“All persons” clause in search warrant did not authorize search of person outside on a cellphone

The police had a search warrant with a clause providing for the search of “and and all persons present.” When they arrived, the defendant, the attorney of a person inside, was outside on a cellphone, and he was searched under the warrant. The warrant did not authorize his search. A Terry frisk, however, was valid under all the circumstances, but the “plain feel” was not because it was apparent that there was no weapon. State v. Boyer, 967 So. 2d 458 (La. 2007):

The warrant does not particularly describe the persons to be searched as required by the Fourth Amendment and La. Code Crim. Pro. art. 162. It only authorizes the search of “the person(s). Curtlidges [sic], vehicles, and residence of 470 Greenville Street.” It does not authorize the search of all persons or all persons found therein or thereon or any persons. Neither the warrant nor the underlying affidavit provide probable cause to believe that anyone standing twenty feet from the mobile home had a physical nexus to the ongoing criminal events. The affidavit supporting the warrant avers that the Lafourche Parish Drug Task Force made a controlled purchase of crack cocaine from Antonio Tillman on October 20, 2005. There is no indication where this [Pg 16] controlled purchase was made, thus it is unknown if the sale occurred in the mobile home, on the premises or at another location. The affidavit further declares that Sgt. LaGraize obtained information from several confidential informants that the buyers of the crack cocaine would exit their vehicles and go to the gray van parked in the backyard of 470 Greenville Street and either Antonio Tillman or Benny Sanders aka “Monkey Man” would sell the crack cocaine to them. The affidavit further provides that when agents were patrolling the area on July 11, 2006, and stopped at 470 Greenville Street because of several people congregating around an illegally parked vehicle, including Antonio Tillman, they observed known drug users near the gray van, along with Benny Sanders. The agents further observed, in plain view, drug paraphernalia inside the van. Considering the totality of the information supplied in the affidavit, there is insufficient particularity in the probable cause sense to support the conclusion that anyone standing twenty feet from the mobile home when the warrant was executed is involved in the criminal activity in such a way to have evidence on his person. From the affidavit, it appears that the drug sales occurred in or near the abandoned van. The State produced no evidence that the defendant was anywhere near the abandoned van, which was in the backyard of the property. Officer Guillot testified that the defendant was standing about twenty feet from the front right corner of the mobile home. Moreover, there is nothing in the underlying affidavit or warrant itself to indicate the judge issued a warrant to search unnamed persons because their mere presence at this particular location would implicate them as a participant in a crime. In deciding the motion to suppress, the trial court specifically observed “[t]o characterize the language of the search warrant as unartful would be a compliment.” Although the trial court found the warrant was sufficient to place law enforcement at the location, the court found the warrant did not authorize the search of everybody within the vicinity of the residence.

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For the foregoing reasons, we find the court of appeal erred in reversing the trial court. We cannot find this search warrant authorized the search of everyone within the vicinity of the residence as that would violate the Fourth Amendment’s proscription against general warrants. Although the initial detention and Terry frisk of the defendant, under the totality of the circumstances, was reasonable, the subsequent search and seizure of the contraband did not meet the plain feel exception to the warrant requirement. Nor was this search justified as one incident to arrest, as the defendant’s actions did not constitute the offense of resisting an officer.