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

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Agent Brenneman told Mr. Harrison they were there because, “our office received an anonymous phone call there were drugs and bombs at this apartment,” and he asked if Mr. Harrison “would mind if we look around the apartment.” Id. at 19. The government concedes the ATF had no reason to believe there were bombs in the apartment, but Agent Brenneman testified he had planned to say this to Mr. Harrison “in an effort to gain his consent to search.”

It is true that not all deception or trickery will render a search invalid. For example, “an undercover agent may gain entry to a person’s home by deception and purchase narcotics with no violation of the fourth amendment.” Pleasant v. Lovell, 876 F.2d 787, 802 (10th Cir. 1989) (citing Lewis v. United States, 385 U.S. 206, 210, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966)). But the government’s reliance on this line of cases is misplaced. In cases involving undercover police work, the defendant does not know he or she is permitting the government to enter the premises. Unlike the defendants in those cases, Mr. Harrison did not “unwisely repose[] trust in what later turn[ed] out to be a government agent,” Pleasant, 876 F.2d at 802. Instead, Mr. Harrison knew he was opening his home to law enforcement officials who have expertise in explosives. The question is whether the Agents’ deceptive tactics in these circumstances rendered his consent involuntary.

We should be especially cautious when this deception creates the impression that the defendant will be in physical danger if he or she refuses to consent to the search.

Where “the effect of the ruse is to convince the resident that he . . . has no choice but to invite the undercover officer in, the ruse may not pass constitutional muster”

In U.S. v. Harrison, 639 F.3d 1273, 1278–79 (10th Cir. 2011), the Tenth Circuit held that “when government agents seek an individual’s cooperation with a government investigation by misrepresenting the nature of that investigation, this deception is appropriately considered as part of the totality of circumstances in determining whether consent was gained by coercion or duress.”

Read full case here: U.S. v. Harrison, 639 F.3d 1273 (10th Cir. 2011), https://casetext.com/case/us-v-harrison-112/

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Officer Harold Cheirs and his partner, Officer Robinson, tried to serve an arrest warrant on Phyllis Brown at 3171 Hendricks Avenue in Memphis, Tennessee. When they got to Hendricks Avenue, they could not find a house with a 3171 address. They eventually found two houses on opposite sides of the street with a 3170 address, at which point, you might say, they were getting warmer. One of the houses presumably was mislabeled, and the officers had several options at their fingertips to figure out which house was 3171 Hendricks and which was not. They could have determined which side of the street contained odd-numbered addresses and served the warrant on the “3170” address on that side of the street. They could have checked city records or for that matter Google Maps to identify which house was the right one. Or they could have gone up to one of the houses and asked an occupant which house was 3171 Hendricks and which one was 3170 Hendricks.

The officers picked the last option—in part. Noticing that one of the two houses was occupied, they proceeded to that one. Now they were getting colder. Officer Cheirs knocked, a woman answered, and she promptly shut the door. While Officer Robinson went to the back of the house, Officer Cheirs knocked again. The occupant eventually opened the door, though not for seven or eight minutes. Instead of asking the woman what the address of the house was, whether Phyllis Brown lived there or whether this was the odd-numbered side of the street, Officer Cheirs represented to the woman that he had a warrant “for this address.” False. He had a warrant for 3171 Hendricks, and this was 3170 Hendricks.

Having no reason to know that this representation was false and opting not to insist on looking at the warrant, the woman let the officers into the house—the house of Phyllis Brown’s hapless neighbor, Steven Shaw. The officers performed a protective sweep of the house. Instead of finding Brown, they found a lot of cocaine. They arrested Shaw, and a grand jury charged him with a battery of drug-dealing and drug-possession offenses. The district court denied Shaw’s motion to suppress the drugs found at his house. He pled guilty to distributing cocaine, see21 U.S.C. § 841(a)(1), all the while reserving the right to appeal the suppression ruling. The district court sentenced him to 126 months in prison.

