Argued and Submitted January 7, 2013—Pasadena, California
Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding D.C. No. 3:11-cr-01507-JLS-1
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.
Before: William C. Canby, Jr., Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges.
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 time in that motion, that exigent circumstances justified answering the calls.
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.
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 ...