New York Court of Appeals
On April 1, 2010 the Court Appeals decided the case of People v. Mothersell and dismissed an indictment based on evidence seized during the execution of a warrant that claimed the authority to search all persons present. The Court stated there was a "possibility of a valid any-person-present warrant, it does not appear that this Court has ever actually sustained such an instrument. While such a case may well come before us, it is not this one." (Slip Op. pg 4.)
In Mothersell, the police recovered drugs from Defendant during a strip search while executing a warrant that purported to authorize the search of any persons present at a residence. The search warrant was based solely on an affidavit that described two controlled cocaine buys made by known and reliable informants.
At a suppression hearing, the police officer testified that he search defendant based solely on the authority of the all-person-present warrant and had no other basis for the search. The officer further testified that he had conducted hundreds of all-persons-present searches that routinely included strip searches.
The statutory authority for the all-persons-present warrant comes from New York Criminal Procedure Law 695(2) that states " A search warrant which directs a search of a designated or described place, premises or vehicle, may also direct a search of any person present thereat or therein."
Given its broad scope and apparent risk that innocent people would be searched, the constitutionality of this section had been seriously questioned but the Court of Appeals in People v. Nieves, 36 NY2d 396  held that the statute was not, on it's face, unconstitutional but that it must be "carefully circumscribed" and application of it was "severely limited." Nieves involved the search of a restaurant, open to the public, upon a warrant that indicated it was used for illegal gambling.
The Court in Nieves noted that both the Fourth Amendment to United States Constitution and section 12 of Article I of the New York Constitution were enacted as a reaction the "evils associated with the use of general warrants in England and the detested writs of assistance in the Colonies." Nieves, 36 NY2d at 400.
As reviewed in Mothersell, under Nieves the issuing judge must to exersise "rigid scrutiny" when considering an all-persons-present warrant application. Under Nieves, the search warrant application must address each of the following issues:
1. The Nature of the Premises . Public v Private Places. Even though, the residence in Mothersell was not open to the public as the restaurant was in Nieves, the Court held that a private place, does not alone suffice to demonstrate that a warrant was selective enough to ensure probable cause to believe that people searched would be in possession of contraband. The Court noted that while the consideration was relevant, innocent people were often found in private places.
2. The Nature of the Illegal Activity. The search warrant application in Mothersell, stated only that on two occasions, separated by two weeks an unspecified amount of cocaine had been purchased by informants.
3. The Number and Behavior of the People Present when the Warrant was Proposed to Be Executed. The search warrant application in Mothersell did not contain information about the number of people or their behavior at the the time the police sought to execute the warrant. The warrant authorized the search at "any time day or night."
4. Whether People Unconnected with the Illegal Activity had Been Observed on the Premises. In Mothersell, the warrant application failed to address whether the premises had been use for Innocent purposes.
In Mothersell, the Court found that, most of the information was boilerplate, and the only information that could be used to justify an all-person-present search was the statement of the police officer, that in her past experience it is "not uncommon that persons found in the subject residence could reasonably be expected to conceal cocaine."(Slip Op. pg 6.)
Especially, the Court stated, when a warrant may be executed at any time day or night, the search warrant application must include information, from which, it can be reasonably inferred that it is substantially probable that any person present will be in possession of evidence of the crime.
In closing the Court stated that their decision in Mothersell, did not abandon Nieves and make the all-persons-present search categorically unconstitutional and may still have utility perhaps in the case of "drug factory" or "drug house."