ICE raided and executed a search warrant on Soccer City in Albuquerque because of suspicion the operators were selling fake IDs. Defendant walked in carrying a box and he was accosted by the ICE agents and asked for his ID, too. They took it and ran it, and it came back that he’d been removed in the 1990s. He was charged with illegal entry after removal. His motion to suppress his ID and fingerprints was granted. The government relied on Michigan v. Summers and dealing with those who happen upon searches. While the initial encounter was consensual and he wasn’t blocked from leaving, keeping his ID too long made it a detention without reasonable suspicion. Delgado would make the initial stop valid, but there was no reason to continue as along as it did. Summers applies to the home when there is a drug warrant, not customers of a business when there is a fraud warrant. United States v. Lopez-Garcia, 2013 U.S. Dist. LEXIS 189297 (D.N.M. December 13, 2013):
Once the encounter between Defendant and Agent Schoen escalated into a detention, it was lawful only if supported by reasonable articulable suspicion: “[The Tenth Circuit] has held that reasonable suspicion remains the proper standard for police to take and run the defendant’s [identification], even when the encounter begins consensually.” Guerrero, 472 F.3d at 787. “Reasonable suspicion is defined as ‘particularized and objective basis for suspecting the particular person stopped of criminal activity.” Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18 (1981)). The government bears the burden of demonstrating that the totality of the circumstances established reasonable suspicion to believe that Defendant was involved in criminal activity. United States v. De La Cruz, 703 F.3d 1193, 1198 (10th Cir. 2013).
Here the government does not argue, much less attempt to establish, that Agent Schoen had reasonable suspicion to detain Defendant. Indeed, there is no evidence that, at any time during the initial encounter with Defendant up until the time he retained Defendant’s identification, Agent Schoen developed a particularized and objective basis for suspecting Defendant of criminal activity. Accordingly, the detention of Defendant during the records check was not supported by reasonable suspicion.
Rather than refute the absence of reasonable suspicion, the government contends that such suspicion was not necessary, as the agents were “commanded” by the warrant issued for the search of Soccer City “to search Defendant and ask for his identification.” Doc. 34 at 8. In support of this contention, the government cites to the application for the search warrant, which describes the premises to be searched as “[a]ll areas within Albuquerque Soccer City, to include persons, that may contain or have in their possession items listed in Attachment B [to the application].” Doc. 1 at 8. As an initial matter, it is far from clear that this description of the premises to be searched would encompass Defendant, who was not found on the premises but rather entered Soccer City after execution of the warrant was underway, and who agents had no reason to believe might have in his possession the items for which the agents were searching. The Court need not decide whether the agents were authorized to search Defendant, however, as Defendant was not searched pursuant to the warrant, but rather was detained incident to execution of the warrant. There is a material distinction between the issue of the search of an individual pursuant to a warrant, and the detention of an individual incident to execution of a search warrant; case law is clear that these issues should not be confused. See Denver Justice and Peace Comm., Inc. v. City of Golden, 405 F.3d 923 (10th Cir. 2005) (citing Michigan v. Summers, 452 U.S. 692, 695 n.4 (1981)). Here, the relevant question is whether, in the absence of reasonable suspicion, Defendant’s detention was nonetheless lawful because it was undertaken incident to execution of a search warrant.
. . .
This Court agrees that the holding of Summers appears limited to occupants of a residence, and does not reach the situation where, as here, agents detain a person who merely happened to be on the premises at the time a warrant was executed. Indeed, the reasoning of Summers is just as inapplicable to the circumstances here as it was to those in La Diana. Unlike a warrant issued to search a residence, the warrant to search Soccer City did not already authorize a substantial invasion of the privacy of individuals such as Defendant, who merely happened to arrive at a location where a search warrant was being executed – a public place where many persons with no connection to any alleged illegal activities could be expected to be found. Accordingly, unlike the detention of an occupant of a residence, Defendant’s detention incident to the search of Soccer City was not less intrusive than the search itself. Moreover, while an individual might elect to remain at his residence in order to observe the search of his possessions, an individual like Defendant, with no connection to the premises subject to search, is unlikely to have any possessions there. Similarly, while an individual whose home is subject to search already suffers from a “public stigma” that would be only minimally increased by detention in his or her own home, the public detention of an individual such as Defendant, who is not already subject to the stigma associated with the search, involves both inconvenience and indignity. Further, where, as here, the person detained was not an occupant of a residence but rather a bystander caught up in a raid on a fraudulent documentation operation, neither the interest in preventing flight nor the interest in achieving the orderly completion of the search could be furthered by the detention.
Finally, the interest in minimizing the risk of harm to the officers, the third interest identified in Summers and found sufficient in Rettele, Allen, and La Diana to justify a detention incident to execution of a search warrant, is not present here. In all three of those cases, immediately upon entering the premises to be searched, law enforcement officers detained the individuals found there. And in each case, the Court found the initial or brief detention of such individuals reasonable for the very reason that it was taken to secure the premises. See Allen, 618 F.3d at 408 (finding that because “several people were present” at the bar, “the police were justified in taking a ‘moment to secure the [premises] and ensure that other persons were not close by or did not present a danger'”) (quoting Rettelle, 550 U.S. at 615); La Diana, 342 F. Supp. 2d at 1042-43 (concluding that because “police do not know who they will find on the premises,” they are “justified in the initial detention of everyone present in order to stabilize the situation”). In contrast, here, the agents did not limit their detention to individuals who were found on the premises of Soccer City, but rather allowed Soccer City to remain open to the public during the search, and detained individuals as they entered the premises throughout the duration of the search. Indeed, Agent Schoen testified that they did not secure the area, or prevent or limit access by the public into the store. Agent Schoen further testified that Defendant entered the store and was detained at some point after the search was underway. Thus, it is clear that Defendant was not detained for the purpose of “stabliz[ing] the situation,” id. at 1042, or “exercising unquestioned command of the situation.” Rettele, 550 U.S. at 615.
Moreover, there is no evidence to suggest that agents were concerned that there would be firearms present at Soccer City, or that they would otherwise encounter any danger during execution of the warrant. Such concern was crucial to the Court’s determination in both Rettele and Allen that the detention at issue was justified. …
