is whether a search warrant for documents i nine records social security information the payroll and computer records associated with those authorize the detention and nonconsensual interrogation of two hundred people all throughout this printer manufacturing company putting a number of citizens in lawful residence the children of at least one of those people the answer to that question has to be no for three different reasons first as ice is own guide to work site enforcement investigations said in two thousand and eight the supreme court's decision i'm quoting the supreme court's decision held the questioning of employees during the execution of a criminal search warrant must be consensual and that was correct their own guidance this court and force that rule  nygaard which was a work site operation conducted pursuant to a search warrant what does consensual mean here that because they don't have to be given miranda warnings right no they don't consensual means that a person a reasonable person would feel that if they refused to answer the questions they would be allowed to go about their business and the government must have something more be on the mere refusal to answer in order to take further steps and it's very question and they no go over there or don't call because he didn't go over there they understood him to have answered the question essentially that's that's right your honor and all the you know the record isn't one hundred percent crystal clear about this mr perez cruz's declaration is fairly clear that they ask the citizens and lawful residents and other people who are authorized to move into a separate line and then they march them off to the cafeteria he doesn't speak the  finding on this is that he remains in the hallway and it would be a shift in the fourth amendment doctrine a pretty fundamental shift to say that refusing to speak and refusing to move the thing that's a tricky here though is how do we know if he was refusing versus answering right the government asked this question in an incredibly tricky way because there was sort of no way to not answer you either leave or you don't leave and then it's like you're answering well i think he refuses to speak a one has to speak right you just have to get in a line that's right although i also think that the record doesn't say that all the people who are citizens got into line and all the people who are not citizens are not lawfully present didn't and it doesn't say that  actually say he got in a lie he just didn't get that line exactly he didn't move that that's the record evidence he didn't move but it seems like the i j a understood that i mean that he had not identified himself as someone who they'd asked everyone who had legal status identify themselves and he had not done that he had not done that that's right but i think if you look at the underlying theory of the fourth amendment doctrine here it's central that when you're talking about a consensual encounter the you don't have to do anything if you don't want and so it would be for the government to force you to say you have to do one thing or another and we have you this way or we have you this way you know that would be a shift in the where is this legion i mean at least for the fact that i think it has something to do with how long detention was right because the government keeps saying well the detention was only twenty minutes because if they cut it off at that point that's right they have to win that argument because if we're right that his refusal to speak and leave did not create additional suspicion justifying probable cause to arrest him then they can search him which they do they search everybody they pat him down they take his wallet if all of that is an independently justified by the probable cause  contention that once he went didn't get in the line he may have probable cause not just reasonable suspicion is actually so this is we make this argument in footnote five of our brief they answer it in a footnote to doesn't get a ton of attention but they're only argument in response to this is that the self identification what they call self identification creates probable cause for an arrest and when you can arrest somebody and then you can take their well if he had said if he'd actually spoken if you'd said you're right i don't have legal status with that of a probable cause of that point we don't we don't argue we don't contest that and i think so so i guess i want to know if you have a way to win without this point so in the twenty minutes before this happens i mean do you have an argument that they really couldn't detain people for even those twenty minutes because it's like the tail wagging the dog here something like that that yes this is the this is the second reason i think there's actually two reasons that i would say are independent of that the most important one is all of this assumes that the detention this is not meant to put it the power to detain incident to search is categorical and so have to take this what is the primary purpose of what is happening here when we're talking about warrantless detentions of people the court does look at and to purpose to see what is the basic purpose of this and here you know we have here you're doing this by n and summers are only about searches of residences for contraband right so the move to extend that at all to the work site context happens and again which he now and then in dawson the city of seattle so it's in those cases in this court anyway that have extended that to the works that context those cases is there any reason i mean why wouldn't they be extended because in those cases in the supreme court cases it's replete with the discussion of the fact that first there's something about the home and you get a warrant to search the home so that authorizes an intrusion of privacy as to some people who are residing and then this is all about weapons i mean the menace as this is no ordinary search is a dangerous person evidence of gang membership you know but that ship sailed you know again which question interrogation i mean they came there they brought in ins person and i asked her about her citizenship they don't actually say whether she had to answer it or whether it was consensual the opinion just say that's correct let me just quickly answer the park question and come to this dawson incorporates the idea that the search has to effectuate excuse me that the detention has to effectuate the search it upholds the questions there because they here it seems like there is evidence that maybe this detention wasn't