United States v. Lopez-Cruz

A peace officer exceeds the scope of consent to "look in" or "search" a cellular phone when the officer answers incoming calls, and it is not an abuse of discretion for a district court to deny a motion for reconsideration to “consider an argument, raised for the first time in that motion, that exigent circumstances justified answering the calls.”

Border patrol agents stopped Andres Lopez-Cruz ("Lopez") for suspicion of transporting illegal aliens. Lopez gave the agents permission to "look in" or "search" two cellular phones in his car. The agent took the phones out of the car and out of Lopez's presence. While conducting the search of the phones, the agent posed as Lopez and answered several incoming phone calls. The substance of the phone calls led to Lopez's arrest for transport of illegal aliens. The agents then followed the instructions of one of the callers, which led them to pick up two Mexican citizens without documentation. The district court granted Lopez's motion to suppress, but the court declined to exercise its discretion and grant the motion to reconsider. The government filed a timely appeal. The Ninth Circuit held that Lopez had standing to claim his Fourth Amendment rights were violated because Lopez had possession of the phones and did not disclaim ownership or "abandon" the phones by simply stating that they belonged to his friend. The panel also held that the officer exceeded the scope of consent to search when he answered incoming calls on the phone posing as Lopez. Because the agents had consent to search but did not have a warrant, they were confined to the scope of the consent, which is determined by asking what a reasonable person would have “understood by the exchange between the officer and the suspect[.]" The panel also held that because the motion for reconsideration based on exigent circumstances was not raised at the initial evidentiary hearing, the district court did not abuse its discretion in denying the motion. AFFIRMED.