The opinion of the court was delivered by: Donetta W. Ambrose Senior Judge, U.S. District Court
This civil action rests, in part, on the allegedly improper execution of an "all persons present" search warrant on Plaintiff's property. Plaintiffs claim that Defendants violated their First Amendment rights by applying the search warrant to "violently search" plaintiffs for engaging in protected speech and religious association (Count I); and violated their Fourth Amendment rights by subjecting them to search and detention without probable cause or reasonable suspicion (Counts II and III).*fn1 Before the Court is Plaintiff's Motion for Partial Summary Judgment, seeking a judgment that the search warrant was invalid. Also before the Court is Defendants' Motion for Summary Judgment. Defendant seeks a judgment that the search warrant was valid, and also seeks judgment in its favor on Plaintiffs' various claims for relief. For the following reasons, Plaintiff's Motion will be granted, and Defendant's granted in part and denied in part.
Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. V. Stauffer Chem. Co., 898 F. 2d 946, 949 (3d Cir. 1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States v. Onmicare, Inc., 382 F. 3d 432 (3d Cir. 2004).
Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex Corp. v. Cattrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 265 (1986). The sum of the affirmative evidence to be presented by the non-moving party must be such that a reasonable jury could find in its favor; it cannot simply reiterate unsupported assertions, conclusory allegations, or suspicious beliefs. Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995).
Before reaching the validity of the search warrant, I take note of Defendant's contention that the Fourth Amendment is not implicated by the facts of this case, because there was no reasonable expectation of privacy in the public CULM property searched. I do not, however, understand Plaintiffs' claim to challenge the search of the CULM property. Instead, it appears that Plaintiffs' challenge is limited to the "all persons" aspect of the warrant, by which the individuals were searched or detained, and the resulting searches and seizures. Plaintiffs address the public nature and large size of the CULM property, and the geographic breadth of the warrant, in the context of whether it was appropriate to authorize a search of all persons present on that property. Defendants do not contend, and nor could they, that the individual Plaintiffs do not have a reasonable expectation of privacy in their bodies that implicates the Fourth Amendment. Accordingly, I need not reach Defendants' contentions regarding the scope of the CULM property searched.
Thus, I must address Plaintiffs' assertion that the "all persons present" warrant, pursuant to which they were searched or detained, was not supported by probable cause.*fn2 When reviewing an initial probable cause determination, the reviewing court should consider only the affidavit before the issuing judge, and should not consider other information of record. United States v. Miknevich, 638 F.3d 178, 182 (3d Cir. 2011); United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001). Thus, "[t]he focus should be on what the affidavit includes, rather than on what it does not include." Leveto v. Lapina, 98-143, 2000 U.S. Dist. LEXIS 1972, at *25 (W.D. Pa. Feb. 5, 2000).
The Fourth Amendment provides as follows: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "It is the warrant requirement that protects the individual's legitimate expectation of privacy against the overzealous police officer." United States v. Abbott, 584 F. Supp. 442, 446 (W.D. Pa. 1984).
An "all persons" warrant presents probable cause issues, rather than particularity issues. A reviewing court has the duty to ensure that the issuing judicial officer had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt." Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949). The United States Supreme Court has held that generalized statements, such as those regarding "the special circumstances of today's drug culture," may not substitute for individualized evaluation of whether the Fourth Amendment's requirements are satisfied. Richards v. Wisconsin, 520 U.S. 385, 392, 137 L. Ed. 2d 615, 117 S. Ct. 1416 (1997).
In State v. DeSimone, 288 A. 2d 849, 850 (N.J. 1972),*fn3
the Supreme Court of New Jersey set out what has become the
leading approach to "all persons" warrants:
On principle, the sufficiency of a warrant to search persons identified only by their presence at a specified place should depend upon the facts. A showing that lottery slips are sold in a department store or an industrial plant obviously would not justify a warrant to search every person on the premises, for there would be no probable cause to believe that everyone there was participating in the illegal operation. On the other hand, a showing that a dice game is operated in a manhole or in a barn should suffice, for the reason that the place is so limited and the illegal operation so overt that it is likely that everyone present is a party to the offense. Such a setting furnishes not only probable cause but also a designation of the persons to be searched which functionally is as precise as a dimensional portrait of them. . . . . So long as there is good reason to suspect or believe that anyone present at the anticipated scene will probably be a participant, presence becomes the descriptive fact satisfying the aim of the Fourth Amendment. The evil of the general warrant is thereby negated.
