NM: Detention without RS for ID check was invalid

Detention of defendant who was on foot to get his ID to run his information was an unreasonable detention without reasonable suspicion. State v. Montano, 2009 NMCA 130, 223 P.3d 376 (2009).*

[*1] Defendant Ray Anthony Montano asserts that the district court erred in refusing to suppress drug-related evidence obtained from his person in a search incident to his arrest. Neither the record of the hearing nor the suppression order shows specific grounds for denial. The issue is whether the police officer’s actions in stopping and questioning Defendant, who was on foot, and then obtaining Defendant’s identification and running it through dispatch constituted an unlawful investigatory detention. The State acknowledges that the officer did not have reasonable suspicion of criminal activity up to the point that dispatch informed the officer of an outstanding warrant. The State’s position is that the circumstances constituted either a consensual community caretaker encounter excluded from the Fourth Amendment to the United States Constitution or a community caretaker encounter that was subject to, but reasonable under, the Fourth Amendment.

[*2] We hold under the Fourth Amendment that what started out as either a consensual or non-consensual community caretaker encounter became an unlawful investigatory detention. We therefore reverse the district court’s denial of Defendant’s motion to suppress the evidence obtained by the officer after the search incident to Defendant’s arrest on the outstanding warrant.

Owner could validly consent to a search against a guest under Randolph. Testa v. Commonwealth, 55 Va. App. 275, 685 S.E.2d 213 (2009):

Randolph involved the application of the exclusionary rule to “a warrantless search of a shared dwelling” for evidence of a crime. Id. at 120 (emphasis added); see also id. at 119 (noting that the majority was “recognizing limits on merely evidentiary searches”); id. at 122 (limiting issue to situation involving an “express refusal of consent to a police search”). Here, the deputies did not search Griffin’s home. They simply entered it with the owner’s permission, walked into the common hallway at the owner’s invitation, and remained there throughout with the owner’s approval. 2 Testa was not a co-owner, renter, or boarding house tenant. He simply occupied a bedroom in his stepfather’s home. Nothing in Randolph suggests that a live-in guest of a homeowner can veto the owner’s right to invite anyone he may choose (whether police officers or anyone else) to accompany him into the common areas of his own home. See id. at 114 (explaining that Fourth Amendment privacy analysis takes into account any “recognized hierarchy” between the consenter and objector).

n.2 Because of our holding, we need not decide whether Testa’s guttural outburst (“Go fuck yourself”) can be analogized to the statements of the co-owner in Randolph who “unequivocally refused” when the officers asked for consent to search his home. Id. at 107.