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Impersonating Suspect on Cell Phone Not Covered by Consent

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By William Peacock, Esq. on September 16, 2013 4:18 PM

Clever cop -- but a bit too clever.

Andres Lopez-Cruz was driving along in San Diego county when he was pulled over by Border Patrol agents for "driving suspiciously." In the back seat were two cell phones, which he granted consent for the agents to search. One of the phones rang during the search, and was answered by one of the agents, who pretended to be Lopez-Cruz, without ever saying as much.

The caller asked, "How many did you pick up?" Agent Soto answered, "None." Another call came through, and this time a woman, asked "How did it go?" The officer responded, in Spanish, "I didn't pick up anybody. There was too many Border Patrol in the area." She then provided an address where two men, who later admitted being in the country illegally, were staying.

Lopez-Cruz was charged with conspiracy to pick up undocumented immigrants, but prosecuting the case will be a bit difficult, now that most of the evidence has been excluded by the Ninth Circuit.

Scope of Consent

The objective test for the scope of consent to search is determined by asking "what would the typical reasonable person have understood by the exchange between the officer and the suspect?"

The district court held that a reasonable person, consenting to a search of the phone itself, would not expect that consent to extend to answering calls and carrying on conversations. Lopez-Cruz'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 Ninth Circuit agreed.

Lopez-Cruz submitted a declaration stating that it did not occur to him that the agents would answer calls, and had he known, he would not have consented.

The government first argued that answering calls is akin to opening a new text message. The Ninth Circuit, without agreeing that reading an incoming text would be constitutional, pointed out the obvious difference between "impersonating" the intended recipient of a call and pushing a button to read a text.

Consent to Search Differs From Search Warrant

In two previous cases, Ordonez and Gallo, the Ninth Circuit held that answering a phone during the execution of a search warrant was constitutional. In those cases, however, the court relied on the principle that a search pursuant to a warrant is limited by the probable cause underlying the warrant, whereas in consent cases, the search is limited to the extent of the consent (as discussed above).

In a warrant case, the court asks whether the evidence seized was reasonably related to the probable cause supporting the warrant. In a consent-to-search case, the court asks what the typical reasonable person would have understood the consent to cover.

The Ninth Circuit affirmed the district court's suppression of the evidence obtained as a result of the answered phone calls. Considering the calls led to, well, pretty much the entire case, that should end things after a remand.

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