Detaining and Searching People on the Premises to be Searched

Officers executing a search warrant may detain people found on the premises during the search.

If officers executing a search warrant find people in or near the premises, the officers may detain those people, under certain circumstances. For example, officers executing a search warrant may detain a resident of the premises during the search.¹ Detention of a resident of the premises to be searched is reasonable under the Fourth Amendment’s prohibition against unreasonable searches and seizures because a search warrant provides an objective justification to detain the resident during the search.² Moreover, such a detention is justified by the law enforcement interests in “(1) preventing flight in the event that incriminating evidence is found; (2) minimizing the risk to law enforcement officers; and (3) facilitating the search.³

However, these justifications do not extend to a non-resident who is not connected to the premises in some way or suspected to be involved with criminal activity.⁴ Therefore, officers cannot detain a non-resident merely because that person is present at the place to be searched.⁵ There must be additional facts that would make detaining a non-resident reasonable under the circumstances. ⁶ In other words, officers must have a reasonable basis to believe that a non- resident has some type of connection to the premises or to criminal activity.⁷ This requirement is often referred to as a “presence plus” requirement.⁸ Examples of what may satisfy the “presence plus” requirement include the fact that a non-resident was found five feet away from a drug- laden table inside the apartment being searched, or the fact that a non-resident was inside a home with money and drugs out in the open.⁹ In addition, the “presence plus” requirement may be satisfied if the officers have information that the non-resident is a suspect in a crime.¹⁰

If officers executing a search warrant do not have any articulable reason to believe a non- resident found in the premises is connected to either the premises or criminal activity, the officers must diligently investigate whether the non-resident has such connections before they may detain the non-resident during the search.¹¹ Such an investigation may simply involve ascertaining the identity of the non-resident, his relationship, if any, to the resident of the premises, and his purpose for being in the premises.¹²

When officers find a person on the premises to be searched, they may detain that person temporarily, but only for as long as necessary to investigate the person’s connection to the premises.¹³ In so doing, officers may take a few minutes to secure the premises before beginning the inquiry regarding the person detained.¹⁴

In addition to investigating the identity and background of the non-resident, officers executing a search warrant may obtain reasonable suspicion to justify detaining the non-resident by the circumstances existing at the time the officers enter the premises. Circumstances which may justify detaining a non-resident include (1) attempts by the non-resident to flee the premises, (2) furtive gestures or sudden movements by the non-resident toward a weapon, (3) threats by the non-resident against the officers or others in the premises, (4) behavior by the non-resident indicating a resistance to the search or to being detained, (5) facts indicating the non-resident is committing or is about to commit a crime, and (6) facts indicating the non-resident is under the influence of alcohol or drugs.¹⁵ The more of these circumstances that exist, the more likely a detention of a non-resident during the execution of a search warrant will be deemed reasonable.

If the officers fail to establish any facts to support a reasonable belief that the non- resident is connected to the premises or to the criminal activity under investigation, or a reasonable basis for fearing the non-resident, the officers may not detain the non-resident during the search, but must release the non-resident.¹⁶

Officers executing a search warrant may search persons detained during the search, under certain circumstances.

If reasonable suspicion under the “presence plus” rule is established, officers may also search the residents and non-residents who have been detained, if circumstances warrant. The determination of whether circumstances warrant a search of the non-resident depends on whether the search is reasonable under the circumstances. That determination depends on the degree of the intrusion involved in the search.  For example, officers may conduct a “pat down” type search under Terry v. Ohio¹⁷ if they have a reasonable suspicion that the person poses a risk to the safety of the officers executing the search warrant.¹⁸ A more extensive search may be conducted incident to a lawful arrest.¹⁹  As with any search conducted without a warrant, a search of a non-resident detained during the execution of a search warrant must be reasonable.

ENDNOTES

1 State v. Madsen, 2000-NMCA-050, ¶¶ 14-15, 129 N.M. 251, 5 P.3d 573 (officers may detain resident of premises to be searched pursuant to a warrant even if the officers find the resident outside the premises – on front steps of house, or on pay phone outside of motel room – when they arrive to execute the warrant) (citing Michigan v. Summers, 452 U.S. 692 (1981)).

2 Id.

3 State v. Graves, 1994-NMCA-151, ¶ 11, 119 N.M. 89, 888 P.2d 971 (citing Summers).

4 Id. ¶¶ 17, 20.

5 Id. This is true even if the warrant includes language authorizing the search of all persons present at the time of the search. See State v. Light, 2013-NMCA-075, ¶¶ 27-28, 306 P.3d 534. Police must have particularized information with respect to each person present before detaining and searching each person. Thus, police may not rely on the general language of the warrant, but must have reasonable suspicion to justify detaining each person individually. Id.

6 Id.

7 Id.; see also Madsen, 2000-NMCA-050, ¶ 16.

8 Graves, 1994-NMCA-151, ¶ 14; State v. Martinez, 1996-NMCA-109, ¶ 34, 122 N.M. 476, 937 P.2d 31.

9 Graves, 1994-NMCA-151, ¶¶ 15-16 (citing cases).

10 Id. ¶ 15 (citing State v. Lovato, 1991-NMCA-083, 112 N.M. 517, 817 P.2d 251).

11 Id. ¶¶ 18-19.

12 Id.

13 State v. Winton, 2010-NMCA-020, ¶¶ 15-17, 148 N.M. 75, 229 P.3d 1247.

14 Id. ¶ 18. 

15 Graves, 1994-NMCA-151, ¶¶ 18-19.

16 Id.

17 392 U.S. 1 (1968).

18 Ybarra v. Illinois, 444 U.S. 85 (1979); State v. Lovato, 1991-NMCA-083, ¶ 34, 112 N.M. 517, 817 P.2d 251.

19 State v. Tywayne H., 1997-NMCA-015, ¶ 19, 123 N.M. 42, 953 P.2d 251.