The Ninth Circuit recently decided a case that addresses a question I’ve been asked several times: may the police answer a seized cell phone? The answer may depend on the basis for, and circumstances of, the seizure. On the facts before the Ninth Circuit, the court answered no. The Ninth Circuit case. The case is United States v. Lopez-Cruz, __ F.3d __, 2103 WL 4838908 (9th Cir. Sept. 12, 2013). It arose when two border patrol agents working near the Mexican border saw a driver “‘brake tapping,’ behavior that the agent[s] recognized as consistent with people being ‘guided in to pick up somebody or something.’” The agents stopped the car and began talking with the driver. The conversation heightened the officers’ suspicion that the driver was involved in alien smuggling. The officers noticed two phones in the console of the car and one asked the driver, “Can I look in the phones? Can I search the phones?” The driver said yes, and the officer took possession of the phones. One rang several times, and each time the officer answered it, essentially posing as the driver and having conversations about how the pickup was going and where to find the aliens who needed to be picked up. The driver was charged with alien smuggling, and moved to suppress the information obtained by the agent during the telephone conversations, arguing that the agent exceeded the scope of the defendant’s consent when he answered the phone. The district court judge granted the motion, the [...]
Faculty Coordinators
