The State of New York Court of Appeals strictly limited “all persons-present” warrants in People v. Mothersell. All persons-present warrants are used in New York to search individuals present at the scene of a search being conducted pursuant to a search warrant.

The search warrant authorizes the search of a particular building and allows the searching agency to search all people present at the time of the search. The police used an informant to make two controlled buys from a residence. In one case the informant bought from “Tom” and in the other case from an unnamed man. Then the police got a search warrant for the residence and all persons present at the time of the search. The affidavit said that it was likely that all people in the residence were involved in drug transactions.

While the Court of Appeals said that in some circumstances such a warrant might be good, the affidavit in support of such a warrant would have to provide probable cause to believe that each person in the house would be in possession of contraband and that was not done here. Factors that might lead to a legitimate all persons-present warrant would include “the nature of the illegal activity believed to be conducted at the location, the number and behavior of the persons present at the time of day or night when the sought warrant was proposed to be executed, and whether persons unconnected with the illicit activity had been observed at the premises.” Here the warrant was insufficiently detailed to provide probable cause that each person in the residence was in possession of narcotics. It only said that two sales had been made at the residence. It did not indicate who else might be presence or how the building was used. The mere fact that the affiant did not know the names of the narcotics traffickers did not provide probable cause to search each person in the building. In some cases the building might be used as a shooting gallery or as a warehouse for keeping drugs. In those cases an all persons-present warrant may be acceptable. But here there was no evidence of that.

Not only was Mothersell searched despite the fact that the affidavit provided no factual reason to believe that there was probable cause to search him but he was strip searched and narcotics were found in his anus. The Court found that a strip search was particularly invasive and in order to perform one there must be not only probable cause to search but probable cause to believe that he was secreting contraband under his clothes. There was no evidence of that in this case. In fact one of the officers testified that as a matter of course in serving all persons-present warrants those present were strip searched regardless of whether probable cause existed to believe that contraband could be found under their clothes.