444 U.S. 85 (1979)
On March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a complaint for a search warrant to an Illinois circuit court judge.1 The complaint recited that a reliable informant had observed fifteen to twenty-five tin-foil packets on the person of the bartender Greg and behind the bar at the Aurora Tap Tavern over the weekend of February 28 and 29.2 The informant had seen such packets on Greg and in a drawer on at least ten other occasions.3 The informant had been told by Greg that he would have heroin for sale on March 1.4
On the strength of this complaint the judge issued a warrant authorizing the search of the Aurora Tap Tavern and the person of Greg the bartender for heroin, contraband, other controlled substances, money, instrumentalities, and narcotics paraphernalia.5
In the late afternoon of March 1, 1976, seven or eight officers proceeded to the tavern.6 Upon entering they announced their purpose and advised all those present that they were going to conduct a cursory search for weapons.7 One officer then patted down each of the nine to thirteen customers present while the remaining officers searched the premises.8 The officer who frisked the patrons found Ventura Ybarra standing by a pinball machine.9 In the first patdown the officer felt a cigarette pack with objects in it but did not remove it.10 After completing the process the officer returned to Ybarra two to ten minutes later, relocated and retrieved the pack from Ybarra's pants pocket, and found six tinfoil packets containing a brown powdery substance that later proved to be heroin.11
Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance.12 He filed a pretrial motion to suppress the contraband seized from his person.13 At the suppression hearing the State sought to justify the search by reference to an Illinois statute authorizing officers to detain and search persons found on premises being searched pursuant to a warrant.14 The trial court denied the motion, finding that the search had been conducted under the authority of the statute to prevent the disposal or concealment of things described in the warrant.15 The case proceeded to a bench trial and Ybarra was found guilty.16
On appeal the Illinois Appellate Court affirmed the conviction, holding that the statute was not unconstitutional in its application to the facts of the case because the search occurred in a one-room bar where heroin was being sold, the packets could easily have been concealed, and Ybarra was not an innocent stranger having no connection with the premises.17 The Illinois Supreme Court denied Ybarra's petition for leave to appeal.18 There followed an appeal to the United States Supreme Court, which noted probable jurisdiction.19
Whether the application of the Illinois statute authorizing law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant violated the Fourth and Fourteenth Amendments?20
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.21 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.22
Yes. Although the warrant authorized a search of the tavern and Greg, the complaint provided no information suggesting that any patron other than Greg was involved in criminal activity.23 When the officers entered the tavern, they did not recognize Ybarra and had no reason to believe that he had committed any offense.24 Ybarra made no suspicious gestures or movements, and the officers knew nothing particular about him beyond his presence in the tavern at that time.25
The application of the Illinois statute violated the Fourth and Fourteenth Amendments.26
Related opinions on this issue
Chief Justice Burger dissented, joining Justice Rehnquist’s dissent.27 He argued that the majority unjustifiably narrowed the rule of Terry v. Ohio by requiring particularized and individualized suspicion that a person is armed and dangerous as a condition to a Terry search.28 This goes beyond the rationale of Terry and overlooks the practicalities of a situation which often confronts officers executing a valid search warrant.29
In a small one-room tavern where narcotics activity is suspected, officers should not be required to assume that all patrons are unarmed and uninvolved, as they might pay for such an assumption with their lives.30 Burger would hold that when police execute a search warrant for narcotics in a place of known narcotics activity they may protect themselves by conducting a Terry search of the patrons.31 The law does not require that those executing a search warrant must be so foolhardy.32
Whether the initial patdown search of a tavern patron during execution of a narcotics search warrant was supported by a reasonable belief that the patron was armed and presently dangerous?33
Under Terry v. Ohio, a patdown for weapons is permitted only when the officer has a reasonable belief that the person is armed and presently dangerous.34 The narrow scope of this exception does not permit a generalized cursory search for weapons on less than reasonable belief directed at the person to be frisked.35
No. The initial frisk was not supported by a reasonable belief that Ybarra was armed and presently dangerous.36 The officers neither recognized him as having a criminal history nor had any particular reason to believe he might assault them.37 Ybarra's hands were empty.38 He gave no indication of possessing a weapon and made no gestures indicative of an intent to commit an assault.39
The only fact the State could point to was that Ybarra was wearing a 3/4-length lumber jacket which could be expected on any tavern patron in Illinois in early March.40
The initial patdown search was not supported by a reasonable belief that Ybarra was armed and presently dangerous.41
Related opinions on this issue
Justice Rehnquist dissented, contending that the actions of the police satisfied the scope/justification test of reasonableness established by the first clause of the Fourth Amendment as interpreted in Terry.42 The police were aware that heroin was being offered for sale in the tavern. It was therefore reasonable to assume that any one or more of the persons at the bar could have been involved in drug trafficking.43 The police were also conscious of the possibility that patrons could be armed, as firearms are tools of the trade in the narcotics business.44
The potential danger to the officers in the dimly lit tavern justified the immediate frisk to eliminate the danger and freeze the area.45 In addition, the magistrate's determination that a search was necessary provided the necessary safeguard instead of requiring individualized suspicion in this context of executing a warrant.46
Whether the second search of the patron and seizure of a cigarette pack from his pocket were constitutionally justified after the initial patdown?47
No. Since the initial patdown was not justified under the Fourth Amendment, the second search and seizure of the cigarette pack cannot be constitutionally justified.50 The officer had no particularized probable cause regarding Ybarra at the time the warrant was executed or during the search of the tavern.51 The second search took place two to ten minutes after the first patdown.52
The second search and seizure were not constitutionally justified.53