Ninth Circuit: Law Enforcement Cannot Rely on a Search Warrant to Target Individuals for Detention Without Individualized Reasonable Suspicion
Recently, the Ninth Circuit held that law enforcement cannot detain incident to the execution of a search warrant when the purpose of the search is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion.
In March 2006, ICE received an anonymous tip that Micro Solutions Enterprises employed 200-300 undocumented immigrants. Two years later, ICE sought and received a search warrant for employment documents located at the MSE factory near Los Angeles. Prior to the execution of the warrant, ICE issued an internal memorandum that stated ICE “[would] be conducting a search warrant and expects to make 150-200 arrests.” The memorandum also noted that ICE would have “2 buses and 5 vans” to transport potential detainees from the factors and “200 detention beds.” Another internal document noted that ICE “anticipate[d] executing a federal criminal search warrant at MSE in order to administratively arrest as many as 100 unauthorized workers.”
ICE’s operation took place 2 days after the warrants were issued. Approximately 100 armed and uniformed ICE agents arrived at the MSE factory, blocked visible exits, announced that no one was permitted to leave, and did not permit the workers to use their phones. Gregorio Perez Cruz, a native and citizen of Mexico who entered the United States in 1994, was one of the workers detained. The agents ordered Perez Cruz and other workers to stand against a wall, and conducted a pat down search of each of them. The agent who frisked Perez Cruz also took his wallet. The agents then handcuffed the workers and questioned them. While Perez Cruz was handcuffed, the agents asked him his name, his nationality, his date of birth, and the length of time he worked at MSE. The agents escorted Perez Cruz and other agents into a hallway and questioned them again. At some point during his detention, Perez Cruz provided statements to the agents indicating that he lacked lawful immigration status.
Thereafter, the agents took the workers to buses parked outside. When Perez Cruz was boarding a bus, an agent photographed him and asked him again for his name and country of origin. When the bus arrived at the detention facility, agents ordered Perez Cruz off the bus, searched him again, and removed his handcuffs. Perez Cruz was held at the detention facility overnight, when he was interrogated again. The next day, Perez Cruz was interrogated once more. Around 1:00 am, the agents released him. Per an ICE press release, Perez Cruz was one of 130 workers arrested for immigration violations.
Approximately 1 month later, Perez Cruz received a notice to appear for a removal hearing. The notice charged him as removable for entry without inspection. Based on the statements Perez Cruz made during his detention, ICE prepared a Form I-213 alleging that Perez Cruz had admitted that he was brought illegally into the United States. The government also provided Perez Cruz’s birth certificate, which was obtained by an ICE agent in Mexico based on Perez Cruz’s statements.
Perez Cruz moved to terminate the proceedings, or alternatively, suppress the evidence gathered. He argued that his arrest and interrogation violated binding federal regulations as well as the Fourth and Fifth Amendments. The immigration judge granted Perez Cruz’s motion to terminate and concluded that ICE’s initial detention of Perez Cruz and failure to advise Perez Cruz of his rights violated ICE’s regulations. The immigration judge did not reach Perez Cruz’s constitutional claims.
The government appealed, and the Board of Immigration Appeals reversed. The BIA relied on Michigan v. Summers, 452 U.S. 692 (1981), which held valid the detention of residents of a home where a search warrant was being executed. The BIA also concluded that even if the detention was improper, the evidence introduced by the government was offered to prove only Perez Cruz’s identity and therefore could not be suppressed. On remand, the immigration judge entered a removal order against Perez Cruz. When Perez Cruz appealed again, the BIA affirmed the immigration judge’s order and dismissed the appeal.
Perez Cruz petitioned the U.S. Court of Appeals for the Ninth Circuit to review the BIA’s decisions. He argued that his detention violated both the Fourth Amendment and controlling regulations, and that the evidence against him should have been suppressed.
