Fundamental Cases on the Fourth Amendment
Adam J. McKee
JUSTICE STEWART delivered the opinion of the Court.
An Illinois statute authorizes law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant. The question before us is whether the application of this statute to the facts of the present case violated the Fourth and Fourteenth Amendments.
On March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a “Complaint for Search Warrant” to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and:
“3. The informant related . . . that over the weekend of 28 and 29 February he was in the [Aurora Tap Tavern, located in the city of Aurora, Ill.] and observed fifteen to twenty-five tin-foil packets on the person of the bartender `Greg’ and behind the bar. He also has been in the tavern on at least ten other occasions and has observed tin-foil packets on `Greg’ and in a drawer behind the bar. The informant has used heroin in the past and knows that tin-foil packets are a common method of packaging heroin.
“4. The informant advised . . . that over the weekend of 28 and 29 February he had a conversation with ‘Greg’ and was advised that ‘Greg’ would have heroin for sale on Monday, March 1, 1976. This conversation took place in the tavern described.”
On the strength of this complaint, the judge issued a warrant authorizing the search of “the following person or place: . . . The Aurora Tap Tavern. . . . Also the person of ‘Greg’, the bartender, a male white with blondish hair appx. 25 years.” The warrant authorized the police to search for “evidence of the offense of possession of a controlled substance,” to wit, “heroin, contraband, other controlled substances, money, instrumentalities, and narcotics, paraphernalia used in the manufacture, processing, and distribution of controlled substances.”
In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, 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 then proceeded to pat down each of the 9 to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises.
The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first patdown of Ybarra, the officer felt what he described as “a cigarette pack with objects in it.” He did not remove this pack from Ybarra’s pocket. Instead, he moved on and proceeded to pat down other customers. After completing this process the officer returned to Ybarra and frisked him once again. This second search of Ybarra took place approximately 2 to 10 minutes after the first. The officer relocated and retrieved the cigarette pack from Ybarra’s pants pocket. Inside the pack he found six tinfoil packets containing a brown powdery substance which later turned out to be heroin.
Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance. He filed a pretrial motion to suppress all the contraband that had been seized from his person at the Aurora Tap Tavern. At the hearing on this motion the State sought to justify the search by reference to the Illinois statute in question. The trial court denied the motion to suppress, finding that the search had been conducted under the authority of subsection (b) of the statute, to “prevent the disposal or concealment of [the] things particularly described in the warrant.” The case proceeded to trial before the court sitting without a jury, and Ybarra was found guilty of the possession of heroin.
On appeal, the Illinois Appellate Court held that the Illinois statute was not unconstitutional “in its application to the facts” of this case. The court acknowledged that, had the warrant directed that a “large retail or commercial establishment” be searched, the statute could not constitutionally have been read to “authorize a ‘blanket search’ of persons or patrons found” therein. The court interpreted the statute as authorizing the search of persons found on premises described in a warrant only if there is “some showing of a connection with those premises, that the police officer reasonably suspected an attack, or that the person searched would destroy or conceal items described in the warrant.”
Accordingly, the State Appellate Court found that the search of Ybarra had been constitutional because it had been “conducted in a one-room bar where it [was] obvious from the complaint . . . that heroin was being sold or dispensed,” because “the six packets of heroin . . . could easily [have been] concealed by the defendant and thus thwart the purpose of the warrant,” and because Ybarra was not an “innocent strange[r] having no connection with the premises.” The court, therefore, affirmed Ybarra’s conviction, and the Illinois Supreme Court denied his petition for leave to appeal. There followed an appeal to this Court, and we noted probable jurisdiction.
There is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from “Greg,” would be violating the law. The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from “Greg” or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the Aurora Tap Tavern.
Not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.
It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed. But, a person’s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seizure another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the “legitimate expectations of privacy” of persons, not places.
Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by “Greg.” Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search “Greg,” it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern’s customers.
Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio. If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.
We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons. When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. At the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.
The Terry case created an exception to the requirement of probable cause, an exception whose “narrow scope” this Court “has been careful to maintain.” Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. Nothing in Terry can be understood to allow a generalized “cursory search for weapons” or, indeed, any search whatever for anything but weapons. The “narrow scope” of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.
What has been said largely disposes of the State’s second and alternative argument in this case. Emphasizing the important governmental interest “in effectively controlling traffic in dangerous, hard drugs” and the ease with which the evidence of narcotics possession may be concealed or moved around from person to person, the State contends that the Terry “reasonable belief or suspicion” standard should be made applicable to aid the evidence-gathering function of the search warrant. More precisely, we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on “compact” premises subject to a search warrant, at least where the police have a “reasonable belief” that such persons “are connected with” drug trafficking and “may be concealing or carrying away the contraband.”
Over 30 years ago, the Court rejected a similar argument in United States v. Di Re. In that case, a federal investigator had been told by an informant that a transaction in counterfeit gasoline ration coupons was going to occur at a particular place. The investigator went to that location at the appointed time and saw the car of one of the suspected parties to the illegal transaction. The investigator went over to the car and observed a man in the driver’s seat, another man (Di Re) in the passenger’s seat, and the informant in the back. The informant told the investigator that the person in the driver’s seat had given him counterfeit coupons. Thereupon, all three men were arrested and searched.
Among the arguments unsuccessfully advanced by the Government to support the constitutionality of the search of Di Re was the contention that the investigator could lawfully have searched the car, since he had reasonable cause to believe that it contained contraband, and correspondingly could have searched any occupant of the car because the contraband sought was of the sort “which could easily be concealed on the person.” Not deciding whether or not under the Fourth Amendment the car could have been searched, the Court held that it was “not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled.”
The Di Re case does not, of course, completely control the case at hand. There the Government investigator was proceeding without a search warrant, and here the police possessed a warrant authorizing the search of the Aurora Tap Tavern. Moreover, in Di Re the Government conceded that its officers could not search all the persons in a house being searched pursuant to a search warrant. The State makes no such concession in this case. Yet the governing principle in both cases is basically the same, and we follow that principle today. The “long-prevailing” constitutional standard of probable cause embodies “‘the best compromise that has been found for accommodating [the] often opposing interests’ in ‘safeguarding citizens from rash and unreasonable interferences with privacy and in ‘seeking to give fair leeway for enforcing the law in the community’s protection.'”
For these reasons, we conclude that the searches of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments. Accordingly, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings not inconsistent with this opinion.
It is so ordered.
Modification History File Created: 08/10/2018 Last Modified: 08/10/2018