Police took the man’s phone and ANSWERED an incoming call IMPERSONATING the person being arrested.

When Andres Lopez–Cruz (“Lopez”) gave a border patrol agent permission to “look in” or “search” the two cell phones he had with him, the agent did not ask him whether he would also consent to the agent’s answering any incoming calls. Nonetheless, when one of the phones rang while the agent was conducting his search, he answered it, passing himself off as Lopez. By answering the call, the agent obtained information leading to Lopez’s arrest and felony charges of conspiracy to transport illegal aliens under 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(I). Lopez moved to suppress the evidence obtained from the phone calls. The district court granted the motion to suppress and denied the government’s motion for reconsideration. The government appeals.

The scope of consent is determined by asking “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Florida v. Jimeno,500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). The test is an objective one. The district court explained that a reasonable person would not “believe that a consent to look at or search a cell phone would include consent to answer incoming calls.” It held that Lopez’s “consent in this case was limited to an examination of the phone itself and that further legal justification was required before the agents answered it.”

Here, the agent’s answering of the phone exceeded the scope of the consent that he obtained and, thus, violated Lopez’s Fourth Amendment right. As a general matter, consent to search a cell phone is insufficient to allow an agent to answer that phone; rather, specific consent to answer is necessary.

Read the full case here: United States v. Lopez-Cruz, 730 F.3d 803 (9th Cir. 2013), https://casetext.com/case/united-states-v-lopez-cruz-2