WV: Search of def on the premises of a place searched by SW was unreasonable without a showing of his nexus; merely being there isn’t nexus

Search of defendant found on the premises of a search of another person’s property was unreasonable because there was no shown nexus to him and the crime under suspicion. Even the occupants of the property weren’t named in the search warrant. This was treated as an “all persons” warrant which can, in proper circumstances, result in the search of others with probable cause. Merely being there isn’t enough without more. An “all persons” warrant without a showing of cause as to the persons found there is tantamount to a general warrant. State v. Barefield, 2018 W. Va. LEXIS 405 (May 17, 2018):

Under the Fourth Amendment to the United States Constitution and Article III, Section 6 of the West Virginia Constitution, the validity of an affidavit for a search warrant is to be judged by the totality of the information contained in it. Under this rule, a conclusory affidavit is not acceptable nor is that for an “all persons” warrant to be valid, the following requirements must be met: 1) that the area to be searched is “small, confined and private”; 2) that “the nature of the criminal activity is such that participants (in general) constantly shift or change” making it “practically[] impossible” to predict who may be there specifically at any given time; and 3) that the items being seized “are of a size or kind which renders them easily and likely to be concealed on the person.” Commonwealth v. Smith, 348 N.E.2d 101, 107 (Mass. 1976); see State v. Covington, 904 P.2d 209, 212 (Utah Ct. App. 1995) (approving Smith factors).

In view of the foregoing, we agree that, under appropriate circumstances, an “all persons” warrant may validly authorize a search of all persons present on the premises to be searched. For such a warrant to survive constitutional muster, however, the supporting affidavit must demonstrate a particularly detailed factual nexus among the criminal activity, the place of the activity, and the persons reasonably likely to be present on the premises. In addition to a factual nexus, the supporting affidavit must more specifically demonstrate 1) that the area to be searched is small, confined, and private; 2) the nature of the suspected criminal activity is such that participants constantly shift and/or change, making it difficult to predict who may be present on the premises at any given time; and 3) that the items which are the subject of the search are of a size or kind which renders them easily concealed and/or destroyed. In reaching this holding, we are mindful of the considerable constitutional interests at stake as evidenced by the particularized showing required. Nevertheless, we offer the following observation, as well-stated by the Iowa Supreme Court:

This standard protects individual rights, while recognizing the interests of law enforcement. It does not mean, however, that police must know with certainty that all persons in the premises will possess evidence of criminal activity at the time of the search. It also does not mean that innocent people will never be caught in the middle of an “all persons” search. The Fourth Amendment only protects people “against unreasonable search and seizure.” Moreover, probable cause does not require absolute certainty, but a probable determination through the eye of a reasonably prudent person.

Prior, 617 N.W.2d at 268 (citations omitted).

The foregoing notwithstanding, however, it is clear that the search warrant at issue did not permit Officer Pifer’s search of petitioner’s person. It is indisputable that the warrant and affidavit in no way reference petitioner. “It is a fundamental rule of law that a warrant must name or describe with particularity the property to be seized and the person or place to be searched.” Commonwealth v. Eichelberger, 508 A.2d 589, 592 (Pa. Super. Ct. 1986). In fact, because the police had arrest warrants for Mr. Salyers, his wife, and Mr. Casto, the warrant did not even reference searching these specific individuals, who owned and/or lived in the house. The warrant authorizes a search of 925 Lynn Street and nothing more. Petitioner’s mere presence at the home at the time the warrant was executed subjected him only to detention while the search was being conducted. “[A] warrant authorizing a search of a building does not authorize a search of those present when the warrant is executed.” Commonwealth v. Wilson, 631 A.2d 1356, 1359 (Pa. Super. Ct. 1993); see also Michigan v. Summers, 452 U. S. 692, 692 (1981) (“[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted”).

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