Even During Consensual Phone Search, Incoming Calls Are Still Private
During a routine stop, defendant Andres Lopez-Cruz authorized a border patrol agent to “look in” or “search” the two cell phones he had with him. During the search, one of the phones rang, and the agent answered it, pretending to be Lopez, and as a result of that call, information was received which ultimately led to Lopez’s arrest and subsequent felony charges for conspiracy to transport illegal aliens. Lopez moved to suppress the evidence that came out of that phone call, and the district court granted that motion. The government appealed, and last week, the Ninth Circuit issued its opinion.
The focus of the Ninth’s Circuit’s analysis is, not surprisingly, whether there’s an expectation of privacy in the incoming calls, even when during an authorized phone search. Citing Katz, a SCOTUS case from 1967, the opinion lays out the standard:
The reasonable expectation of privacy turns on (1) whether the person had “an actual (subjective) expectation of privacy,” and (2) whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as `reasonable.”‘
For its part, the prosecution argued that Lopez lacked standing because:
(1) he did not carry his burden by presenting affirmative evidence of ownership or permission to use the seized phones; or, (2) if he met his threshold burden, he abandoned any reasonable expectation of privacy when he renounced ownership of the phones.
The opinion finds sufficient evidence to indicate that Lopez did indeed have a reasonable expectation of privacy:
As the district court found from the facts in the record, Lopez had possession of the phones and was using them. 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.” Finley, 477 F.3d at 259 (citation omitted). Lopez “took normal precautions to maintain privacy,” id., in that he did not abandon or throw the phones out of the car when the agents stopped him. Finally, no evidence suggested that Lopez did not legitimately possess the phones.
The government’s second contention, that any expectation of privacy was abandoned when he voluntarily handed them over to the agent, is also not found to be convincing, as “none of our “abandonment” cases has held that mere disavowal of ownership, without more, constitutes abandonment of a person’s reasonable expectation of privacy in that property.”
Next, the Ninth Circuit looks at the scope of Lopez’s consent, which comes down to a reasonable person standard - “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” – and it’s quickly held that a reasonable person would not have expected a search of the phones to entail actually answering incoming calls. The government has two rebuttals here, too:
First, the government contends that answering a call is no different from pushing a button to read an incoming text message (which it assumes would fall within the scope of a general consent) …When an agent answers the incoming call and engages the caller in conversation, as agent Soto did here, he intercepts a call intended for the individual in possession of the phone and pretends to be that person in order to obtain information or create a new exchange with the caller. 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. 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.
The government’s second argument relates to search warrants, but since there was no warrant used in this particular exchange, that argument is also dismissed.