Answering Detainee’s Phone Deemed Improper

     (CN) – Consenting to a police search of your cellphone does not empower the officer to answer your incoming calls, the 9th Circuit ruled, suppressing evidence behind alien-smuggling charges.
     Two border patrol agents had stopped Andres Lopez-Cruz near Jacumba, Calif., when they saw him driving a vehicle that they did not recognize as from the area.
     While they questioned him, one agent asked about two cellphones he saw in the vehicle’s center console. Lopez told the agent the phones belonged to his friend, and when the agent asked if he could search the phones, Lopez replied “yes.”
     Within a minute, a series of calls came into the phone, including one where the caller told the agent, who was pretending to be Lopez, the location of a house where two people were waiting to be picked up.
     Following the caller’s instructions, the agents picked up the two people who admitted to being in the United States illegally.
     Lopez was then arrested and charged with conspiracy to transport illegal aliens, but a federal judge in San Diego suppressed the phone evidence.
     The 9th Circuit affirmed Thursday.
     “Lopez had possession of the phones and was using them,” Judge Stephen Reinhardt wrote for a three-judge panel. “He certainly had the right to exclude others from using the phones. He also had a reasonable expectation of privacy in incoming calls and a reasonable expectation that the contents of those calls ‘would remain free from governmental intrusion.'”
     Prosecutors failed to persuade the judge that the agent’s actions were akin to opening an incoming text message.
     “The agent’s impersonation of the intended recipient constitutes a meaningful difference in the method and scope of the search in contrast to merely pushing a button in order to view a text message,” Reinhardt wrote. “The agent is not simply viewing the contents of the phone (whether incoming text messages or stored messages), but instead, is actively impersonating the intended recipient.” (Parentheses in original.)
     Reinhardt and his colleagues also disagreed with the government that Lopez’s consent to the search of the phones was the same as giving the agent a search warrant.
     “As a general matter, consent to search a cell phone is insufficient to allow an agent to answer that phone; rather, specific consent to answer is necessary,” Reinhardt wrote.

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