United States v. Andres Lopez-Cruz ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50551
Plaintiff-Appellant,
D.C. No.
v. 3:11-cr-01507-JLS-1
ANDRES LOPEZ-CRUZ,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted
January 7, 2013—Pasadena, California
Filed September 12, 2013
Before: William C. Canby, Jr., Stephen Reinhardt, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt
2 UNITED STATES V. LOPEZ-CRUZ
SUMMARY*
Criminal Law
The panel affirmed the district court’s order suppressing
evidence obtained when a border patrol agent answered
incoming calls on the defendant’s cell phones, and the denial
of the government’s motion for reconsideration of the
suppression order, in a case in which the defendant is charged
with conspiracy to transport illegal aliens.
Rejecting the government’s contention that the defendant
lacked standing, the panel held that the defendant had a
reasonable expectation of privacy in the phones, and that the
district court did not clearly err in finding that the evidence
fell short of demonstrating an unequivocal abandonment.
The panel held that the agent’s answering the calls
exceeded the scope of the defendant’s consent to “look in” or
“search” the phones. Without deciding the constitutionality
of whether an agent can read incoming text messages on a
phone he has been given consent to search, the panel rejected
the government’s attempts to liken incoming calls to text
messages and to liken the consent given by the defendant to
the contents of a search warrant.
The panel held that the district court did not abuse its
discretion in denying the government’s motion for
reconsideration to consider an argument, raised for the first
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. LOPEZ-CRUZ 3
time in that motion, that exigent circumstances justified
answering the calls.
COUNSEL
Laura E. Duffy, United States Attorney; Bruce R. Castetter,
Assistant United States Attorney, Chief, Appellate Section,
Criminal Division; Daniel E. Butcher (argued), Assistant
United States Attorney, United States Attorneys’ Office, San
Diego, California, for Plaintiff-Appellant.
Devin Burstein (argued), Federal Defenders of San Diego,
Inc., San Diego, California, for Defendant-Appellee.
OPINION
REINHARDT, Circuit Judge:
When Andres Lopez-Cruz (“Lopez”) gave a border patrol
agent permission to “look in” or “search” the two cell phones
he had with him, the agent did not ask him whether he would
also consent to the agent’s answering any incoming calls.
Nonetheless, when one of the phones rang while the agent
was conducting his search, he answered it, passing himself
off as Lopez. By answering the call, the agent obtained
information leading to Lopez’s arrest and felony charges of
conspiracy to transport illegal aliens under 8 U.S.C. §§ 1324(a)(1)(A)(ii) and (v)(I). Lopez moved to suppress the
evidence obtained from the phone calls. The district court
granted the motion to suppress and denied the government’s
motion for reconsideration. The government appeals.
4 UNITED STATES V. LOPEZ-CRUZ
FACTUAL BACKGROUND
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.”
UNITED STATES V. LOPEZ-CRUZ 5
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.
PROCEDURAL BACKGROUND
Before trial, Lopez filed a motion to suppress the
evidence obtained when the agent answered the incoming
calls. He contended that the agent exceeded the scope of his
consent. Lopez submitted a declaration stating that he “didn’t
understand that [he] had a choice to say no” when the agents
asked for consent to search the phones and that “[i]t never
occurred to [him] that agents were going to answer incoming
calls on the cell phone.” He further stated that “[h]ad [he]
believed that agents would answer the phones, [he] never
would have given [his] permission to search the phones.”
The government argued that Lopez did not have standing to
contest the search because he disclaimed ownership of the
6 UNITED STATES V. LOPEZ-CRUZ
phones, or, in the alternative, that answering incoming calls
fell within the scope of Lopez’s consent. The district court
held an evidentiary hearing at which Agent Soto testified and
was cross-examined. After hearing evidence, the district
court requested further briefing on whether answering an
incoming call falls within the scope of consent to search a cell
phone.
Ultimately, the district court granted Lopez’s motion to
suppress. The court found that Lopez had standing to
challenge the search of the cell phones because “the phones
were in the possession of the defendant and being used by the
defendant at the time of the encounter.” On the scope of
consent issue, the district court applied the “objective
reasonableness standard” and determined that Lopez’s
consent “was limited to an examination of the phone itself
and that further legal justification was required before the
agents answered it.” After full exploration of the issue
through briefing, a hearing, and supplemental briefing, the
district court held that a reasonable person would not “believe
that a consent to look at or search a cell phone would include
consent to answer incoming calls.”