The Fourth Amendment prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. That means, among treatises full of other requirements, that officers must “take steps to reasonably ensure” they are not entering the wrong home when they execute an arrest warrant. El Bey v. Roop,530 F.3d 407, 416 (6th Cir.2008); see Steagald v. United States,451 U.S. 204, 216, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); Payton v. New York,445 U.S. 573, 603, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); United States v. Pruitt,458 F.3d 477, 480 (6th Cir.2006).

An officer may not falsely tell a homeowner that he has an arrest warrant for a house, then use that falsity as the basis for obtaining entry into the house.

The Supreme Court has said as much. Forty-five years ago, it faced this question: whether “a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant” when he does not? The answer was no. Bumper v. North Carolina, 391 U.S. 543, 546–51, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); see also United States v. Escobar, 389 F.3d 781, 786 (8th Cir.2004) (holding that officers may not obtain consent to search through a “false claim of legal authority”). The equivalent is true here.

Read full case here: United States v. Shaw, 707 F.3d 666 (6th Cir. 2013), https://casetext.com/case/united-states-v-shaw-18/

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Nora next contends that, even if the officers had probable cause to arrest him, they arrested him in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Court held in Payton that the Fourth Amendment forbids arresting a suspect inside his home unless the police first obtain an arrest warrant or an exception to the warrant requirement applies. Id. at 590, 100 S.Ct. 1371. That rule is designed to protect “the privacy and the sanctity of the home,” id. at 588, 100 S.Ct. 1371, and stems from “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.” Id. at 601, 100 S.Ct. 1371.

The government properly concedes that the police arrested Nora “inside” his home for purposes of the Payton rule. Although officers physically took Nora into custody outside his home in the front yard, they accomplished that feat only by surrounding his house and ordering him to come out at gunpoint. We’ve held that forcing a suspect to exit his home in those circumstances constitutes an in-home arrest under Payton. See, e.g., Fisher v. City of San Jose, 558 F.3d 1069, 1074–75 (9th Cir.2009) (en banc); United States v. Al–Azzawy, 784 F.2d 890, 893 (9th Cir.1985). Since the officers didn’t obtain an arrest warrant, Nora’s arrest violated the Fourth Amendment unless an exception to the warrant requirement applies.

…

Although Nora’s arrest was supported by probable cause, the manner in which officers made the arrest violated Payton. Evidence obtained as a result of Nora’s unlawful arrest must be suppressed, which renders the portions of the warrant authorizing a search for narcotics-related evidence and evidence of gang membership invalid. The remaining untainted evidence did not establish probable cause to search Nora’s home for the broad range of firearms described in the warrant. As a consequence, the entire warrant was invalid and all evidence seized pursuant to it must be suppressed. We reverse the district court’s order denying Nora’s suppression motion and remand for further proceedings.

Read the full case here: United States v. Nora, 765 F.3d 1049 (9th Cir. 2014), https://casetext.com/case/united-states-v-nora

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Robertson:

Robertson encounters a fundamental obstacle: standing. A defendant must show standing even if the government has not pressed the issue in the district court. United States v. Nadler,698 F.2d 995, 998 (9th Cir. 1983). Fourth Amendment rights are personal rights which may not be vicariously asserted. Rakas v. Illinois,439 U.S. 128, 133-34, 99 S.Ct. 421, 425-26, 58 L.Ed.2d 387 (1978). Even when officers make a blatantly pretextual arrest of one defendant that creates exigent circumstances justifying search of a second defendant’s house, the second defendant may not challenge the legality of the arrest. United States v. Chase,692 F.2d 69, 70 (9th Cir. 1982). Here it is undisputed that the arrest warrant named only Johnson. Had he survived, he could have raised a challenge to the delay in execution of the warrant. Standing in for the dead man, Robertson may not invoke any rights Johnson might have had.

