Ninth Circuit: Officers need specific consent to answer your phone
Listen to this articleThe Fourth Amendment prohibits unreasonable searches and seizures and requires a search warrant to be supported by probable cause.
Smartphones, GPS, and a slew of other advances in technology just made that really complicated. With these new tech toys came a truck load of issues that James Madison never envisioned when he introduced the bill to Congress. The latest: Can a police officer answer your cell phone during a search of that phone and pretend to be you, when you’ve given consent to search the phone?
In California, the answer is No. UNITED STATES V. LOPEZ-CRUZ, argued before the United States Court of Appeals, Ninth Circuit, gave cell phone users some degree of clarity about what’s constitutional and what’s not.
The case came about when a border patrol agent answered an incoming call on Lopez’s cell phone, pretending to be Lopez. By answering the call, the agent gained enough information to arrest Lopez on felony charges of conspiracy to transport undocumented immigrants.
The district court ruled to suppress the evidence obtained from the call. The government objected to the suppression, but lost and appealed. The Court of Appeals affirmed the lower court ruling.
What the ruling means
Yes, we do have a reasonable expectation of privacy in our phones, however if we give consent to “search” a cell phone, we’re not giving permission to answer the phone. A reasonable person would not equate consent to search a cell phone with consent to answer an incoming call.
This goes beyond the scope of the consented search. The government argued that incoming calls are equivalent to text messages. Incoming calls are not the same thing as text messages, so says the Court of Appeals. The impersonation changes the scope of the search.
It’s not the same as pushing a button to read a text message. The government also argued that Lopez’s consent was the same as the contents of a search warrant. Not so. A search based on consent is limited by the extent of the consent given by the individual.
A search warrant is based on probable cause where the court determines whether the evidence seized was “reasonably related to the purpose of the search.” In short, an officer can’t get your consent to look at your phone, answer it, and impersonate you.
What the Court of Appeals did not determine with this ruling was the constitutionality of whether an agent can read incoming text messages.
Kimberly worked as a broadcaster from high school until her first year of law school. She’s a graduate from California Western School of Law. She currently works as a litigation law clerk in Southern California and is passionate about news, legal journalism, economic crime, and new technology. Kimberly lives in Southern CA, but is an east coast native. In her spare time, Kimberly loves going to live concerts and hanging out in Santa Monica.