The government, receiving the district court’s permission,
filed a motion for reconsideration. In its motion, the
government contended for the first time that the agent’s
answering of the incoming call was justified by the exigent
circumstances exception to the warrant requirement. The
district court declined to consider the newly raised argument
for two reasons. First, it found that the new evidence that the
government offered “was available at the time of the
evidentiary hearing.” Second, it found that the government
did not “raise[] the exigent circumstances argument in the
initial or supplemental briefing submitted when the court first
UNITED STATES V. LOPEZ-CRUZ 7
considered [the] motion to suppress.” Based on these facts,
the district court “decline[d] to exercise its discretion” to
grant the motion to reconsider. The district court went on to
conclude that in the alternative, even if it were to consider the
newly raised exigent circumstances argument, it would have
rejected it because the agent did not have probable cause.
The government appeals both the order granting Lopez’s
motion to suppress and the order denying the government’s
motion for reconsideration.
DISCUSSION
I. Standing
We review de novo the district court’s conclusion that
Lopez had standing to claim that his Fourth Amendment
rights were violated when the agent answered incoming calls
intended for Lopez. See United States v. Reyes-Bosque, 596
F.3d 1017, 1026 (9th Cir. 2010). We review the underlying
factual findings for clear error. Id.To have standing to seek suppression of the fruits of the
agent’s search, Lopez must show that he personally had “a
property interest protected by the Fourth Amendment that
was interfered with . . . , or a reasonable expectation of
privacy that was invaded by the search.” United States v.
Padilla, 111 F.3d 685, 688 (9th Cir. 1997) (quoting United
States v. Padilla, 508 U.S. 77, 82 (1993)). Here, elements of
both requirements support the district court’s conclusion that
Lopez had standing to contest the agent’s reception of the
phone calls.
8 UNITED STATES V. LOPEZ-CRUZ
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.”’ Katz v. United States, 389 U.S.
347, 361 (1967) (Harlan, J., concurring). In short, it turns on
whether the individual’s subjective expectation of privacy is
objectively reasonable. United States v. Ziegler, 474 F.3d
1184, 1189 (9th Cir. 2007) (citation omitted).1
The district court found that “the location of the phones
within the vehicle suggest [sic] that the phones were in the
possession of the defendant and being used by the defendant
at the time of the encounter.” It also noted that “the agents
apparently drew a similar conclusion by seeking defendant’s
consent before seizing the phones.” The district court’s
factual conclusion—that Lopez had possession of and was
using the phones—is not clearly erroneous. Possession and
use of the phones suffices to make Lopez’s expectation of
privacy objectively reasonable.
Nonetheless, the government argues that Lopez lacks
standing because (1) he did not carry his burden by presenting
affirmative evidence of ownership or permission to use the
1
The parties dispute which of two automobile search cases controls.
Lopez argues that United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980)
controls. The government argues that the controlling case is United States
v. Thomas, 447 F.3d 1191 (9th Cir. 2006). Both of these cases, however,
involved the question whether defendants had standing to object to the
search of the vehicle. In contrast, here, the question is whether Lopez has
standing to challenge the search of the phones—items of property not
recovered from a search of the vehicle but possessed by Lopez and handed
over to the agents with consent to search them. Thus, neither Portillo nor
Thomas controls here.
UNITED STATES V. LOPEZ-CRUZ 9
seized phones; or, (2) if he met his threshold burden, he
abandoned any reasonable expectation of privacy when he
renounced ownership of the phones. We reject both
arguments.