Steeprow – Detention and Search:

Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed. See United States v. Patterson,648 F.2d 625, 632 (9th Cir. 1981) (citing United States v. Harrington,636 F.2d 1182, 1186 (9th Cir. 1981) (citations omitted)). We often confront the issue of when a legitimate ” Terry stop,” for which only reasonable suspicion of criminal activity is required, escalates into an arrest for which probable cause is required. The differing standards for each reflect the differing degrees of intrusion characteristic to each. A Terry stop involves no more than a brief stop, interrogation and, under the proper circumstances, a brief check for weapons. Beyond such a brief and narrowly circumscribed intrusion, an arrest occurs, for which probable cause is required. See Kraus v. City of Pierce,793 F.2d 1105, 1108-09 (9th Cir. 1986), cert. denied, ___ U.S. ___, 107 S.Ct. 1571, 94 L.Ed.2d 763 (1987). The ultimate question is whether, in view of all the circumstances, a reasonable person would believe himself to be under arrest. Id.

We conclude that the officers’ detention of Steeprow at gunpoint was an arrest which required probable cause. Steeprow was confronted by seven to ten police officers, one of whom aimed his gun at her nose, told her to freeze, and detained her for at least five and perhaps fifteen minutes. The restriction of her liberty of movement was complete upon this encirclement by officers who gave her orders at gunpoint.

We hold that probable cause for her arrest was absent. For all that was then known to the officers, Steeprow was an innocent visitor. Lacking from both the arrest warrant for Johnson and the search warrant for the premises was the slightest indication that Steeprow was involved in criminal activity. Her mere presence on the premises, without more, cannot support an arrest of her under these circumstances.

Search:

The warrant in this case authorized a search of

the premises known as 855 68th Street, Springfield Oregon and curtilage and appurtences [sic] and vehicles.

The government and the dissent would have us hold that the particularity requirement of the Fourth Amendment was satisfied either by the reference to “appurtences” or to “curtilage.” Steeprow contends that the warrant cannot be read to describe her backpack, and thus that the search of it was a warrantless search in violation of the Fourth Amendment. We reject the government’s and the dissent’s expansive reading of the warrant and agree with Steeprow. The search of Steeprow’s backpack was an unreasonable search which violated the Fourth Amendme

Read full case here: U.S. v. Robertson, 833 F.2d 777 (9th Cir. 1987), https://casetext.com/case/us-v-robertson-96

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The district court found inexplicable discrepancies between, on the one hand, the events as depicted in an audio recording and reports of agents nearly contemporaneous with the arrest and, on the other hand, later statements, reports and testimony of the agents. Accordingly, the district court discredited the later statements, reports and testimony, and confined its determination of probable cause to the sparse earlier evidence. The government does not challenge the adverse credibility finding on appeal, but contends that the remaining evidence was sufficient to establish probable cause.

As the district judge noted, the relevant inquiry is what the agents knew, collectively, at the time they arrested Collins. Facts uncovered after the arrest are irrelevant. See Allen v. City of Portland, 73 F.3d 232, 236 (9th Cir. 1996) (amended opinion) (stating that facts uncovered “as a result of a stop or arrest cannot be used to support probable cause unless they were known . . . at the moment the arrest was made.”). As the facts already recited indicate, the only thing the agents knew about Collins was that he had shown up (perhaps in the white Cadillac) in a public parking lot, had talked briefly to the driver of another car in that lot, and had gone into a fast-food restaurant and purchased a drink. It is true that the agents were expecting a person or persons to arrive in the lot who would be carrying stolen checks. At least one such person, Flores, did arrive and was carrying checks. Entirely missing, however, was any connection between Collins and Flores other than the fact that they appeared (from somewhere) in a public parking lot relatively contemporaneously. Equally missing is any connection between Collins and Pass.

These facts did not give rise to a fair probability that Collins was part of the conspiracy. The principal fact that tied Collins to this criminal activity was his “mere propinquity to others independently suspected of criminal activity,” which “does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) (holding that officers lacked probable cause to search the defendant solely because of his presence in a tavern in which the officers suspected the bartender dealt heroin). The facts showed only that Collins was close to the wrong people at the wrong time.

The connections ended there. Collins was not associating with a suspected conspirator.

The government challenges this conclusion, primarily relying on Maryland v. Pringle,540 U.S. 366, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). In Pringle, the Supreme Court held that officers had probable cause to arrest the defendant for possession of cocaine because officers found cocaine in the rear seat of a vehicle in which Pringle was the front-seat passenger, they found a large amount of cash in the glove box in front of Pringle, and the other two occupants denied ownership of the cocaine. Id. at 368, 372, 124 S.Ct. 795.