The court of appeals first addressed the government’s argument that Perez Cruz’s statements in Form I-213 and his birth certificate constitute evidence only of identity and are subject to suppression. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the court determined that “[t]he ‘body’ or identity of a defendant or respondent in a criminal or civil proceeding is never itself suppressible as a fruit of an unlawful arrest, even if it is conceded that an unlawful arrest, search, or interrogation occurred.” On that basis, Lopez-Mendoza concluded that an immigrant who “objected only to the fact that he had been summoned to a deportation hearing following an unlawful arrest” could not raise a Fourth Amendment claim. Thus, the government sought to expand evidence of one’s identity to include evidence used to establish alienage – Perez Cruz’s statements regarding his country of origin and his birth certificate.
The court held that the government’s position is “flatly contradicted” by Lopez-Rodriguez v. Mukasey, 536 F.3d 1012 (9th Cir. 2008). As explained by the court, Lopez-Rodriguez concluded that evidence of alienage resulting from an egregious Fourth Amendment violation should be suppressed. Here, as in Lopez-Rodriguez, the government relied on alienage evidence alleged to be the fruit of unlawful government conduct. The I-213 form notes that Perez Cruz “was born in Puebla, Mexico on 9/6/1985” and Perez Cruz’s birth certificate were obtained based on Perez Cruz’s statement that he was born in Puebla, Mexico. The court therefore rejected the government’s argument that the evidence sufficient to prove Perez Cruz’s removability is not suppressible.
The court of appeals then turned to the merits of Perez Cruz’s illegal detention and interrogation claim. The court stated that as a general rule, the Fourth Amendment’s exclusionary rule does not apply to immigration proceedings. However, the court noted that there are two exceptions: (1) when an agency violates a regulation promulgated for the benefit of a petitioner and that violation prejudices petitioner’s protected interest, and (2) when the agency egregiously violates a petitioner’s Fourth Amendment rights. Perez Cruz argued that suppression of the evidence was warranted based on both exceptions.
Perez Cruz relied on 8 C.F.R. § 287.8(b)(2), which provides: “If the immigration officer has a reasonable suspicion, based on specific articulable facts, that the person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States, the immigration officer may briefly detain the person for questioning.” The Ninth Circuit has recognized that evidence gathered in violation of this regulation may be suppressed where the violation prejudiced the interest of the alien. With respect to the court’s inquiry if there was reasonable suspicion here, the court stated that a person’s propinquity to others independently suspected of unlawful activity does not give rise to reasonable suspicion to search that person. The court found that ICE’s suspicion that MSE was employing undocumented workers did not provide reasonable suspicion that Perez Cruz himself was undocumented.
The government contended that Michigan v. Summers permitted the agents to detain Perez Cruz without suspicion on their arrival at the factory to execute the search warrant. Assuming that the search warrant in this case supported a Summers detention, the court of appeals next considered whether Perez Cruz’s seizure was justified as a valid Summers detention. The court stated that the authority provided by Summers for detention during the execution of a valid search warrant applies in the absence of probable cause or reasonable suspicion as to the detained individuals’ culpability. The Ninth Circuit has found the Summers exception applicable in cases involving broad searches and detentions, including the detention of an entire building’s occupants while law enforcement officers executed a search therein.
However, the court stated that in this case there is substantial, uncontroverted evidence that the search for employment documents authorized by the warrant was far from the ICE agents’ central concern. Instead, the agents’ principal goal was to detain, interrogate, and arrest a large number of individuals who worked at the factory, hoping to initiate removal proceedings against them. Referencing Bailey v. United States, 568 U.S. 186 (2013), the court explained that where a “safe and efficient search” is not the primary purpose of the officers’ actions, Summers’s justification for bypassing the Fourth Amendment’s traditional protections disappear.
The court stated that Bailey strongly supports the conclusion that Summers did not authorize Perez Cruz’s detention. As a result, the court found that Perez Cruz was prejudiced in his removal proceedings by the ICE agents’ decision to detain and question him without individualized reasonable suspicion in violation of 8 C.F.R. § 287.8(b)(2). In light of the regulatory violation, the court stated that Perez Cruz was entitled to suppression of the evidence gathered as a result of the violation. Because suppression was warranted, the court found that Perez Cruz’s removal proceedings should be terminated without prejudice.
Read the full case: Perez Cruz v. Barr
This case law update was written by Michael J. Sgarlat, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.