Thursday, September 12, 2013

U.S. v. Lopez-Cruz (9th Cir. - Sept. 12, 2013)

Judge Reinhardt -- like the district court -- holds that just because you consent to have someone "search" your phone doesn't mean they're allowed to answer incoming calls and pretend to be you.  Plus holds that the defendant here had standing to object to the search.  Those are pretty straightforward principles, and I can totally get on board with them.

Whether you can read text messages on the phone would be a different issue.  That's much more akin to a straightforward search.  But even though someone could argue that the "search" of a cell phone necessarily involves its manipulation, you can see how extending that principle to hitting the answer button and talking with the person on the other end might involve something qualitatively different.

So the evidence here is suppressed.

That said, to be honest, I'm pretty darn impressed with the police work here.  From the rural portion of my (adopted) hometown, no less:

"One evening, border patrol agent Soto and his partner were patrolling Highway 80 near Jacumba, California, an area near the border with Mexico known for the smuggling of undocumented individuals. The agents began surveillance of Lopez because he was driving a car that they did not recognize as belonging to any of the residents of the nearby small town, and because he was 'brake tapping,' behavior that the agent recognized as consistent with people being 'guided in to pick up somebody or something.' When Lopez
pulled over to the shoulder of the road to make a U-turn, the agents stopped their unmarked SUV behind him and activated the lights to indicate that they were law enforcement personnel.

The agents walked up to the car and agent Soto asked Lopez where he was going and what he was doing. Lopez told him that he was going to pick up a friend, border patrol agent Amawandy, at a nearby casino. He also told the agent that the car that he was driving belonged to a friend. Agent Soto testified that he did not ask Lopez who the friend was, but that Lopez’s “answers changed a lot.”

During their discussion, agent Soto noticed two cell phones in the car’s center console. Soto asked Lopez whether the phones were his and Lopez responded that the phones, like the car, belonged to a friend. The agent then asked, 'Can I look in the phones? Can I search the phones?' Lopez consented by responding 'yes.' When conducting the search of the phones, Soto took them behind the car, out of Lopez’s presence where he could neither 'see [n]or hear what [the agent] was doing with the phones.'

Within about a minute, one of the phones rang. Rather than ignoring the call or asking Lopez’s permission to answer it, the agent answered the phone and initiated a conversation with the caller. The caller asked, 'How many did you pick up?' The agent responded, 'none,' and the caller hung up. The phone rang again less than two minutes later. The agent answered again and a different caller asked, 'How did it go?' The agent replied in Spanish, 'I didn’t pick up anybody. There was [sic] too many Border Patrol in the area.' The caller told him to return to San Diego. Shortly thereafter, the caller phoned again, believing she was speaking with Lopez, but instead informed agent Soto that there were two people next to a house where there was a lot of lighting, and gave instructions to drive there, flash his high beams, and the two people would come out.

The agents arrested Lopez and followed the caller’s instructions, which led them to pick up two people, who
admitted to being Mexican citizens without documents."

Pretty darn smart by agent Soto.  Got consent to search the phones.  Thought incredibly well on his feet when the phone rang, said exactly the right thing to get an incriminating response.  There's no way I'd have been even half as quick.

Sure, in the end, maybe he could have been even smarter.  Asked for consent, for example, to answer the phone.  Might even have gotten it.

But still, even though the evidence is suppressed, not all is lost.  They can still prosecute the defendant if they can get someone to flip.  And even if they can't, Soto and his partner were still able to do their job and catch a couple of undocumented immigrants.  Those people still go back, notwithstanding the suppression.

So it's half a loaf.  But that's still half.

Much less than you'd have to eat if it was Agent Martin on the job.