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NY: "All persons present" warrant did not justify search of those without probable cause or a strip search

By John Wesley Hall, Jr.

All persons on the premises warrant did not justify the search of the defendant without showing probable cause. Ergo, the strip search of all persons present was also invalid. People v. Mothersell, 2010 NY Slip Op 2675, 2010 N.Y. LEXIS 59 (April 1, 2010), rev'g People v. Mothersell, 59 A.D.3d 995, 873 N.Y.S.2d 406 (4th Dep’t, 2009): Our conclusion that this all-persons-present warrant is not valid, should not be taken as signifying a departure from Nieves’s initial holding that warrants of this sort are not categorically unconstitutional. Indeed, we think it clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacture or marketing of narcotics (a “drug factory”) or their use (a “shooting gallery” or “drug house”), and that all those present at the time of the contemplated search will probably be in possession of contraband or other specified evidence of illegality...continue to full post

Full post as published by Fourth Amendment on April 04, 2010 (boomark / email).