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Fourth Amendment update: Consent to search phone doesn’t include allowing agents to answer phone

Sep 16, 2013

In United States v. Lopez-Cruz, the 9th Circuit held last week that a police officer may not answer a person’s cell phone and impersonate that individual based on consent to look at a phone.  In the case, Lopez-Cruz was stopped by agents near the Mexico border and he had two cellphones in his center console.  Agents asked to look at the phones.  He consented to a search of the phones.  One of the cellphones rang, and the agent answered it and detected alien smuggling activity.  Lopez-Cruz moved to suppress the details of the conversation.  The 9th Circuit upheld the suppression decision by the district court, holding that the agents went too far in assuming the identity of Lopez-Cruz and having a conversation on his behalf.  Contrary to the government’s argument, the Court held that his consent to search the phone did not include consent for the agents to answer his personal calls.

The case is: United States v. Lopez-Cruz, 2013 WL 4838908 (9th Cir. Sept. 12, 2013).

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