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Reasonable Suspicion – Frisk – Warrant Execution – Visitor to Residence

State v. Justin Kolp, 2002 WI App 17
For Kolp: Jennifer L. Abbott

Issue: Whether the police had a reasonable suspicion to frisk Kolp, when he showed up at a residence during execution of a search warrant for evidence of possession of marijuana and which authorized the search of all persons present on the premises.

Holding: Given case law recognition that execution of a search warrant for drugs may give rise to sudden violence (citing State v. Guy, 172 Wis. 2d 86, 96, 492 N.W.2d 311 (1992); and an officer’s testimony that “people involved in drugs often carry weapons, the police “had a reasonable suspicion that a party knocking on the door of a house being searched for drugs could be carrying a weapon.” ¶7. Moreover, executing a warrant at a private residence can be more dangerous than doing so in a public place. ¶¶8-9 (citing Guy, and distinguishing Ybarra v. Illinois, 444 U.S. 85 (1979). Finally, it doesn’t matter that the warrant was for simple possession, not intent to deliver: “we do not distinguish between major and insignificant drug dealers or users in determining whether a frisk is reasonable,” ¶10.

Of course, a frisk is permissible upon reasonable suspicion the person is armed and dangerous. The vice of Kolp is that it all but says that showing up at a house where a search warrant is being executed for drugs provides reasonable suspicion as a matter of law. The seminal case is actually Guy, which stresses the dangers inherent in executing warrants (¶7). Kolp may have recited the officer’s vast experience in associating both drugs and warrants with guns, but there is something more than a bit mechanical about this exercise. There is nothing in this litany which is particularized to the case or person at hand. As suggested, the problem may be traced to Guy, which conflated the authority to detain, provided by Michigan v. Summers, 452 U.S. 692, 702 (1981), with authority to frisk. If you’re looking to challenge this analysis, see Denver Peace and Justice Comm. v. City of Golden (construing Summers and more recent case of Muehler, et al v. Mena, 125 S. Ct. 1465 (2005): “In sum, we hold that Muehler, Summers, and Ritchie do not support an officer’s categorical authority to conduct a pat-down search of any person who seeks to enter an area where a search warrant is being executed. … A detention, however, remains distinct from a search.”). See also Doe v. Groody, 3rd Cir No. 02-4532, 3/19/04 (similarly distinguishing detention from search). Then, too, merely approaching the house may be treated differently, People v. Tate, Ill. App No. 2–04–0968, 8/10/06 (no justification to frisk someone pulling into driveway of house where search warrant being executed; though noteworthy that house not in high-crime area, and warrant was for possession not delivery). Compare,Lopez-Vazquez, DE SCt No. 547, 2007, 8/29/08 (no reasonable suspicion to seize mere visitor to apartment under drug investigation).


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