necessary for the search and that wasn't really the main motive but we don't have a finding about that i guess what do we do about the lack of a factual finding on this  certainly you know one thing you could do is remand it but in our view and if that is what happens i would respectfully request it not be permitted to expand the record because they explicitly waived and the right to present more question which i don't even remember a more about men i've been wondering the cases seem to care a lot about whether the detention went on longer than the search either did go water could have gone on and we don't know anything about that we don't even know if there was a search we don't know what happened and so far as i can tell in the records there is nothing about the search about the documents that's right about the documents and computer  correct just the warrant itself nothing else and i think on that question i think we did know that some prosecution arose from the search you know that but we don't know how we don't know what happened right like how long they took to take the paper out of the that part of the factory you know  think my first reaction to all this was why you searching the entire factory for some documents but nobody's challenging that as i understand it is that no no we we are so let me go back to the last part of this question and then get to it with forty supposed to because if you really were looking for documents you wouldn't be looking on the workplace floor for that i don't i guess i don't read the warrant to authorize any of this it says you can take whatever steps you have to to find the documents in the computer records that's what it's about it authorized the search of the entire building as i understand it i mean perhaps if there are records somewhere else in the building they don't know maybe exactly where they were but that just seems like a different question from do you have to separate citizens from non citizens i mean that's the threshold thing right you have to do that to find the documents for the payroll in the i nine i clearly not and you have to have two buses and five and this goes back to the main a question now though about why are they asking me about her immigration status right so  court says it's doing it reads the ninth circuit opinions of created a separate problem and then it rejects that and says look questioning is questioning look at bostic and bostic i said sites delgado's so it's just saying that the questioning itself is not a discrete fourth amendment event it didn't even uphold the questioning on that particular case that sent the case back menno one you know on remand in a memorandum disposition on the ground that her detention was prolonged beyond permissible basis for executing the search so i think because they're citing bostic and delgado all they're saying there is that this you don't have facts here you have to show that this searching was not i mean this interrogation was not consensual in order to win you can't say that it's a discrete fourth amendment problem and the other thing i would say about men on that subject is in the facts of the opinion it says this is the gang the warrant is to search for gang membership the evidence is that the gang is composed primarily of undocumented people and so they ask ins to ride along one  officer riding along while they do this big search of the house to ask them about gang membership i think is a very plausible reading of men it's not clear from the opinion was a plausible reading that the reason why they're doing that is because the person might be a gang member now she says i'm a lawful resident  a way around that they thought they had gang member so they were trying to find out if there are legal well but that would be a way to get rid of the gang members i mean i guess i don't read it that way i read it is as saying they're looking for evidence of gang membership and so they bring this person along that opinion isn't clear on you know on this point but to read to say that you can do interrogation in a suspicion less context beyond the scope of the warrant would be a radical expansion it would not in our record i'm very confused about whether we should assume there were also arrest warrants we're not going to argue they were not arrest warrants they definitely were us when we don't actually have them right i thought we had like these we have indicted indictments or complaints or something but not i'm a little confused about the status of the rest i mean there there were us who are and there were people who were arrested i think there were three or eight i can't remember now but i think we have three of them in the record ok but as i understand it nobody is arguing that the executing a search warrant there are discrete analysis this group considerations to be made think that mena stands for the proposition that the initial seizure for that one is categorical because there are a law enforcement interested in other concerns that allow for the seizure of the plane also you know was very specific about the particular circumstances it's sort of categoric on the abstract but you had it was it was a search for contraband it was a house it in the sense that you seem to have here a justification for a search of several hundred people in a workplace where the people involved you know had very little to do with what was being searched for i mean it may in their records but they were not the custodians in any sense and we as we said before there's there's nothing in the record about the connection between the search and the detention we have no idea when the things out i think that mean a categorical authority has been recognized by this court in other context and put in context where there were search for fraud in the business again which the check on the government though is on the reasonableness of the i'm i'm in agreement with counsel that the the the quote the the question isn't a discrete seizure the question is simply that there gado type of question so the seizure has already occurred and with within that seizure as it happened with mena the government can then why don't you understand mena to say that if you i mean here it seems to me that this that the questioning itself was a form of seizure in the sense that they basically said it was physical it wasn't it was they were basically ordering them to either go here or go there and in that sense it was a a a seizure in it or a detention in itself and i'm sorry go ahead i'm going to i think it's a i think a fair reading of the petitioners statement in