First, as the government points out, Lopez bears the
burden of establishing standing. The government is incorrect,
however, in asserting that Lopez could not have carried his
burden without providing proof of ownership or additional
proof that he had permission to use the phones beyond the
facts that were already in the record. Contrary to the
government’s assertions, the fact of ownership or permissive
use is merely one factor among many that aids in determining
whether the individual had a reasonable expectation of
privacy in the item searched. See United States v. Sarkisian,
197 F.3d 966, 987 (9th Cir. 1999) (“[T]he failure to allege
ownership of the items seized, by itself, could not bar
standing to challenge the search,” although it is “a factor to be
considered.”). Although we have not announced a precise set
of factors to be considered in determining whether there
exists a reasonable expectation of privacy, the Fifth Circuit
considers:
whether the defendant has a property or
possessory interest in the thing seized or the
place searched, whether he has a right to
exclude others from that place [or the thing
seized], whether he has exhibited a subjective
expectation of privacy that it would remain
free from governmental intrusion, whether he
took normal precautions to maintain privacy,
and whether he was legitimately on the
premises [or legitimately in possession of the
thing seized].
10 UNITED STATES V. LOPEZ-CRUZ
United States v. Finley, 477 F.3d 250, 258–59 (5th Cir. 2007)
(quoting United States v. Cardoza–Hinojosa, 140 F.3d 610,
615 (5th Cir. 1998)) (original alterations and quotation marks
omitted). Although we do not adopt the Fifth Circuit’s list of
factors as exhaustive, they are among the factors that are
generally relevant to our analysis.
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. We conclude,
therefore, that Lopez had a reasonable expectation of privacy
in the phones.
The government’s second argument is that Lopez lacks
standing because he voluntarily abandoned the cell phones,
thereby abandoning any expectation of privacy in them. The
government argues that Lopez abandoned any privacy interest
in the phones when he told the officer that they belonged to
a friend. The touchstone of “abandonment is a question of
intent,” however. United States v. Nordling, 804 F.2d 1466,
1469 (9th Cir. 1986). We conduct a “totality of the
circumstances” inquiry that “focus[es] on whether, through
words, acts or other objective indications, a person has
relinquished a reasonable expectation of privacy in the
property at the time of the search or seizure.” Id. (citations
omitted).
UNITED STATES V. LOPEZ-CRUZ 11
The district court’s factual findings that “the phones were
in the possession of [Lopez] and being used by [him] at the
time of the encounter” were not clearly erroneous, and,
therefore, the government cannot reasonably claim that Lopez
abandoned the privacy interest simply by denying ownership.
The district court’s factual findings support the conclusion
that Lopez did not abandon his reasonable expectation of
privacy in the phones. It found that “[Lopez] told Agent Soto
that the phones belonged to a friend, but he did not disclaim
use of them or otherwise disassociate himself from them.”
Further, as the district court explained, the fact that the agent
sought Lopez’s permission before searching the phones
suggests that the agent did not believe that Lopez had
abandoned his privacy interest in the phones, and contradicts
the government’s position that his actions exhibited a clear
abandonment of them.
Moreover, 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. For example, in United States v. Decoud, the
defendant disclaimed ownership, but he also explained that
“he did not know how to open” the locked briefcase found in
the trunk of the car that he was driving, thus denying any
form of association with the briefcase. 456 F.3d 996, 1001
(9th Cir. 2006). Likewise, in Nordling, we concluded that the
defendant had abandoned his luggage because he knowingly
left it on the plane under a seat when he was escorted off by
officials and twice denied having had any luggage with him
on the flight. 804 F.2d at 1469–70. Because Lopez’s case
involves only his response to the agent’s question as to
whether the phones were his rather than any affirmative
denial of any association with the phones, the district court’s
conclusion that “the evidence in this case fell short of
12 UNITED STATES V. LOPEZ-CRUZ
demonstrating an unequivocal abandonment of the property”
was not clearly erroneous.
II. Scope of Consent
“It is a violation of a suspect’s Fourth Amendment rights
for a consensual search to exceed the scope of the consent
given.” United States v. McWeeney, 454 F.3d 1030, 1034
(9th Cir. 2006). The district court determined that the agent’s
act of answering the incoming phone call exceeded the scope
of Lopez’s consent. We review “[a] district court’s finding
as to the scope of consent [] for clear error.” United States v.
Huffhines, 967 F.2d 314, 319 (9th Cir. 1992). The
government argues that the standard of review should be de
novo because this case presents the legal question of whether
a general consent to search a phone includes consent to
answer it. See United States v. Shaibu, 920 F.2d 1423, 1425
(9th Cir. 1990) (noting that a pure question of law in Fourth
Amendment cases is reviewed de novo). Because we reach
the same result under either standard, we consider whether
consent to search a phone, without more, generally includes
consent to answer it.
