AK: SW clause to “search any persons” here didn’t enable search of every person who came to the premises during the search

Defendant came to a Fairbanks house when a search warrant was being executed, and he was searched, too, under the auspices of the “search any persons” present reference in the warrant. Defendant’s search was unreasonable under the circumstances. Innocent persons were subject to search without reason. If the house were a crack house, virtually everybody coming would not be so innocent, but this was a single family residence that wasn’t a semi-public crack house. Such a warrant clause requires a reason to search anyone else coming there. Osborne v. State, 2018 Alas. App. LEXIS 42 (Mar. 5, 2018):

Because of the important Fourth Amendment rights at stake, other jurisdictions have established specific criteria for assessing the validity of such broad grants of search authority. We agree in general with the following formulation used by the courts of Iowa and New York:

[The search warrant] application must set out the character of the premises, including its location, size, and public or private character; the nature of the illegal conduct at issue; the number and behavior of persons expected to be present when the warrant is to be executed; whether any persons unconnected with the alleged illegal activity have been seen on the premises; and the precise area and time in which the alleged activity is to take place. … Taken as a whole, the facts presented to the judge must present a substantial probability that the authorized invasions of privacy will be justified by the discovery of the items sought from all persons present when the warrant is executed.

As various courts and commentators have noted, this type of focused inquiry serves the
critical purpose of ensuring that the judicial officer issuing the warrant does not grant the
police the authority to search all persons who may be present, or who may later arrive
on the premises, without “carefully weigh[ing]” the risk that “an innocent person may
be swept up in a dragnet and searched.”

This is not to say that a search-any-person warrant provision could never be supported by a less detailed showing. But when the police seek this type of broad search authority in their search warrant application, the application must, at a bare minimum, demonstrate some acknowledgment that they are asking the magistrate to authorize additional intrusions into the privacy rights of unknown persons. And the application must then provide sufficient information to allow the magistrate to determine whether there is probable cause to support such a broad grant of authority.

For instance, in William E. Ringel’s Searches & Seizures, Arrests and Confessions, § 5.17 (2d ed. November 2017 Update), the applicable law is described as follows:

The warrant must carefully describe the character of the premises and the nature of the illegal activity going on; also, the magistrate must be told how many people frequent the place, when they come and leave, and what they appear to be doing. Another important factor is whether anyone who seems to have no connection with the illegal conduct is ever seen there.

The search warrant application in the present case failed to meet these basic requirements. The application did not flag the “search any person” provision, nor did the application explain why such a provision was being requested. (As we explained earlier, this provision was buried in a boilerplate list of items related to drug sales.)

Nor is Osborne’s case like Davis, where the search warrant application established that the “residence” involved was actually a crack house — i.e., a premises functioning solely as a commercial establishment for the illegal sale and consumption of drugs, thus providing reason to believe that anyone present was engaged in illegal activity.

Here, the premises was a stand-alone house in a residential neighborhood. Although the house was apparently owned by a drug dealer, the search warrant application contained no reports of other individuals coming onto the premises to engage in drug sales or drug consumption. Nor was there any indication that the residence had previously been under police surveillance, or that there had been reports of suspicious traffic coming in and out of the residence.