You get busted at the border and the border agent wants to search your cell phone. While the agent searches the call log, with your permission, a call comes in. If the agent answers the call and poses as you, can the incriminating evidence he gathers be suppressed?
Oh yeah, says the 9th U.S. Circuit Court of Appeals in a decision Thursday, upholding a San Diego judge’s decision in an alien smuggling case.
Andres Lopez-Cruz had two phones in his possession and was using them at the time he was stopped, and that “suffices to make Lopez’s expectation of privacy objectively reasonable,” said Judge Stephen Reinhardt.
But then it gets a little muddy.
The panel also rejected the government’s argument that Lopez lacked standing to challenge the evidence when he denied he owned the phones. He said they belonged to a friend.
Reinhardt points out the 9th Circuit has not “announced a precise set of factors to be considered in determining whether there exists a reasonable expectation of privacy.”
But 5th Circuit has. It said judges should consider if: the defendant possessed the property seized, had a right to exclude others from it, showed an expectation of privacy, took precautions to maintain privacy and it was legitimately in his possession.
“Although we do not adopt the Fifth Circuit’s list of factors as exhaustive, they are among the factors that are generally relevant to our analysis,” Reinhardt said.
Got that? Consider these, but there might be more. We’re just not saying what they might be.
Cruz gave a border patrol agent permission to “look in” two cell phones he had when he was stopped near Jacumba, California, an area near the Mexican border known for smuggling undocumented individuals.
Lopez told the agent two phones belonged to a friend he had stopped to pick up from a nearby casino. He allowed the agent to search the phones. A minute later the phone rang and the agent posed as Lopez and answered the phone. Eventually, agents followed the caller’s instructions and picked up two Mexican citizens without documents. And they arrested Lopez.
Lopez argued he would never have given consent to search if he knew the agent would answer incoming calls.
Joining Reinhardt are Judges William Canby and Kim Wardlaw.
Case: U.S. v. Lopez-Cruz, No. 11-50551