The scope of consent is determined by asking “what
would the typical reasonable person have understood by the
exchange between the officer and the suspect?” Florida v.
Jimeno, 500 U.S. 248, 251 (1991). The test is an objective
one. The district court explained that a reasonable person
would not “believe that a consent to look at or search a cell
phone would include consent to answer incoming calls.” It
held that Lopez’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.”
UNITED STATES V. LOPEZ-CRUZ 13
At the suppression hearing, the agent testified that he
asked Lopez: “Can I look in the phones? Can I search the
phones?” Lopez submitted a declaration that stated: “It
never occurred to me that agents were going to answer
incoming calls on the cell phone. Had I believed that agents
would answer the phones, I never would have given my
permission to search the phones.” Applying the Jimeno
“reasonable person” standard to these facts, the district court
determined that Lopez’s consent to search the phones did not
extend to answering incoming calls. The district court’s
ruling was correct.
Nonetheless, the government presses two arguments in
support of its claim that answering incoming calls
categorically falls within the scope of consent to search a
phone. 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). Without deciding the constitutionality of
whether an agent can read incoming text messages on a phone
he has been given consent to search, we reject the
government’s attempt to liken incoming calls to text
messages. 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.
Here, agent Soto did so by answering a call, concealing the
14 UNITED STATES V. LOPEZ-CRUZ
fact that he was a border patrol agent, and leading the caller
to believe that the information he was exchanging was with
Lopez.
The government’s second argument seeks to liken the
consent given by Lopez to the contents of a search warrant.
The government reasons that because we held that answering
incoming calls did not exceed the scope of the relevant search
warrant in two cases, United States v. Ordonez, 737 F.2d 793,
810 (9th Cir. 1984) (amended opinion), and United States v.
Gallo, 659 F.2d 110 (9th Cir. 1981), the answering of
incoming calls following a consent to search the phones does
not exceed the scope of that consent. Because a search
warrant is materially different from consent, the
government’s argument fails.
A search pursuant to a warrant is “limited by the extent of
the probable cause” on which the warrant is based. In re
Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847,
857 (9th Cir. 1991). In contrast, a search pursuant to consent
is limited by the extent of the consent given for the search by
the individual. Jimeno, 500 U.S. at 251. Unlike a scope of
the search warrant case, in which we review for whether the
evidence seized was “reasonably related to the purpose of the
search” (that is, reasonably related to the probable cause
supporting the issuance of the warrant), Ordonez, 737 F.2d
at 810, in a scope of consent case, we review for what “the
typical reasonable person [would] have understood” the
parties to have said to each other, Jimeno, 500 U.S. at 251.
Agent Soto did not have a warrant. Accordingly, he did
not have authority to search for evidence that might have
fallen within the scope of a warrant that he did not have. The
only authority to search that agent Soto had was pursuant to
UNITED STATES V. LOPEZ-CRUZ 15
Lopez’s consent. Accordingly, the government’s position
that the reasoning of Gallo and Ordonez applies here is
simply incorrect. An individual who gives consent to the
search of his phone does not, without more, give consent to
his impersonation by a government agent, nor does he give
the agent permission to carry on conversations in which the
agent participates in his name in the conduct of criminal
activity.
Thus, we reject the government’s position that consent to
search a cell phone extends to answering incoming calls.
Here, the agent’s answering of the phone exceeded the scope
of the consent that he obtained and, thus, violated Lopez’s
Fourth Amendment right. 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.
III. The Motion for Reconsideration
The government asks us to reach and accept its argument,
raised for the first time on a motion to reconsider before the
district court, that exigent circumstances justified the
answering of the phone calls. The district court declined to
exercise its discretion to consider this belated argument. It
found that “the exigent circumstances argument was not
raised in the initial or supplemental briefing submitted when
the court first considered Defendant’s motion to suppress,”
and that the new evidence, a declaration from agent Soto
going to his probable cause for the search “was available at
the time of the evidentiary hearing” but not presented to the
court. The district court reasoned:
Afterthoughts or shifting ground do not
constitute an appropriate basis for
16 UNITED STATES V. LOPEZ-CRUZ
reconsideration. *** Nor is a motion to
reconsider justified on the basis of new
evidence which could have been discovered
prior to the court’s ruling. Accordingly, with
respect to the government’s exigent
circumstances argument, the court finds no
valid basis for reconsideration of its prior
order and declines to exercise its discretion in
this regard.