support of this motion to suppress doesn't read is that he as if he was not responding as if he was it as if he was simply come he was responding to the  instead of being coerced into something something into a non nonverbal what's left of his right to not answer that question he had really no ability to not answer that question right well he could she could have expressed well first i mean we don't know he could have expressed that he was not and not not answering the question how would he have done that when he could have said something to the effect that i'm not i'm not complying with the request or not answering the question but from the statement that he provided in support of his motion but  s weird because the usual thing is you can just be silent and go on your way he had to actually accept i mean it's like the flip of it he had to say something in order to not say something yes there was even nonverbal request so we now understand the court's concern there but you know i also don't think that this is the linchpin of the case because by his own statement again he was individually question as to his immigration status well but right now it does have to do with the time because his government keeps  his statement says that by the end of the first hour he was question i believe three times asked today is it and we have any idea what what had what to search by then well we don't we don't know obviously we don't have the facts context where this is not a six this is not a this is not a search of a residential home this is a search of a large factory for a variety of documents very thorough search but doesn't that make it harder for you i mean it we're talking about a factory with like you know presumably a work room and it sounds like they went to a cafeteria i mean there's no reason to think documents would be there right so there's probably an office somewhere and they could have gone in to the office walk to the door and done their search and everyone else continue on with their lunch well to say that i don't understand how even the beginning of this detention was appropriate actually and i thought i would argue that the search was that was in line with the scope of the breath of the warrant because the warrant was to documents related to the legal oh so you're saying you needed to question the people in order to know what documents so i'm just saying that it didn't go but that's still within the scope of the breath of the warrant because the warrant allowed for search for this a warrant for a physical search ever include a permission to interrogate people about where things are i thought that's the point of a search you should go look yourself well that was one of the rationales the supported the summers a min decision that when you the reason that you say that you see these people is because you've got it helps the efficacy and if you haven't you may have to ask them they may be able to tell you why things are but but the notion that these workers are going to know where the employer keeps their documents is the procedural way that this this case one about was a it was a little bit different because the immigration judge actually did find it was a regulatory violation in suppress the evidence so there wasn't a suppression hearing before the immigration judge they then proceed as hearing because of what happens in most cases what happened what happened next case we're going to hear is that the immigration judge found it was a prima facia case and then held the whole suppression a separate suppression hearing and that didn't and says that in circumstances where there was no reasonable suspicion to detain somebody unlike in writing for example there's nothing to begin with was being committed with them not to detain anybody i mean in the other instances there are i mean and this in the administration of search circumstance for example there is some kind of finding problem cause i don't have to do it directly with these people it had to do with the owner and the end of the business and their records so i understand the records were of these people or they might be of these people but but still i i think even under even under me you know in summers the one of the one of the points that the supreme court made is that is that seizure authority pursued which execution of the warrant was ok because there was no reason for the government to exploit so there is and here the clearly is no reason for the government to exploit and there's pretty good evidence that it did i mean the least persuasive part of your brief to me was the suggestion that the foyer information didn't stand up to this because it said specifically we are large number of undocumented documented workers at the factory so we're not i'm not going we're not want to step away from that i mean that's that's that's clear from the record had a warrant been sought for arresting people or searching for those people i mean i'm a little concerned about whether the warrant process was manipulated here because it seems like there's a real disconnect between what happened and what the warrantless wire and i think look if you look at ice obtain the criminal search warrant they also obtained a criminal arrest warrant and they're not in the record but they were to what ice could have done is what they did in the next case where they would obtain an administrative search warrant for undocumented workers but i think i want to discuss that when we get to it right that's really mysterious to me but i think that in two thousand and two thousand and eight it was probably early two thousand and eight before the guidance came out as to that because points out it might have been the view of ice that the the criminal search warrant did give them the authority sought and not given no we don't have any information that are broader war i think that i said simply understood that they could rely on the criminal search warrant and the eight arrest warrants to operate as they did was two thousand and eight that you mention it's the guidance that's also mentioned in the brief and in that in that in that guidance ice takes the position which is which they can certainly do is to provide more constitutional protections than the constitution requires that they are not using more and for as a justification for to seize they are simply using the warrant says it's just a vacation to be entered if the factory than engaging permissible questioning under  that wasn't what i asked so it seems like if they thought anything they probably thought me you know was the justification i'm confused