Ybarra does not fit to prevent a patdown during a house search

The Fifth Circuit held that a person on the premises when a search warrant is executed can be patted down, finding that Ybarra which involved a bar owner and customers, did not neatly apply to search of a house because of a closer, personal relationship, and the patdown of the defendant here was reasonable. United States v. Darensbourg, 236 Fed. Appx. 991 (5th Cir. 2007) (unpublished):

In granting the suppression motion, the district court relied on Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 62 L. Ed. 2d 238 (1979), for the proposition that Darensbourg and Aycock’s presence in the home where a narcotics search was to take place, without more, did not provide individualized suspicion that Darensbourg was either involved in drug trafficking or armed and dangerous. Ybarra held unconstitutional the search of a bar patron, which occurred during the execution of a search warrant authorizing searching the tavern and a bartender for heroin possession. Id. at 88. The Court agreed that police officers had a valid warrant to search the premises, but that warrant “gave them no authority whatever to invade the constitutional protections possessed individually by the tavern’s customers”. Id. at 92.

The circumstances at hand are markedly different. We are mindful that “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”. Id. at 91 (emphasis added); see also United States v. Cole, 628 F.2d 897, 899 (5th Cir. 1980) (mere presence at a dwelling suspected of containing narcotics, by itself, is not enough to establish reasonable suspicion). In Ybarra the bar patrons had no relationship with the bar or the bartender therefore, searching the individuals present at that bar did not comport with Terry‘s requirement for reasonable, articulable suspicion.

In contrast, occupants of a house generally have a closer relationship, and it is not unreasonable to think their relationship might extend to involvement in illegal activities. (Although it was later determined that Darensbourg did not reside at the house, the Officers did not know that previous to the patdown.) Along that line, the Officers had been conducting surveillance of the house and had just arrested Fitzgerald, who, a short time before, had exited the house carrying a large quantity of drugs and a loaded handgun. Based on these factors, reasonable officers could believe that Darensbourg and Aycock could also have been involved in drug trafficking and were therefore possibly armed as well. E.g., United States v. Majors, 328 F.3d 791, 795 (5th Cir. 2003) (“[F]irearms are tools of the trade for those engaged in illegal drug activities.” (internal citations and quotation marks omitted)); see also United States v. Reid, 302 U.S. App. D.C. 374, 997 F.2d 1576, 1579 (D.C. Cir. 1993) (defendant’s proximity to drug apartment being searched and the officer’s concern for safety justified Terry frisk). The patdown was reasonable. (Accordingly, we need not consider the earlier described, alternative claims raised by the Government.)

Defendant was asked if he could be searched, not just patted down, and the search that he consented to was not exceeded. State v. Freeman, 12 So. 3d 714 (Ala. Crim. App. 2007).*

DNA sample taken in 2001 could be used to link the defendant to another more recent crime without violating the Fourth Amendment. Derrick v. Commonwealth, 50 Va. App. 89, 646 S.E.2d 453 (2007).*

Default judgment once denied and then granted against officer was set aside in the interest of doing justice and giving him a chance to pursue his defense. Larry v. Harris, 2007 WI App 132, 734 N.W.2d 169 (2007).*