After he
was charged with “felony charges of conspiracy to transport illegal aliens
under 8 U.S. Code §§ 1324(a)(1)(A)(ii) and (v)(I)”, Andres Lopez-Cruz-Cruz
moved to suppress certain evidence the prosecution intended to use against him
at trial. U.S. v. Lopez-Cruz, 2013 WL
4838908 (U.S. Court of Appeals for the 9th Circuit 2013).
According
to this opinion, this is how the prosecution came about:
One evening, border patrol agent
[Bernadino] Soto and his partner [David Gonzales] were patrolling Highway 80
near Jacumba, California, an area near the border with Mexico known for the
smuggling of undocumented individuals. The agents began surveillance of Lopez-Cruz
because he was driving a car they did not recognize as belonging to any of the
residents of the nearby small town, and because he was `brake tapping,’
behavior the agent recognized as consistent with people being `guided in to
pick up somebody or something.’
When Lopez-Cruz pulled over to
the shoulder of the road to make a U-turn, the agents stopped their unmarked
SUV behind him and activated the lights to indicate that they were law
enforcement personnel.
The agents walked up to the car and Soto asked Lopez-Cruz
where he was going and what he was doing. Lopez-Cruz told him he was going to
pick up a friend, border patrol agent Amawandy, at a nearby casino. He also
told the agent the car that he was driving belonged to a friend. Soto testified
[at the hearing on the motion to suppress] that he did not ask Lopez-Cruz who
the friend was, but that Lopez-Cruz's `answers changed a lot.’
During their discussion, Soto noticed two cell
phones in the car's center console. Soto asked Lopez-Cruz whether the phones
were his and Lopez-Cruz responded that the phones, like the car, belonged to a
friend. The agent then asked, `Can I look in the phones? Can I search the
phones?’ Lopez-Cruz consented by responding `yes.’ When conducting the search
of the phones, Soto took them behind the car, out of Lopez-Cruz's presence
where he could neither `see [n]or hear what [the agent] was doing with the
phones.’
Within about a minute, one of the
phones rang. Rather than ignoring the call or asking Lopez-Cruz's permission to
answer it, the agent answered the phone and initiated a conversation with the caller.
The caller asked, `How many did you pick up?’ The agent responded, `none,’ and
the caller hung up. The phone rang again less than two minutes later. The agent
answered again and a different caller asked, `How did it go?’ The agent replied
in Spanish, `I didn't pick up anybody. There was [sic] too many Border Patrol
in the area.’
The caller told him to return to
San Diego. Shortly thereafter, the caller phoned again, believing she was
speaking with Lopez-Cruz, but instead informed Soto that there were two people
next to a house where there was a lot of lighting, and gave instructions to
drive there, flash his high beams, and the two people would come out.
The agents arrested Lopez-Cruz
and followed the caller's instructions, which led them to pick up two people,
who admitted to being Mexican citizens without documents.
U.S. v. Lopez-Cruz, supra.
Before trial, Lopez-Cruz filed a motion to suppress the
evidence “obtained when Soto answered the incoming calls.” U.S. v. Lopez-Cruz, supra.
Lopez-Cruz argued that Soto
exceeded the scope of his consent. Lopez-Cruz
submitted a declaration stating that he `didn't understand that [he] had a
choice to say no’ when the agents asked for consent to search the phones and
that `[i]t never occurred to [him] that agents were going to answer incoming
calls on the cell phone.’ He further stated that `[h]ad [he] believed that
agents would answer the phones, [he] never would have given [his] permission to
search the phones.’
The government argued Lopez-Cruz did
not have standing to contest the search because he disclaimed ownership of the
phones, or, in the alternative, that answering incoming calls fell within the
scope of Lopez-Cruz's consent. The district court held an evidentiary hearing
at which Soto testified and was cross-examined. After hearing evidence, the
district court requested further briefing on whether answering an incoming call
falls within the scope of consent to search a cell phone.
U.S. v. Lopez-Cruz, supra. As Wikipedia notes, “standing” is a party’s
ability to show that he/she has “sufficient connection to and harm from” the
complained of acts to be able to challenge them in court. In other words, it means that Lopez-Cruz’s
rights must have been violated.
