{"id":1340,"date":"2007-12-08T15:02:12","date_gmt":"2007-09-10T10:38:25","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-09-10T10:38:25","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1340","title":{"rendered":"“Any and all persons present” violates particularity without nexus being shown"},"content":{"rendered":"

A provision in a search warrant to search “any and all persons present” failed particularity for lack of nexus as to anybody other than the defendant. (Also, the telephonic warrant was properly reconstructed by the testimony of the officer and magistrate and admission of the officer’s notes when the recording failed.) State v. Garcia<\/a>, 140 Wn. App. 609, 166 P.3d 848 (2007):<\/p>\n

Here, there is nothing to establish individualized probable cause for “any and all” of the persons who may have been present in the motel room where drug activity was suspected to occur. While the police may have had generalized suspicions regarding the presence of other persons and their possible involvement, this is not sufficient to create the required nexus. The “any and all persons present” warrant in this case violated the Fourth Amendment’s requirement of particularity.<\/p>\n

The State argues that, even if the warrant for all persons present is invalid, the police nonetheless had the lawful authority to be present based on the search warrant. Upon discovering criminal activity inside the motel room, the police then had independent probable cause to arrest Mr. Munoz Garcia.<\/p>\n

A warrant that authorizes the search of both a person and a place may be severed, and a court may uphold one portion of the warrant even if the other is later determined to be defective. …<\/p><\/blockquote>\n

References to “known drug users” in the affidavit for search warrant was conclusory. Otherwise, however, the information in the affidavit was sufficient for self-verifying detail from informants and first hand information from the officers. Abeyta v. State<\/a>, 2007 WY 142, 167 P.3d 1 (2007).*<\/p>\n

Anonymous tip was insufficient in this case. United States v. Crandell, 2007 U.S. Dist. LEXIS 65962 (D. N.J. September 7, 2007):<\/p>\n

The question presented is whether an anonymous tip that “a black male with dreadlocks and blonde tips[,] wearing a tan shirt and blue jeans” was carrying a gun in the small of his back is, without more, sufficient to justify a police officer’s stop and frisk. This Court finds that it is not. The stop and frisk violated Defendant’s Fourth Amendment right to be free from unreasonable search and seizure. The fruits of the stop and frisk, namely a handgun, were tainted by the unconstitutionality of the stop. Defendant’s motion to suppress the evidence seized after the stop shall be granted.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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