this case, who was stopped and searched as he headed to the premises and whose vehicle was searched while parked on a public street. The erosion of Fourth Amendment protections countenanced by the majority in this case is typified by the State’s concession at oral argument that, so long as the police ascertained Blevins was heading to the premises identified in the search warrant, under the State’s theory the Fourth Amendment would be no bar to searching him and his vehicle several blocks from the premises. Worse yet, if the officer here had stated in his affidavit that, in his experience, "persons arriving at the residence to purchase marijuana and related paraphernalia will often keep these items on their person or in their vehicles [or at their own residence],” the majority's logic would readily permit the search of Blevins’s residence as well as his vehicle.

4 . Probable cause to search the premises was supported by a specific account of a recent controlled drug purchase at the residence and an informant’s account of the drug-sale enterprise’s hours and method of operation. By contrast, probable cause to search the person and vehicle of persons coming to the residence was based only on the officer's unsubstantiated claim that "persons arriving at the residence to purchase marijuana and related paraphernalia will often keep these items on their person or in their vehicles." The officer recounts no observation of or information concerning such persons, much less any prior occasion to search their person or vehicles so as to form an opinion about the likelihood such visitors will have marijuana and/or paraphernalia on their person. He makes a passing reference to his "training and experience,” but wholly fails to explain what it is in his training and experience that supports such a conclusion. Accepting such conclusions on blind faith is not consistent with Fourth Amendment jurisprudence.

Would the majority find probable cause to search the residence if, without more, the affiant stated that, in his experience and training, marijuana was being sold at the residence? Of course not. They would want to know what facts support that conclusion. The reference to persons coming to the residence and their vehicles is on precisely the same footing: No facts set forth in the affidavit demonstrate probable cause with the requisite particularity.

5 .This is not to say that such a showing is impossible. For example, regarding suppliers, if the affidavit demonstrated that, based upon the officer's observations in light of his experience and training, suppliers tended to arrive at the residence at a given time, or drive particular vehicles, and have marijuana with them to be resold in the residence, there may have been probable cause to search all persons arriving at that time and/or in the vehicles described. Regarding sub-dealers and customers, the affidavit might have established, for instance, that subdealers bring marijuana to the residence to compare before purchasing, or that the typical customer will obtain some marijuana, leave to sample the quality of the product, and then return with the unsmoked marijuana either to buy more (if pleased) or to seek a refund (if dissatisfied). What facts would sufficiently tie arriving visitors to the marijuana sought in this search is entirely speculative since we have an affidavit setting forth no such facts at all.

6 . Although it revealed incriminating evidence, the search of Blevins’s vehicle revealed no evidence relevant to the investigation of marijuana sales from the residence. That is, the affidavit describes the residence as a marijuana distribution center and fails to mention methamphetamine in any way, while the search of Blevins’s vehicle revealed methamphetamine but no marijuana.