After border patrol agents pulled over Andres Lopez-Cruz near the U.S.-Mexico border in Jacumba, California, Lopez-Cruz gave them consent to search his phone. But when Lopez-Cruz’s phone rang, an agent answered it — twice — and pretended to be Lopez-Cruz in responding to the callers on the other end.
In a unanimous ruling Thursday, a federal appeals court held a border agent violated the Fourth Amendment when he impersonated a phone’s owner and answered calls on his behalf — even though he had consent to search his phone.
“[C]onsent to search a cell phone is insufficient to allow an agent to answer that phone; rather, specific consent to answer is necessary,” Judge Stephen Reinhardt wrote for the U.S. Court of Appeals for the Ninth Circuit.
The ruling means that evidence will be suppressed that led to a charge for conspiracy to transport illegal aliens. After Agent Bernardino Soto answered Lopez-Cruz’s cell phone and a caller said in Spanish, “How many did you pick up?” Soto replied “none” and the caller hung up. When Soto answered the phone a second time, someone asked, “How did it go?” and he answered, “I didn’t pick up anybody. There was too many Border Patrol in the area.” The caller then directed Soto to a house, Soto arrested Lopez-Cruz and then went to the house to find two undocumented individuals from Mexico.
In arguing that Soto’s action was improper, Lopez-Cruz said he never would have thought that his consent to search the phone would mean consent to answer the phone, and the court agreed, holding an individual who consents to a search does not have a “reasonable expectation” that an officer will proceed to use his phone as if he is the owner.
The government had argued that answering the phone was effectively similar to reading incoming text messages. In addressing this argument, Reinhardt pointed out that a court has not determined whether that is constitutional, either. And even if it were, answering a call is distinctly different, he held.
Had Lopez-Cruz not authorized police, even the search of the phone itself would have been an open legal question. As police who stop individuals on the street or in cars have more capacity than ever to obtain information by seizing their items, courts are split on whether electronics searches should require a search warrant. Another issue now wending its way through courts is whether police can track cell phone location data without a warrant.
Border agents, in particular, are given tremendous leeway to perform stops at the border — a capacity law enforcement has recently exploited to authorize expansive searches of electronics. This same appeals court recently held in another case that border agents exceeded the Fourth Amendment when they seized a man’s laptops at the border and performed a forensic search of its contents for two days.
(HT: The Recorder)