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Fourth Amendment--Search of an Individual Pursuant to a Warrant to Search the Premises Sandra J

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Fourth Amendment--Search of an Individual Pursuant to a Warrant to Search the Premises Sandra J Journal of Criminal Law and Criminology Volume 71 Article 13 Issue 4 Winter Winter 1980 Fourth Amendment--Search of an Individual Pursuant to a Warrant to Search the Premises Sandra J. Wall Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Sandra J. Wall, Fourth Amendment--Search of an Individual Pursuant to a Warrant to Search the Premises, 71 J. Crim. L. & Criminology 558 (1980) This Supreme Court Review is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/80/7104-0558S02.00/0 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 71, No. 4 Copyright © 1980 by Northwestern University School of Law Printed n U.S.A. FOURTH AMENDMENT-SEARCH OF AN INDIVIDUAL PURSUANT TO A WARRANT TO SEARCH THE PREMISES Ybarra v. Illinois, 444 U.S. 85 (1979). In Ybarra v. Illinois,' the Supreme Court clarified and removed the cigarette pack from his pocket. the standard which law enforcement officers must Inside the pack the officer found six tinfoil packets meet before searching persons found upon premises containing a powdery substance which later anal- described in a warrant which does not name them. ysis identified as heroin. Until Ybarra, courts could formulate their own A grand jury indicted Ybarra for unlawful pos- requirements as to the amount of suspicion a police2 session of heroin. His motion to suppress the evi- officer must have before searching such persons. dence was made prior to trial but denied based on Although in reality the Court based its decision on the Illinois detention and search statute, which the paucity of evidence found to justify the search, read as follows: the Court adhered to the principles of Terry v. Ohio,3 announcing that police must have probable cause In the execution of the warrant the person executing to search persons unnamed in a warrant in all cases thd same may reasonably detain to search any person in the place at the time: except those where weapons are suspected. Al- (a) To protect himself from attack, or though the Supreme Court appears to provide a (b) To prevent the disposal or concealment of any clear and definite standard, the question still re- instruments, articles or things particularly 6 described mains whether this determination can be applied in the warrant. effectively by lower courts when the fact situation is not so obviously lacking in suspicion as in Ybarra. The motion was denied under the authority of subsection (b) and the trial court convicted Ybarra I of possession of heroin. On March 1, 1976, a reliable informant told The Illinois appellate court affirmed the convic- police that during the previous weekend, while in tion holding that the trial court constitutionally the Aurora Tap Tavern in Aurora, Illinois, he had applied the Illinois detention and search statute to observed that the bartender had fifteen to twenty- the facts as presented. The court reached its result five tinfoil packets on his person. The informant by comparing and contrasting the facts in Ybarra believed the packets contained heroin.4 The result- with cases containing similar fact patterns resolved ing warrant authorized a search of the premises of by the courts in Illinois and other states." Further- the tavern and the person of the bartender for more, the court adopted the interpretation given contraband and other controlled substances. to the detention and search statute in People v. The eight officers who arrived at the tavern Dukes? The Dukes court held that the statute did performed a "cursory search for weapons" of all not authorize the search of persons "on the premises twelve patrons present. One of those patrons, de- described in the warrant without some showing of fendant Ventura Ybarra, was standing by a pinball a connection with those premises, that the police machine when the police entered. An officer patted officer reasonably suspected an attack, or that the Ybarra down and felt "a cigarette pack with objects person searched would destroy or conceal items 10 in it" in his pants pocket.5 Instead of immediately described in the warrant."' removing the package, the officer searched the The Illinois appellate court held that the packets other patrons. Then the officer returned to Ybarra of heroin could be concealed easily, thus thwarting 1 444 U.S. 85 (1979). 6 ILL. REV. STAT. ch. 38, § 108-9 (1975). 