NJ: SW including “all persons present or reasonably connected to the property” didn’t permit search of two men in car down street

Two men parked in a car down the street could not be searched under a warrant for nearby property with an “all persons present or reasonably connected to the property” clause. There was no way to connect them to the place to be searched. State v. Bivins, 2016 N.J. LEXIS 554 (April 20, 2016):

HELD: Because the State did not provide adequate proof that the individuals found in a car had been present at the targeted residence when the warrant was being executed moments before their apprehension, the warrant did not provide authority for the search of the two off-premises individuals.

1. Defendant challenges a search that was commenced by a warrant permitting the police to search for drugs and related contraband at 1256 Park Boulevard, as well as “all persons present reasonably believed to be connected to [the] property.” The type of warrant involved in this matter was first approved in State v. De Simone, 60 N.J. 319 (1972). The De Simone decision explained that the validity of a particular all-persons-present warrant appropriately turns on whether “there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant [in the criminal operation].” Id. at 322. The Court held in De Simone that, “with regard to the Fourth Amendment demand for specificity as to the subject to be searched, there 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.” Ibid. Most courts across the country that have considered a particularity challenge to an all-persons-present search warrant have tracked the compelling rationale for authorizing use of such warrants expressed in De Simone. (pp. 14-15)

2. Defendant claims that the search of his person — merely because he was sitting in a grey Pontiac located houses away from the property to be searched — was beyond the scope of the search warrant issued for 1256 Park Boulevard. Because he was not found and searched on the premises that were the focus of the warrant, he claims his search could not possibly have been based on the warrant. That argument proves too much. Nevertheless, the search cannot be sustained. The State did not provide an adequate evidential basis linking defendant’s presence to the location for which the all-persons-present search warrant was issued. Accordingly, this must be viewed as a warrantless search that lacked probable cause to support the search of defendant when he was found in the parked car. (p. 16)

3. The language of the search warrant bestowed on the executing officers the authority to search all individuals who were present at the residence covered by the all-persons-present warrant. Practically viewed, that must also authorize searches of persons seen departing from the scene of the search, provided that their presence at the scene when the warrant is being executed is proven. The scope of the warrant — covering searches of persons found at the location of the criminal activity — is not limited to the property’s curb or side border. However, there is a hole in the factual narrative linking defendant to 1256 Park Boulevard: neither the communicating officer nor Trooper Moore could present any evidentiary support indicating that defendant and his cousin were the same two men that reportedly were departing the target residence. Because defendant’s presence at 1256 Park Boulevard was not established, the search of his person fell outside the reach of the all-persons-present warrant. Had the State provided the necessary factual link to support that defendant had left the premises as the search was unfolding and was found, shortly thereafter, not far afield in the grey Pontiac, a different result could be supportable based on a reasonable execution of the all-persons-present warrant. (pp. 16-19)

4. The Court parts company with the Appellate Division to the extent that the panel relied on Bailey, supra, 133 S. Ct. 1031. Bailey discusses the limited authority to detain an occupant of a premises for which officers had a search warrant; the case does not circumscribe the authority of officers to search individuals when the executing officers possess an all-persons-present warrant. Based on the language of the search warrant here, officers were authorized to search individuals present at the residence, and that could encompass persons fleeing from the execution of the warrant, provided that their presence at the warrant’s focused location was proven. As already noted, that connection was not proven, but the outcome of this matter is not and should not be viewed as rooted in Bailey. The Court’s analysis is constructed from the foundation that De Simone established. (pp. 19-21)