In Michigan v. Summers, 69 L. Ed.2d 340 (1981), the Supreme Court held that when the police
execute a warrant to search a private residence, they can detain the occupants thereof: "A warrant to
search for contraband founded on probable cause implicitly carries with it the limited authority to detain
the occupants of the premises while a proper search is conducted." Also, "when an apprehension
takes place at a location in which other persons reasonably might be present who might interfere with
the apprehension or endanger those apprehending, a reasonable examination may be made of the
general area in which such other persons might be located." (MRE 314(g) 3.) This does not, however,
by itself, automatically justify apprehending other people who happen to be present. Remember,
Michigan v. Summers, 69 L. Ed.2d 340 (1981), authorized the police to detain the occupants during the
search. There is a "legitimate law enforcement interest in preventing flight in the event that
incriminating evidence is found." Also, there is "the interest in minimizing the risk of harm to the
officers." As stated, this does not mean that everyone present may be apprehended.
In Ybarra v. Illinois, 62 L. Ed.2d 238 (1979), the police were executing a search warrant in a tavern.
The warrant said they could search the tavern and the bartender for "evidence of the offense of
possession of a controlled substance." The police did a pat down "search for weapons" of all
customers who were present at the time, amounting to approximately 13 people. On one of the
customers they found heroin. Here, the police had no probable cause to search these people, and they
"had no reason to believe that he was about to commit any offense." He had made no movements that
showed he was going to commit any crime, or which showed he was trying to conceal any contraband.
Also, he said nothing suspicious. The police, then, "knew nothing" about this customer, "except that he
was present." Faced with these facts, the Supreme Court ruled that a person's mere presence to
others who are suspected of criminal activity "does not, without more, give rise to probable cause to
search that person...a search or seizure of a person must be supported by probable cause
particularized with respect to that person." Each customer, then, has a constitutional protection. Here,
then, the warrant did not authorize a search of these other people: "It follows that a warrant to search a
place cannot normally be construed to authorize a search of each individual in that place."
In this case, then, the police lacked probable cause to apprehend this particular customer, or to
search him. Also, they had no reasonable belief that he was armed and dangerous. They didn't
recognize him as a person with a prior criminal history, and had no particular reason to believe he might
be inclined to assault them. He acted in a nonthreatening manner, his hands were empty, and he
made no gestures indicating he intended to assault them. In short, the police could not state any facts
which would have justified a belief that he was dangerous. He was simply a customer who happened
to be there. The search of his person was, therefore, illegal.
MP1021
1-36
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