about what you think they thought might have been the justification obviously i have to speculate here because i don't have that information has happened to go but she could have not answered your order that is and you think that was true and so therefore in order for me to govern here we we would meet it would be necessary to be able to conclude that they could have not answered yes or no but that seems impossible mean a kind of questioning then everything goes bad from that point forward doesn't it well it depends on whether you if the question is viewed as as one that goes outside the scope of the  you four points your honor first regarding men as you said at the very outset it doesn't authorize the search of the wallet so they have to win that there's probable cause just on that very initial behavior the wallet search happens before even the individuals questioning if you look at his declaration so they have to win that this refusal to move creates probable cause on that subject as judge was saying to my my friend if you have to do anything if the target has to do anything affirmative in order to get out of the problem then you're outside of delgado because the essence of this is that if you do nothing you're free it's a consensual encounter so if you do nothing kind of so i guess i have a question about this issue and then the main issue in all of these things it feels like we're really in novel territory so like i don't know of any case that says the thing about like being asked to raise your hand or a walk or whatever is an answer not an answer and so i'm worried about this egregious process like say we say this is  fourth amendment problem how or how do we get past egregious because though it doesn't need to be clearly established and all of this feels very novel so it doesn't need to be clearly established to win on the terminations ground that the regulatory violation and i think we both agree that the regulations here  implementing a set of fourth amendment rules that we don't need to win agree just to justify determination for that all we have to win is that the regulations themselves are enforceable and i think that's pretty clear there's a whole line of cases going back ages to bri we works in and bill it comes to be taught that these types of regulation government's position is that it's not for us you know the government's position to eighty seven point twelve which says that it's not enforceable in civil or criminal cases you know the guidance when they promulgated that regulation said this is intended to be consistent with us because and the regulation says that these should terminations the regulation says this must be it's a earlier part into eighty evident that it's true as joe something that happens you know prior and  dawson is after amend it discusses manna and then applies the same rules that we were talking about so this is not a novel for that reason it's not a novel question you have to the questions there are permissible only because they are related to effect the search and also because they don't prolong the stops all of their own but also doesn't deal with the interrogation question and they talk about questions and they say the questions there are permissible because they're limited just to things related to officer safety and effectuating the warrant and it discusses again which and it clearly is assuming again which remains good luck do not assume it's saying again which remains good law and again which strikes down a serf and a search unconstitutional because of interrogation so on the question if we do have to when this is clearly established i would say dawson post meant discussing mannah imposing the same requirements that all came before meant you know with respect to interrogation and the last thing i wanted to say  problem are they and what do we do about them yes your honor it's their burden once they move beyond men and they're saying this is now permissible consensual questioning under delgado we're in warrantless land and the whole thing there's no warrant for his decorations on the record they were available to testify ten years ago you know and they were asked and it's in look at the record is page three hundred where this colloquy starts the i g repeatedly asked them so you're not putting on any evidence so you like this long back and forth and they say they disclaim the right to do that so if we have to go back now and try and establish what the purpose of this is and you treat it as a sort of to no question that what is the purpose or question but there's also the one that's really troubling me is to connection to the search counterintuitive to me and they would have had to prove that you needed to talk to stop everybody working everywhere in the factory in order to find a set of business records and the computers associated with the business records mr parris cruz was not and it was not even more simply that there was a search that it took x amount of child that a reasonably took that amount of time and there's none of that either i think all of that is their obligation to establish they had the chance to put in that evidence the reason why that didn't happen your honor was because there the argument in the immigration court although there was a little bit about the warrant the focus of it the primary focus was whether the interrogation was consensual or not and so although there was some discussion of the arrest warrant if you look at the briefing the way it gets briefed in the immigration court as well also good arguments and separate arguments for why this is ok but if they have to win but this is permissible questioning under delgado both the first and i don't you know it's shaky after mean yeah or at least you have to reconcile the two of them  totally fake or just that it was not as big a purpose what is the rule that you think we should do on pretext if we go that way it's the primary purpose that's the wording used and i would direct the court to edmund they say yes purpose analysis is difficult thirty or something immigration cases and you cannot explain why you would need all of these agents one hundred agents coming into this place if all you were doing was searching for documents and they knew that in advance so you know there's no one rule is just like look at all the facts and see what is the primary purpose here and here you the hundred agents coming in they have this whole plan to interrogate everybody the buses in the vans and all that we've already said and so i think here the primary rule would be to to detain pursuant to a search