A search warrant was issued for the Aurora Tap Tavern and the person of Greg, the bartender. Upon entering the tavern, the officers announced their purpose and advised all those present that they were going to conduct a “cursory search for weapons.” One of the officers patted down each of the nine to thirteen customers present in the tavern, while the remaining officers engaged in an extensive search of the premises. The officer who frisked the patrons felt what he described as “a cigarette pack with objects in it” on the defendant. He did not remove this pack from the defendant’s pocket. Instead, he moved on and proceeded to frisk other customers. After completing this process the officer returned to the defendant and frisked him once again. The officer relocated and retrieved the cigarette pack from the defendant’s pants pocket. Inside he found six tin foil packets containing a brown powdery substance that was later determined to be heroin.
Whether the frisk of the defendant was justified based on the fact that he was at the scene of a search warrant?
No. Frisks are only authorized if the officer has reason to suspect that the person being frisked is armed and dangerous.
Search warrants do not authorize frisks of persons who, at the commencement of the search, are on the premises subject to a search warrant. A person’s proximity to others independently suspected of criminal activity does not, without more, justify a frisk.
The officer’s justification for the search of the defendant rested on a state statute permitting an officer, in the execution of a search warrant, to reasonably detain and search any person on the premises to either protect himself from attack, or to prevent the disposal or concealment of anything particularly described in the warrant. This statute offends the Fourth Amendment where:
1) No probable cause existed at the time the search warrant was issued for the authorities to believe that any person found in the tavern other than the employee would be violating the law;
2) There was no probable cause to search the defendant at the time the warrant was executed;
3) The customers in the tavern maintained their own protection against an unreasonable search or seizure which was separate and distinct from that possessed by the proprietor of the tavern or by the employee, and;
4) The initial frisk of the customer was not supported by a reasonable suspicion that he was armed and dangerous.
444 U.S. 85, 100 S. Ct. 338 (1979)