W.D.Pa.: “All persons” warrant was overbroad here, but officers get qualified immunity

This “all persons” warrant was overbroad, but the executing officers get qualified immunity. Church Of Universal Love & Music v. Fayette County, 2012 U.S. Dist. LEXIS 124359 (W.D. Pa. August 31, 2012):

On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them.

A majority of state and federal courts addressing the issue have followed DeSimone’s pronouncement that an “all persons” warrant is constitutional if the information given the issuer established probable cause to believe that all persons on the premises at the time of the search are involved in the criminal activity. See, e.g., Owens v. Lott, 372 F.3d 267, 276 (4th Cir. 2004). Otherwise stated, such a warrant is authorized only if “the supporting affidavit establishes probable cause that evidence of illegal activity will be found upon every person likely to fall within the warrant’s scope at the time of execution.” United States v. Swift, 720 F. Supp. 2d 1048, 1056 (E.D. Ark. 2010).

Decisions of the United States Court of Appeals for the Third Circuit are in accord with DeSimone’s approach. See United States v. Guadarrama, 128 F. Supp. 2d 1202, 1208 n. 6 (E.D. Wis. 2001) (citing Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995)). Consistent with DeSimone, in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), our Court of Appeals stated that “a warrant may authorize the search of all persons present if there is probable cause to believe that a premises is dedicated to criminal activity.” Id. at 212 (citing Lott, 372 F. 3d at 276). In doing so, the Court of Appeals cited, with approval, the following recitation of situations in which an “all persons” warrant might be appropriate: “a building or apartment used as a crack house, a barn used as a methamphetamine lab, or a warehouse used exclusively as a storage place for arms.” Id. (quoting Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1997)). Thus, Abbott reflects DeSimone’s suggestion that an “all persons” warrant may be suitable with reference to a limited space, used for a limited purpose.

In this case, the affidavit tendered to the issuing judge did not set forth reasonable grounds to believe that all persons on the premises at the time were engaged in criminal activity, or that the premises were dedicated to criminal activity. The information contained in the affidavit did not suggest a limited space such as a building, barn, or warehouse – instead, it described a variety of apparently open, broadly delineated locations – such as “vendors row,” a grassy dirt road running between the stage and camping areas, or the camping sites themselves.