Lopez-Cruz’s motion was based on the 4th Amendment. He was arguing that his
consent to the search – on which the government relied to argue that he waived
his 4th Amendment right to privacy in the phone – was not valid
and/or did not encompass the agent’s answering the phone and taking the
calls. U.S. v. Lopez-Cruz, supra. As Wikipedia explains, the 4th
Amendment creates a right to be free from “unreasonable” searches and
seizures. As Wikipedia also explains, to
be “reasonable” a search or seizure must be conducted pursuant to a search (and
seizure) warrant or pursuant to one of several exceptions to the warrant
requirement. As Wikipedia notes, and as
I have explained in prior posts, consent is such an exception.
The
district court judge granted Lopez-Cruz’s motion, finding that he had standing
to
challenge the search of the cell phones because `the phones
were in the possession of [Lopez-Cruz] and being used by [him] at the time of
the encounter.’ On the scope of consent issue, the district court applied the `objective
reasonableness standard’ and determined that Lopez-Cruz's consent `was limited
to an examination of the phone itself and that further legal justification was
required before the agents answered it.’
After full exploration of the issue through briefing, a
hearing, and supplemental briefing, the district court held that a reasonable
person would not `believe that a consent to look at or search a cell phone
would include consent to answer incoming calls.’
U.S. v. Lopez-Cruz, supra. The prosecution filed a motion asking the
judge to reconsider her ruling, but she declined to do so. U.S. v.
Lopez-Cruz, supra. That led to this appeal.
In ruling
on the issues in the case, the Court of Appeals began by noting that to have
standing to seek suppression of the fruits of the agent's
search, Lopez-Cruz must show he personally had `a property interest protected
by the 4th Amendment that was interfered with . . ., or a reasonable
expectation of privacy that was invaded by the search.’ U.S. v.
Padilla, 111 F.3d 685 (U.S. Court of Appeals for the 9th Circuit 1997)
(quoting U.S. v. Padilla, 508 U.S. 77(1993)).
U.S. v. Lopez-Cruz,
supra.
The Court
of Appeals found Lopez-Cruz “had standing to contest the agent’s reception of
the phone calls.” U.S. v. Lopez-Cruz, supra. It explained that the reasonable expectation of
privacy depends on
(1) whether the person had `an actual (subjective)
expectation of privacy,’ and (2) whether the individual's subjective
expectation of privacy is `one that society is prepared to recognize as
“reasonable.”’ Katz v. U.S., 389 U.S. 347 (1967) (Harlan,
J., concurring). . . .
The district
court found `the location of the phones within the vehicle suggest [sic] that
the phones were in the possession of [Lopez-Cruz] and being used by [him] at
the time of the encounter.” It also noted that `the agents apparently drew a
similar conclusion by seeking defendant's consent before seizing the phones.’
The district court's factual conclusion—that Lopez-Cruz had possession of and
was using the phones—is not clearly erroneous. Possession and use of the phones
suffices to make Lopez-Cruz's expectation of privacy objectively reasonable.
U.S. v. Lopez-Cruz, supra.
The court
also found that, contrary to the prosecution’s argument, the fact that Lopez
did not own the phones did not mean he lacked standing to challenge the search.
U.S. v. Lopez-Cruz, supra.
It noted that “the fact of ownership or permissive use is merely one
factor” court consider in determining if a person has a reasonable expectation
of privacy in a place or thing. U.S. v. Lopez-Cruz,
supra. It found Lopez had such an expectation in the
phones at issue here because he possessed them and was using them, had the
right “to exclude others from using the” them and “did not abandon or throw the
phones out of the car when the agents stopped him.” U.S. v. Lopez-Cruz, supra.
The Court
of Appeals then took up the next issue:
whether answering the phones fell within the scope of his consent to let
Soto “look in” and “search” them. U.S. v. Lopez-Cruz, supra. It began its analysis
of the issue by noting that
`[i]t is a violation of a suspect's 4th Amendment rights for
a consensual search to exceed the scope of the consent given.’ United
States v. McWeeney, 454 F.3d 1030 (U.S. Court of Appeals for the 9th
Circuit 2006) The district court determined that the agent's act of answering
the incoming phone call exceeded the scope of Lopez's consent.
U.S. v. Lopez-Cruz, supra.