2 See State v. Mendez, 115 Ariz. 367, 565 P.2d 873 7 58 Ill. App. 3d 57, 64, 373 N.E.2d 1013, 1017 (1978). (1977); People v. Dukes, 48 Ill. App. 3d 237, 363 N.E.2d 8 Willis v. State, 122 Ga. App. 455, 177 S.E.2d 487 62 (1977); State v. Loudermilk, 208 Kan. 893, 494 P.2d (1970); People v. Pugh, 69 11. 2d 312, 217 N.E.2d 557 1174 (1972). (1966); See State v. Loudermilk, 208 Kan. 893, 494 P.2d 3 392 U.S. 1 (1968). 1174. 4 444 U.S. at 88. 948 Ill. App. 3d 237, 363 N.E.2d 62 (1977). 5Id. "Id. at 241, 363 N.E.2d at 64. SEARCH PURSUANT TO WARRANT FOR PREMISES the purpose of the warrant, and that the defendant was armed and dangerous, the Court held that the was not an innocent stranger with no connection initial frisk of Ybarra constituted an unreasonable to the premises." In addition, the informant's dis- frisk for weapons under the Terry doctrine.2 Since closure indicated that heroin was being sold in the the preliminary search for weapons violated the tavern. 2 The court was satisfied that no other fourth amendment, the Court cursorily struck evidence was necessary to sustain the search, and down the second search which revealed the pack- therefore upheld the conviction. Ybarra appealed ages of heroin. Although recognizing the ease with to the Illinois Supreme Court but his petition was which heroin and other dangerous drugs can be denied. concealed, and the important governmental inter- The United States Supreme Court granted cer- est in controlling them, the Court refused to adopt tiorari to determine whether the search of the the Terry "reasonable suspicion" standard for gath- tavern patrons violated the fourth amendment. 13 ering evidence pursuant to a search warrant. In- In reversing the conviction, Justice Stewart's 4 ma- stead, it held for the first time that probable cause jority opinion concluded that "[a]lthough the must be found before a person not mentioned in the search warrant, issued upon probable cause, gave warrant may be searched, even if the search is the officers authority to search the premises and limited to the items specifically mentioned in the [the bartender], it gave no authority whatever to warrant. Only when the searching officer reasona- invade the constitutional protections possessed in- bly believes that his life is in danger may a Terry dividually by the tavern's customers." 15 The Court pat down for weapons take place. reiterated that the exception to the probable cause Although seemingly without precedent, the requirement espoused in Terry v. Ohio'6 was narrow: Ybarra decision actually developed a line of reason- that a law enforcement officer may conduct a ing which the Court had adopted in'a previous cursory pat down for weapons if he is in danger opinion, United States v. Di Re.21 In Di Re, the Court and he reasonably believes or suspects that the had struck down a warrantless search of occupants person he has detained possesses weapons. 17 In of an automobile based upon an informant's tip Ybarra, however, the searching officer testified at that they would be purchasing counterfeit gasoline trial that he never felt any personal danger from coupons at a particular time and place. In attempt- the defendant. "Ybarra, whose hands were empty, ing to gather support for the specific search, the gave no indication of possessing a weapon, made government conceded that a warrant authorizing no gestures or other actions indicative of an intent search of a residence would not empower the police to commit an assault, and acted generally in a to search all persons found in it. Rather than manner that was not threatening. ' concede this point in Ybarra, the State of Illinois Given the state's inability to articulate any argued it.22 By adopting a standard of probable 19 facts justifying a reasonable belief that Ybarra length lumber jacket which seems quite appropriate for 1158 Ill. App. 3d at 61, 373 N.E.2d at 1016. However, early March weather in Illinois. Id. the officers admitted that Ybarra in no way looked 2"444 U.S. at 92-93. familiar to them. 21332 U.S. 581 (1948). 12Id at 62, 373 N.E.2d at 1017. 2The Court in Di Re stated: 13The fourth amendment states: The Government says it would not contend that, The right of the people to be secure in their persons, armed with a search warrant for a residence only, houses, papers, and effects, against unreasonable it could search all persons found in it. But an searches and seizures, shall not be violated, and no occupant of a house could be used to conceal this Warrants shall issue, but upon probable cause, sup- contraband on his person quite as readily as can an ported by Oath or affirmation, and particularly occupant of a car. Necessity, an argument advanced describing the place to be searched, and the persons in support of this search, would seem as strong a or things to be seized.
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