A majority of state and federal courts addressing the issue have followed DeSimone's pronouncement that an "all persons" warrant is constitutional if the information given the issuer established probable cause to believe that all persons on the premises at the time of the search are involved in the criminal activity. See, e.g., Owens v. Lott, 372 F.3d 267, 276 (4th Cir. 2004). Otherwise stated, such a warrant is authorized only if "the supporting affidavit establishes probable cause that evidence of illegal activity will be found upon every person likely to fall within the warrant's scope at the time of execution." United States v. Swift, 720 F. Supp. 2d 1048, 1056 (E.D. Ark. 2010).
Decisions of the United States Court of Appeals for the Third Circuit are in accord with DeSimone's approach. See United States v. Guadarrama, 128 F. Supp. 2d 1202, 1208 n. 6 (E.D. Wis. 2001) (citing Baker v. Monroe Twp., 50 F.3d 1186 (3d Cir. 1995)). Consistent with DeSimone, in United States v. Abbott, 574 F.3d 203 (3d Cir. 2009), our Court of Appeals stated that "a warrant may authorize the search of all persons present if there is probable cause to believe that a premises is dedicated to criminal activity." Id. at 212 (citing Lott, 372 F. 3d at 276).*fn4 In doing so, the Court of Appeals cited, with approval, the following recitation of situations in which an "all persons" warrant might be appropriate: "a building or apartment used as a crack house, a barn used as a methamphetamine lab, or a warehouse used exclusively as a storage place for arms." Id. (quoting Marks v. Clarke, 102 F.3d 1012 (9th Cir. 1997)). Thus, Abbott reflects DeSimone's suggestion that an "all persons" warrant may be suitable with reference to a limited space, used for a limited purpose.
In this case, the affidavit tendered to the issuing judge did not set forth reasonable grounds to believe that all persons on the premises at the time were engaged in criminal activity, or that the premises were dedicated to criminal activity.*fn5 The information contained in the affidavit did not suggest a limited space such as a building, barn, or warehouse -- instead, it described a variety of apparently open, broadly delineated locations -- such as "vendors row," a grassy dirt road running between the stage and camping areas, or the camping sites themselves. Indeed, the affidavit stated that "Persons were spread out enough to be viewed by security or others without effort, the crowd was not large enough to hide illegal acts," strongly suggesting that not every person in that crowd was engaged in illegal acts. The affidavit also described one man, a food vendor, who indicated to officers that he was not at that time engaged in his usual sales of "pot brownies," because the crowd was not large enough. The affidavit also refers to various "concert events" held on the property, and that the date the warrant was executed was to be a concert event. These sentences alone belie reasonable grounds to conclude that all persons present would be engaged in illegal activity at the time of a search, or that the premises were dedicated to criminal activity.
Defendants point out that in August, 2009, I found that there was "pervasive"-- i.e., widespread or prevalent-- drug use on the property. Widespread drug use, however, does not equate to a premises devoted to illegal activity, nor does it connote that all persons present are likely involved in such activity. Moreover, my finding post-dated the raid, and reliance thereon would embrace an impermissible after-the-fact justification for probable cause. See United States v. Hughes, 606 F. 3d 311 (6th Cir. 2010). I note, too, that although the warrant is repeatedly referred to as "restricted" to the vending, stage, and camping areas, no such restriction appears on the face of the warrant. No language of limitation is used, and the supporting affidavit recites several instances of observed illegal activity not specified to be in one of those enumerated locations.
The affidavit does not state, nor do the facts recited therein reasonably lead to the conclusion, that evidence of illegal activity would be found upon every person at the "Funk Fest," or even every person in the vending, stage, or camping area of the CULM property. The facts stated in the affidavit simply could not lead one to analogize the subject premises during music concerts, to locations such as an apartment used as a crack house, or a barn used as a methamphetamine lab. Thus, this case echoes Lott:
At bottom, the search warrant authorized the search of individuals in this case based on nothing more than their proximity to a place where criminal activity may or may not have occurred. And, as the Supreme Court has explained, a person's mere propinquity to suspected criminal activity ...