The court
also explained that the scope of someone’s consent is determined by
asking `what would the typical reasonable person have
understood by the exchange between the officer and the suspect?’. Florida v.Jimeno, 500 U.S. 248 (1991). The test is an objective one. The
district court explained that a reasonable person would not `believe that a
consent to look at or search a cell phone would include consent to answer
incoming calls.’ It held that Lopez's `consent in this case was limited to an
examination of the phone itself and that further legal justification was
required before the agents answered it.’
U.S. v. Lopez-Cruz, supra.
The Court
of Appeals noted that at the suppression hearing, Soto testified that he
asked Lopez: `Can I look in the phones? Can I search the
phones?’ Lopez submitted a declaration that stated: `It never occurred to me
that agents were going to answer incoming calls on the cell phone. Had I
believed that agents would answer the phones, I never would have given my permission
to search the phones.’
U.S. v. Lopez-Cruz, supra. The court found that, under Jimeno’s reasonable person test, the
district court correctly held that Lopez-Cruz’s consent did not encompass
answering calls. U.S. v. Lopez-Cruz, supra.
The court
also noted that “nonetheless”, the prosecution made two arguments as to why
answering incoming calls categorically falls within the scope
of consent to search a phone. First, the government contends answering a call
is no different from pushing a button to read an incoming text message (which
it assumes would fall within the scope of a general consent). Without deciding
the constitutionality of whether an agent can read incoming text messages on a
phone he has been given consent to search, we reject the government's attempt
to liken incoming calls to text messages.
When an agent answers the incoming call and engages the
caller in conversation, as Soto did here, he intercepts a call intended for the
individual in possession of the phone and pretends to be that person in order
to obtain information or create a new exchange with the caller. The agent's
impersonation of the intended recipient constitutes a meaningful difference in
the method and scope of the search in contrast to merely pushing a button to
view a text message. The agent is not simply viewing the contents of the phone
(whether incoming text messages or stored messages), but instead, is actively
impersonating the intended recipient.
Here, agent Soto did so by answering a call, concealing the
fact that he was a border patrol agent, and leading the caller to believe that
the information he was exchanging was with Lopez.
U.S. v. Lopez-Cruz, supra.
Finally, the prosecution’s second argument attempted to
analogize the consent given by
Lopez to the contents of a search
warrant. The government reasons that because we held that answering incoming
calls did not exceed the scope of the relevant search warrant in
two cases, U.S. v. Ordonez, 737 F.2d 793 (U.S. Court of Appeals for the 9th Circuit 1984) and U.S. v. Gallo, 659
F.2d 110 (U.S. Court of Appeals for the 9th Circuit 1981), the answering of
incoming calls following a consent to search the phones does
not exceed the scope of that consent.
U.S. v. Lopez-Cruz, supra
(emphasis in the original).
The Court
of Appeals found that a search warrant is “materially different” from a consent
search because the former is
`limited by the extent of the probable cause’ on which the
warrant is based. In re Grand Jury Subpoenas Dated Dec. 10, 1987, 926
F.2d 847 (U.S. Court of Appeals for the 9th Circuit 1991). In contrast, a
search pursuant to consent is limited by the extent of the consent given for
the search by the individual. Florida v. Jimeno, supra. Unlike a
scope of the search warrant case, in which we review for whether the evidence
seized was `reasonably related to the purpose of the search’ (that is,
reasonably related to the probable cause supporting the issuance of the warrant),
U.S. v. Ordonez, supra, in a
scope of consent case, we review for what `the typical reasonable person
[would] have understood’ the parties to have said to each other, Florida v.
Jimeno, supra.
U.S. v. Lopez-Cruz, supra.
The court pointed out that the
only authority to search agent Soto had
was pursuant to Lopez's consent. Accordingly, the government's position that
the reasoning of Gallo and Ordonez applies
here is simply incorrect. An individual who gives consent to the search of his
phone does not, without more, give consent to his impersonation by a government
agent, nor does he give the agent permission to carry on conversations in which
the agent participates in his name in the conduct of criminal activity.
U.S. v. Lopez-Cruz, supra.
It therefore affirmed the district court’s granting
Lopez-Cruz’s motion to suppress, and noted that “specific consent to answer” a
cell phone is necessary to justify such action.
U.S. v. Lopez-Cruz, supra. It therefore affirmed the district court’s
order suppressing the “evidence obtained by answering Lopez’s cell phones”. U.S. v. Lopez-Cruz, supra.
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