The intimate interior of a private vehicle is worlds apart from the public parking lot of a strip mall.

Unlike the interior of a private vehicle, the public parking lot setting does not support the inference that everyone in a segment of the parking lot probably knows each other ( and that they are participating in the others’ illegal activities).

Read full case here: U.S. v. Collins, 427 F.3d 688 (9th Cir. 2005), https://casetext.com/case/us-v-collins-99

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Warrantless searches by law enforcement officers “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States,389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Under the automobile exception to the Fourth Amendment’s warrant requirement, “[t]he police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.” California v. Acevedo,500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). An officer will have probable cause to search if “there is a fair probability that contraband or evidence of a crime will be found in a particular place, ‘based on the totality of circumstances.’ ” Dawson v. City of Seattle,435 F.3d 1054, 1062 (9th Cir.2006) (quoting Illinois v. Gates,462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

“One of the themes which runs through the decisions on the Fourth Amendment probable cause requirement is that when the ultimate probable cause determination is made, whether by a magistrate when a warrant is sought or upon a motion to suppress evidence obtained without a warrant, mere conclusions will not suffice.” 2 Wayne Lafave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(e), at 297 (4th ed. 2004). See, e.g., Gates,462 U.S. at 239, 103 S.Ct. 2317 (noting that “wholly conclusory” statements of officers are insufficient to establish probable cause); United States v. Ventresca,380 U.S. 102, 108–09, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (noting that “purely conclusory” statements of officers, without detailing any of the underlying circumstances, will be insufficient to establish probable cause); Nathanson v. United States,290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933) (noting that an officer’s “mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances” is insufficient to establish probable cause).

United States v. Cervantes, 703 F.3d 1135, 1139 (9th Cir. 2012)

Read full case here: United States v. Cervantes, 703 F.3d 1135, 1137 (9th Cir. 2012), https://casetext.com/case/united-states-v-cervantes-7

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The Supreme Court has held that police need no warrant to arrest a felony suspect on probable cause in a public place; United States v. Watson, 1976, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598; United States v. Santana, 1976, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300.

In Coolidge the Court stated in dicta that “the notion that the warrantless entry of a man’s house in order to arrest him on probable cause is per se legitimate is in fundamental conflict with the basic principle of Fourth Amendment law that searches and seizures inside a man’s house without warrant are per se unreasonable in the absence of some one of a number of well defined ‘exigent circumstances.'” 403 U.S. 477-78, 91 S.Ct. 2044.

Pitt said, “Every man’s house [is] his castle.” id., fn. 7. United States v. Prescott, 581 F.2d 1343, 1349 (9th Cir. 1978)

We join the District of Columbia Circuit, Dorman v. United States, 1970, 140 U.S.App.D.C. 313, 435 F.2d 385 ( in banc), and the Second Circuit, United States v. Reed,572 F.2d 412, 1978, and hold that, absent exigent circumstances, police who have probable cause to arrest a felony suspect must obtain a warrant before entering a dwelling to carry out the arrest.

REFUSAL OF ADMISSION

“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search.” Bumper v. North Carolina, 1968, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797. When, on the other hand, the officer demands entry but presents no warrant, there is a presumption that the officer has no right to enter, because it is only in certain carefully defined circumstances that lack of a warrant is excused. Camara v. Municipal Court, 1967, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 18 L.Ed.2d 930. An occupant can act on that presumption and refuse admission. He need not try to ascertain whether, in a particular case, the absence of a warrant is excused. He is not required to surrender his Fourth Amendment protection on the say so of the officer. The Amendment gives him a constitutional right to refuse to consent to entry and search. His asserting it cannot be a crime, Camara, supra,387 U.S. at 532-33, 87 S.Ct. 1727. Nor can it be evidence of a crime. District of Columbia v. Little, 1950, 339 U.S. 1, 7, 70 S.Ct. 468, 471, 94 L.Ed. 599

Read the full case here: United States v. Prescott, 581 F.2d 1343 (9th Cir. 1978), https://casetext.com/case/united-states-v-prescott-5

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This appeal stemmed from two individuals’ cross-country car trip. Inside the car were secret compartments containing bundles of methamphetamine. But to the casual observer, the car looked like any other car.

