The Ninth Circuit recently decided a case that addresses a question I’ve been asked several times: may the police answer a seized cell phone? The answer may depend on the basis for, and circumstances of, the seizure. On the facts before the Ninth Circuit, the court answered no.
The Ninth Circuit case. The case is United States v. Lopez-Cruz, __ F.3d __, 2103 WL 4838908 (9th Cir. Sept. 12, 2013). It arose when two border patrol agents working near the Mexican border saw a driver “‘brake tapping,’ behavior that the agent[s] recognized as consistent with people being ‘guided in to pick up somebody or something.’” The agents stopped the car and began talking with the driver. The conversation heightened the officers’ suspicion that the driver was involved in alien smuggling. The officers noticed two phones in the console of the car and one asked the driver, “Can I look in the phones? Can I search the phones?” The driver said yes, and the officer took possession of the phones. One rang several times, and each time the officer answered it, essentially posing as the driver and having conversations about how the pickup was going and where to find the aliens who needed to be picked up.
The driver was charged with alien smuggling, and moved to suppress the information obtained by the agent during the telephone conversations, arguing that the agent exceeded the scope of the defendant’s consent when he answered the phone. The district court judge granted the motion, the government appealed, and the Ninth Circuit affirmed. It ruled that a reasonable person would not have understood from the exchange between the officer and the defendant that the defendant was giving the officer permission to answer the phone. The court emphasized that the officer was “not simply viewing the contents of the phone . . . but instead . . . [was] actively impersonating the intended recipient” of the calls. The court distinguished several cases in which it had ruled that a search warrant authorized officers to answer a telephone, noting that “[a] search pursuant to a warrant is limited by the extent of the probable cause on which the warrant is based,” while “a search pursuant to consent is limited by the extent of the consent given for the search by the individual.”
Other authorities. I’m not aware of a North Carolina case on point. A few minutes on Westlaw revealed several other out-of-state cases in this area. The cases deal with multiple types of seizures, and multiple legal arguments for suppression. For example, some of the cases address whether an officer who answers a phone and poses as someone else unlawfully intercepts a communication, an issue not raised in Lopez-Cruz.
A majority of the cases that I found ruled in the prosecution’s favor, and it may be worth noting that the author of the Ninth Circuit opinion was Stephen Reinhardt, one of that court’s liberal lions and a frequent subject of Supreme Court reversals. Generally, though, I think it’s fair to say that the issue is unsettled. For reasons I may address in a later post, it looks like the Supreme Court may take a cell phone search case in the upcoming Term, and perhaps the Court’s opinion in that case will provide useful guidance on this issue.
For a sampling of the cases in this area, see the following:
- Commonwealth v. Rosa, 21 A.3d 1264 (Pa. Super. 2011). The court considered two functionally identical cases. In each, narcotics officers seized arrestees’ phones, answered the phones when they rang, and arranged drug deals that resulted in the arrests of additional defendants. In each case, the trial court ruled that the officer’s use of the phone violated the state’s wiretap laws and therefore suppressed the resulting evidence. The state argued that the officers did not intercept a communication, but rather participated in one, but the court ruled that they did so “under false pretenses, posing as the owners of the respective phones in order to exploit the trust of the callers,” and that each officer was “not the party to whom the phones were registered . . . [and] was not the individual [the callers] expected to reach.” The court relied on Commonwealth v. Cruttenden, 976 A.2d 1176 (Pa. Super. 2009) (similar ruling where officer used arrestee’s cellular phone to text message with defendant, with arrestee’s consent), and distinguished Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001) (finding no interception where defendant communicated by computer with an officer posing as an underage girl, because the officer/girl was the intended recipient of the communication).
- Hawkins v. State, 704 S.E.2d 886 (Ga. Ct. App. 2010). A mother contacted the police and gave them her son’s cell phone, which she said contained many drug-related text messages. The defendant texted the phone asking about drugs, and an officer posed as the son and arranged a transaction. As a result, the defendant was arrested. She moved to suppress, arguing that the officer lacked the authority to use the son’s cell phone and that his conduct in doing so was “comparable to a wiretap interception.” Both the trial and the appellate court rejected this argument, the latter stating that it did not “warrant much discussion” because “[t]he officer was a party to the text message communications, notwithstanding that [the defendant] did not know his true identity at the time.” The court reasoned that the situation was “comparable to dialing a wrong number and speaking with someone that you believe is another.”
- State v. Carroll, 778 N.W.2d 1 (Wis. 2010). An officer saw the defendant speeding away from a residence that was under surveillance as part of an armed robbery investigation. The officer pursued the defendant, who abruptly stopped at a gas station. The officer approached him, and “ordered him to drop an unknown object that he held in his hand . . . upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of [the defendant] smoking what appeared to be a marijuana blunt . . . the officer kept the phone, scrolled through its image gallery, and saw other images depicting [the defendant] with illegal items; and . . . the officer answered an incoming call pretending to be [the defendant], and during that conversation, the caller ordered illegal drugs.” The officer then obtained a warrant to search the phone, which yielded additional evidence that the defendant subsequently moved to suppress. Inter alia, the court ruled that the officer properly answered the phone because he had probable cause to believe that the call would contain evidence of drug crimes and exigent circumstances required answering the call or allowing the evidence to dissipate. The court relied on United States v. De La Paz, 43 F.Supp.2d 370 (S.D.N.Y. 1999) (officer answered calls on drug arrestee’s cell phone; court ruled that this was a Fourth Amendment search but that it was justified by exigent circumstances and the impracticability of obtaining a warrant immediately after an arrest).
- United States v. Rodriguez-Lopez, 565 F.3d 312 (6th Cir. 2009). Officer answered drug arrestee’s phone several times, and each time, the caller was seeking drugs. The callers’ statements were not inadmissible hearsay, because the government did not seek to admit them for the truth of the matter asserted.
Search warrants distinguished. As the Lopez-Cruz court noted, whether officers may answer a phone while executing a search warrant is a different question, one that courts have often answered in the affirmative. See Wayne R. LaFave, Search and Seizure § 4.10(d) (stating that courts, “on a variety of rationales,” have allowed officers who are executing search warrants to answer the telephone while doing so).