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Warrants – Probable Cause – Search “All Persons” Provision

State v. Nakia N. Hayes, 196 Wis. 2d 753, 540 N.W.2d 1 (Ct. App. 1995)
For Hayes: William E. Schmaal, SPD, Madison Appellate


Next, Hayes argues that innocent persons could become caught up in the “all occupants” provisions of the search warrant. This obviously is true. But it does not necessarily invalidate the warrant. The test is not whether innocent persons might be present on the premises, but rather whether the presence of likely guilty persons is demonstrated to a reasonable probability. See Anderson, 138 Wis.2d at 468, 406 N.W.2d at 406. As we have already demonstrated, that test is satisfied in this case.We agree with the State’s quote from the Pennsylvania Superior Court inCommonwealth v. Graciani, 554 A.2d 560 (Pa. Super. Ct. 1989), on this point:

Though it is certainly possible, even probable, that innocent third parties who happen to be at the wrong place at the wrong time may be subject to searches under such warrants [i.e., “all persons present” warrants], the nexus between the person to be searched and the natureand seriousness of the criminal conduct suspected on probable cause, nonetheless, renders the probability of their culpable participation in the crime suspected sufficient to warrant a search of their person to prevent the destruction or concealment of evidence of the crime suspected….

For more recent authority, indicating that “the Supreme Court has not addressed the circumstances, if any, under which an ‘all persons’ provision in a search warrant is constitutional,” see Owens v. Lott, 372 F. 3d 267 (4th Cir. No. 03-1194, 6/15/04) (further stressing that although “vast majority” of holdings “conclude that a search warrant authorizing the search of ‘all persons’ found on the premises does not violate the Fourth Amendment per se … courts impose different requirements for what is necessary to sustain the validity of such a warrant”).


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