The Limits of Consent: Cellphone Edition

In a relatively short decision out of the 9th Circuit, Judge Stephen Reinhardt addresses a very important question in his opinion in United States v. Lopez-Cruz affirming the district court’s grant of suppression.  The defendant was in a car believed by Border Patrol Agent Soto (that narrows it down, right?) to be picking up people who had illegally cross the border.  After the stop, Soto 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.”

Any guesses what happened next? That’s right, the phone rang, and Agent Soto answered.  The conversation that followed, together with the next few phone calls and conversations, locked up the question of what Lopez was up to, and it didn’t turn out well for Lopez.

The government’s initial attack was Lopez’s standing to move to suppress, as the agent asked if the cellphones were his, and Lopez told him they belonged to his friend. The government argued that this constituted abandonment, but the court held that the assertion of lack of ownership did not preclude the right to possession and use of his friend’s cellphone.

The bigger question arose from whether Lopez’s consent to the agent’s “look in” or “search of” the cellphone was understood to be consent to answer incoming telephone calls as well. Lopez asserted that he never consented to the agent answering the phone:

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.

While this may seem utterly obvious to most people, that consent to look at a cellphone does not constitute consent to answer calls, it’s a fairly remarkable holding. Ordinarily, consent to an agent doing anything with regard to a search is stretched to the absolute edge of reason, and usually a bit farther.

Consent to search is almost always deemed permission to have their way with a physical item. For example, when a person agrees to allow an agent to “look around” their car, courts have construed the consent to be permission to take the car apart, removing fenders and gas tanks in the search for drugs.  Just looking, you know.

The government argued that answering an incoming phone call fell “categorically” within the scope of the consent.

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.

Judge Reinhardt’s analysis doesn’t focus on Lopez, but rather on Agent Soto’s affirmative impersonation of Lopez when answering the phone. It raises the question of whether Soto would have exceeded the scope had he answered by saying “Agent Soto” rather than Lopez. Had he not impersonated Lopez, would answering the cellphone have fallen within the scope of the consent?  It’s unclear, but as the holding later suggests, the affirmative act of answering the incoming call was sufficient to exceed the scope of the consent.

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.

This was easily disposed of, as the agent didn’t obtain a warrant and couldn’t take comfort in the breadth of conduct that a warrant might have provided.  Accordingly, the court held:

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.

Given that cellphones, and now smartphones, are ubiquitous, and possess attributes that are “revealing” by both physical inspection (such as texts, emails, websites, photos, videos, and whatever else a person has chosen to save on his drive) and the interception of communications, this is a significant decision.

The amount of deeply personal information available on a smartphone is beyond anything conceivable a generation ago, and the rules of simple consent that would essentially allow an agent to rip the phone to shreds and obtain whatever information exists on a drive merely by asking to “look at it” serve to muddle every concept of actual consent. Yet, courts have interpreted consent to mean allowing police to do anything they please, and that no reasonable person would think otherwise once you’ve allowed the police to have their way with it.

Of course, the better answer is to never consent to a search of anything, but until people learn that lesson, holdings like this that rein in unlimited searches by limiting consent to physically searching a phone (whatever that means) from intercepting incoming communications are a good start.  Far better than letting the agent take the call.

H/T Spencer Neal

5 comments on “The Limits of Consent: Cellphone Edition

  1. Canvasback

    From an engineering standpoint the incoming call was just more data provided by the phone. It was on the speaker instead of the screen and the officer pushed a button to access it. He “had his way with a physical item.” No hacking, no password, no wiretap warrant needed. He had Lopez’s permission (Lopez’s later attempt at retraction notwithstanding). And the impersonation thing was decided long ago – cops can lie in the course of an investigation. It’s part of their training.

    1. A Voice of Sanity

      Even if it is permissible to lie to an accused, or even a suspect, under what legal theory may the police lie to witnesses? What happens if police lies lead to altered testimony in a trial?

      1. Marc R

        Police can lie to anyone but other police. When police lie to police they get charged with falsifying records (misdemeanor) or official misconduct (felony). One means you still get your pension.

  2. brady

    They can lie to the courts, too, so long as they maintain that one consistent lie, and not switch to something else, like the truth, or another different lie, because then they will have two statements that cannot be harmonized. Briscoe v LaHue look it up. read the case. they are immune from lying under oath.

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