Although the government contends that the district court
incorrectly relied on the law of the case doctrine, it
misunderstands the district court’s ruling.2 The district court
cited the law of the case doctrine in another part of its
decision, but did not rely on that doctrine when declining to
exercise its discretion to consider the government’s exigent
circumstances argument.
We review the district court’s denial of a motion to
reconsider for abuse of discretion. United States v.
Tapia-Marquez, 361 F.3d 535, 537 (9th Cir. 2004); see
United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.
2009) (en banc). No precise “rule” governs the district
2
The district court cited the law of the case when declining to reconsider
its earlier ruling that Lopez had standing—the government’s first basis for
reconsideration—but that discussion was not relevant to the government’s
new argument of exigent circumstances, which constituted the
government’s second and entirely separate basis for reconsideration. As
explained in the text, infra, in deciding the government’s second basis for
reconsideration, the district court appropriately declined to exercise its
discretion to consider an argument not previously raised. It did not
mention or rely on law of the case.
UNITED STATES V. LOPEZ-CRUZ 17
court’s inherent power to grant or deny a motion to reconsider
a prior ruling in a criminal proceeding. Rather, the district
court’s authority to revisit a ruling on a suppression motion
“is within its sound judicial discretion.” United States v.
Raddatz, 447 U.S. 667, 678 n.6 (1980). In United States v.
Wong, we affirmed a denial of a motion for reconsideration
of a suppression order because the new evidence “could
readily have been presented at the original hearing on the
motion to suppress” and because the defendant offered no
excuse for the failure to do so. 470 F.2d 129, 132 (9th Cir.
1972). Here, the district court exercised its discretion in a
manner consistent with these cases, declining to consider an
argument and evidence that the government failed to raise in
its opposition to the motion to suppress, in the hearing on the
motion, in its briefing before the hearing, or in its
supplemental briefing after the hearing on the motion.
The government gives no reason for its failure to raise or
argue exigent circumstances prior to the district court’s grant
of the motion to suppress. Instead, it wishfully asserts that it
did raise the exigent circumstances exception in its initial
briefing. It says that it did so inferentially by citing to United
States v. Davis, 787 F. Supp. 2d 1165 (D. Or. 2011), which
discussed a number of exceptions to the warrant requirement,
including the exigency exception. Not only did the
government quote from a section of Davis having little to do
with the exigent circumstances exception, but nowhere in its
briefing did the government mention exigency or probable
cause.3
3
While the government cited Davis in its opposition, the section quoted
discusses the exigent circumstances exception only briefly. The section
of Davis that fully discusses and disposes of the exigency exception was
not cited. The district court did not abuse its discretion in determining that
18 UNITED STATES V. LOPEZ-CRUZ
The district court did not abuse its discretion in denying
the motion for reconsideration. Its reason for denying the
motion to reconsider was logical, plausible, and supported by
inferences drawn from the record. Hinkson, 585 F.3d at
1262. We know of no case reversing a district court for
exercising its discretion in this manner, and the government
cites none.4
CONCLUSION
For the reasons discussed above, we AFFIRM the district
court’s order suppressing the evidence obtained by answering
Lopez’s cell phones and AFFIRM the district court’s denial
of the government’s motion for reconsideration.
AFFIRMED.
such cursory treatment by the government was insufficient to raise the
exigency exception. This is especially the case because the government
never discussed exigency or probable cause. Further, the government
cited to Davis only to argue that Lopez gave agent Soto permission to
answer the cell phones, not to argue that a separate exception to the
warrant requirement existed.
4
In view of our holding, supra, we do not consider the district court’s
alternative holding that neither probable cause nor exigent circumstances
existed.
The government raises another new argument in its reply brief, citing
Hudson v. Michigan, 547 U.S. 586 (2006)). This argument is waived. See
Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).