Saturday, September 14, 2013

Case o' The Week: Ninth Gets Smart - Privacy and Cell Phone Searches (and Standing!)

Mix agents and phones, and something’s bound to go wrong.
United States v. Lopez-Cruz, 2013 WL 4838908 (9th Cir. Sept. 12, 2013), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges Canby and Wardlaw. Big win by Devin Burstein, Federal Defenders of San Diego, Inc.

Facts: Lopez-Cruz was surveilled by agents near the Mexican border. Id. at *1. He was stopped by agents, who asked them what he was doing. Id. Lopez-Cruz explained the car he was driving belonged to a friend, and that two cell phones in the center console also belonged to a friend. Id. An agent asked, “Can I look in the phones? Can I search the phones?” and Lopez-Cruz said, “yes.” Id. One phone promptly rang, and the agent – pretending to be Lopez-Cruz – answered. Id. In that call, and in two subsequent incoming calls, details of alien smuggling were revealed. Id. Lopez-Cruz was charged and moved to suppress the evidence obtained when the agent answered the calls. Id. at *2. He declared that he didn’t understand that his consent extended to answering the phone –had he known, he would have not agreed to the search. Id. The district court suppressed the evidence; the government appealed. Id.

Issue(s): “[T] the government presses two arguments in support of its claim that answering incoming calls categorically falls within the scope of consent to search a phone. First, the government contends that 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) . . . . The government’s second argument seeks to liken 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 . . . , the answering of incoming calls following a consent to search the phones does not exceed the scope of that consent.” Id. at *6 (internal citations omitted).

Held: (1) “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 [the] agent . . .  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 in order to view a text message . . . .

 (2) Because a search warrant is materially different from consent, the government’s argument fails. 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. Thus, we reject the government’s position that consent to search a cell phone extends to answering incoming calls. . . . As a general matter, consent to search a cell phone is insufficient to allow an agent to answer that phone; rather, specific consent to answer is necessary.” Id. at *6-*7.

Of Note: Note Judge Reinhardt’s brush-back of the government’s assumption that cops can read text messages on a seized cell phone. That issue lives to fight another day (despite ongoing snooping by NSA).

How to Use: Lopez-Cruz is a very good Fourth case, and a great standing decision. Remember the claim that these were a friend’s phones? Nonetheless, Judge Reinhardt upholds the finding that Lopez-Cruz retained standing, id. at *4, and did not abandon the phones, id. at *5. A welcome and valuable standing opinion.
For Further Reading: Judicial Conference Secretary Judge John Bates has written to President Obama seeking funds (and of more specific interest, money for Defender organizations and CJA counsel). See letter here.  Who knows how that will affect the push for a continuing resolution? The only present certainty on the Hill is uncertainty. See Roll Call article here.

Image of Agent Smart from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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