Border patrol agents, either through experience or training, develop expert, almost magical, observation skills about vehicle behavior that can create a reasonable suspicion of criminal activity.


Andres Lopez-Cruz exhibited such behavior as he drove down Highway 80 near the border town of Jacumba, California—an area known for illegal immigrant trafficking. He was constantly “brake tapping” the vehicle. This behavior attracted the attention of two patrolling border patrol agents. They recognized the “brake tapping” as behavior exhibited by human smugglers being “guided in to pick up somebody or something.” The agents’ law enforcement instincts were further aroused because they did not recognize Lopez’s vehicle as one belonging to any of the residents in Jacumba. They decided to conduct a “Terry stop.”


When approached by the agents and queried about where he was going, Lopez said he was going to pick up a friend at a nearby casino. He informed the agents the vehicle he was driving belonged to the friend. The agents pressed their questioning, prompting Lopez to nervously change his answers a lot.


One of the agents noticed two cell phones in the vehicle’s center console. Lopez said the phones were not his; that they belonged to the owner of the vehicle. The agent then asked Lopez if he could “search” the phones and Lopez consented with a “yes” response. The agent took the phones to the back of the vehicle out of Lopez’s sight where, almost immediately after he began his search, one of them rang. Pretending to be Lopez, the agent responded to the caller’s question “how many did you pick up?” by saying “none.” The caller hung up. A different, female caller called again within two minutes, asking “How did it go?” Speaking in Spanish, the agent responded: “I didn’t pick up anybody. There was too many Border Patrol in the area.” The caller instructed Lopez to return to San Diego where he could pick up two people in a well-lit area. The caller said the two people would come out when Lopez flashed his high beams.


The agents arrested Lopez and proceeded to the area where the second caller said two people were waiting. The agents arrested them as well. Lopez was subsequently indicted for conspiracy to transport illegal aliens. His attorneys filed a pretrial motion to suppress the evidence obtained from the search because the search “exceeded the scope of his consent.” The Government strenuously opposed the motion on two grounds: first, prosecutors argued Lopez did not have “standing” to contest the search because he said the phones did not belong to him, or, alternatively, prosecutors argued that the agent’s answering the calls “fell within the scope of Lopez’s consent.”


The trial court was not persuaded by the Government’s argument. It granted Lopez’s motion to suppress. Prosecutors filed a motion to reconsider which was also denied. The Government then appealed the trial court’s denial of its motion to consider to the Ninth Circuit Court of Appeals which, in September2013, denied the appeal.


With respect to the standing issue, the appeals court followed the lead of the trial court by holding Lopez had standing to challenge the phone search. The Ninth Circuit has adopted the Supreme Court’s standard on “standing” which requires a defendant to show he either had a “protected property interest” under the Fourth Amendment that was interfered with or, alternatively, he had a “reasonable expectation of privacy” that was breached by a search. The appeals court found Lopez had satisfied both elements. Of the two, the reasonable expectation of privacy in cell phones belonging to someone else is the most significant. Such privacy depends on two requirements enunciated by the Supreme Court: 1) whether a person has an “actual (subjective) expectation of privacy” and 2) whether that expectation is “one that society is prepared to recognize as ‘reasonable.’”


Lopez was driving the vehicle and the cell phones were in the vehicle—both of which suggested “possession.” The agent recognized as much because he asked Lopez for “consent” to search them. Further proof of possession was that Lopez did not abandon or throw the phones away when the agents approached the vehicle he was driving. Thus this possession gave Lopez the right to prohibit anyone else from using the phones and, more importantly, it gave him a reasonable expectation of privacy that incoming calls would be free of “governmental intrusion.”


The Government argued that even if Lopez had standing, he relinquished it because he “voluntarily abandoned” it when he told the agent the phones did not belong to him. The appeals court brushed aside this argument, finding that the phones were in Lopez’s possession when the encounter with the agent commenced, and while he may have disclaimed ownership of them, he did not disclaim use of them or “disassociate himself from them.”


The court then turned its attention to the issue of “consent.” A person may give consent to a law enforcement request to search. The Supreme Court has said the “scope of consent” is determined by asking “what would the typical reasonable person have understood the exchange between the officer and the suspect?” The Ninth Circuit said this is an “objective” analysis. With this analysis, the court found that consent to “search” a cell phone does not include “answering” it. The trial court put it this way: 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.” The appeals court agreed, making this final conclusion:


“Agent Soto did not have a warrant. Accordingly, he did not have authority to search for evidence that might have fallen within the scope of a warrant that he did not have. The only authority to search that agent Soto had was pursuant to Lopez’s consent … 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 conduct of criminal activity.”


Once given consent to search a suspect’s cell phone, law enforcement officers routinely answer incoming calls and even initiate calls to numbers stored on the phone in any effort to secure evidence of wrongdoing against the suspect or, as they did in this case, to encourage criminal activity. It’s like giving someone consent to use your car to run a local errand and they take it to rob a bank.


Over the course of this country’s legal history, law enforcement has consistently demonstrated the proclivity to abuse consent to search, we subscribe to the Ninth Circuit’s position that before consent to search can be expanded, there must a request for the expansion and a specific consent given to the expansion.