Search warrants authorize police to enter and search private property for illegal items, typically drugs or firearms.
Often warrants permit police to search “all persons present” or “any person present” at the property who may be in possession of the target contraband.
Such warrants—permitting the search of anyone present—are subject to “rigid scrutiny” here in Massachusetts.
For the search of the person to be legal, a number of criteria must be met.
The guidelines were set forth by the Supreme Judicial Court in the 1976 case of Commonwealth v. Henry Smith, 370 Mass. 335.
According to Smith, an “any person present” or “all persons present” clause is permissible under the following circumstances.
(1) It must carefully delineate the character of the premises, for example, its location, size, the particular area to be searched, means of access, neighborhood, its public or private character and any other relevant fact.
(2) It must specifically describe the nature of the illegal activity believed to be conducted at the location, the number and behavior of persons observed to have been present during the times of day or night when the warrant is sought to be executed.
(3) The application should also state whether any person apparently unconnected with the illegal activity has been seen at the premises.
(4) The warrant itself must limit the locus of the search to the area in which the criminal activity is believed to be confined and, according to the circumstances, may also specify the time for the search.
Additionally, the SJC noted,
In determining the reasonableness of a particular warrant application, it is also appropriate to consider the necessity for this type of search, that is, the nature and importance of the crime suspected, the purpose of the search and the difficulty of a more specific description of the persons to be searched. The risk that an innocent person may be swept up in a dragnet and searched must be carefully weighed
Another oft-cited Massachusetts case is Commonwealth v. Souza, 42 Mass. App. Ct. 186 (1997).
In that case, the Appeals Court concluded that police with an “any person present” warrant had no authority to search the defendant who arrived at the target property while police were in the midst of their investigation.
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