Even if you give an officer consent to search your cell phone, the officer doesn't have the right to answer your calls and pretend to be you, the 9th U.S. Circuit Court of Appeals found.

 

Andres Lopez-Cruz, the defendant, was stopped by a U.S. Border Patrol agent near the San Diego County-Mexico border, the SFGate reports. He told them that the two cell phones in his vehicle’s center console belonged to friends, but agreed to an agent’s request to search the phones.

 

A phone rang, and the agent answered it. He did not seek Lopez’s permission, and initiated a conversation with the caller, according to the opinion.

 

"How many did you pick up," the caller asked.

 

"None," the agent answered.

 

A second call came in minutes later.

 

"How did it go?"

 

"I didn’t pick up anybody," the agent replied in Spanish. "There was too many Border Patrol in the area."

 

The caller gave directions to a home. The officer arrested Lopez, drove to the home, and picked up two men who admitted they were undocumented. Lopez is charged with conspiracy to pick up undocumented immigrants.

 

The Sept. 12 opinion (PDF), written by Judge Stephen Reinhardt, upholds a district court opinion suppressing the evidence.

 

"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 opinion states.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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