The driver apparently knew about the secret compartments of methamphetamine, but did the passenger? It’s possible, but there was no evidence that

• the driver had told the passenger about the methamphetamine or
• the passenger had detected the secret compartments.

Without such evidence, could a reasonable jury find the passenger guilty of crimes that required her knowledge of the drugs? We answer no.

Ms. Garcia-Rodriguez rode across the country in a car containing roughly 29 pounds of methamphetamine. “But mere presence, as a passenger, in a car found to be carrying drugs is insufficient to implicate the passenger in the conspiracy.” United States v. Jones, 44 F.3d 860, 865 (10th Cir. 1995). The issue here is whether any other proof existed on Ms. Garcia-Rodriguez’s knowledge of the methamphetamine.

Read full case at United States v. Rodriguez, No. 22-6194, 6 (10th Cir. Feb. 21, 2024), https://casetext.com/case/united-states-v-rodriguez-3183

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The Supreme Court itself has recognized that distinguishing a Terry investigative stop from a de facto arrest “may in some instances create difficult line-drawing problems.” United States v. Sharpe,470 U.S. 675, 685, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985). As noted by the Court in the seminal case of Terry v. Ohio,392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968), each case must be decided on its own facts. “Whether an arrest has occurred depends on all the surrounding circumstances, including the extent to which liberty of movement is curtailed and the type of force or authority employed.” United States v. Robertson,833 F.2d 777, 780 (9th Cir. 1987). In reviewing the facts and circumstances of each case, we must be mindful of the narrow scope of the Terry exception — an exception based on a brief, street encounter between police and a suspect. To do otherwise would be to risk allowing the “`exception’ . . . to swallow the general rule that Fourth Amendment seizures are `reasonable’ only if based on probable cause.” Dunaway v. New York,442 U.S. 200, 213, 99 S.Ct. 2248, 2257, 60 L.Ed.2d 824 (1979); see Florida v. Royer,460 U.S. 491, 510, 103 S.Ct. 1319, 1331, 75 L.Ed.2d 229 (1983) (plurality opinion) (Brennan, J., concurring).

Although the movement of Ricardo to the patrol car is a significant factor in our analysis, we reiterate that each case is decided under the totality of the particular circumstances. For example, in conjunction with the place of detention, in Baron we considered the disparity in power stemming from the fact that Baron was a female detained by three male officers. Baron,860 F.2d at 916. Here, we take into account that a juvenile was confronted by several officers. To a limited extent, we also consider Officer Bork’s threat of arrest for providing false information as adding to the coercive atmosphere of the detention. Thus, all the circumstances, including the facts that the suspect was sixteen, taken by the arm, told not to run, and placed in the back of the police car, indicate a degree of coercion unacceptable as part of a Terry stop, and unsupportable on anything less than probable cause. We therefore hold that the officers effectively arrested Ricardo when they detained him in the patrol car for questioning.

Having determined that Ricardo was in fact under arrest during the field questioning by Officers Bork and Emery, we next briefly address the question of probable cause. Our review is de novo. United States v. Delgadillo-Velasquez,856 F.2d 1292, 1295 (9th Cir. 1988). The officers had probable cause to arrest Ricardo if, at the time of the arrest, they had knowledge and reasonably trustworthy information of facts and circumstances sufficient to lead a prudent person to believe that Ricardo had committed or was committing a crime. Holtzman,871 F.2d at 1503.

As the government apparently concedes, probable cause to arrest Ricardo did not exist prior to Ricardo’s initial admission to Agent Emery that Ricardo was the one who fled from the van. At the time of Ricardo’s arrest, the only knowledge possessed by the officers was that a “young, thin man, not too tall” had run from a van containing marijuana, and that a truck driver had picked up a “young, Mexican male” approximately one-half mile from where the van had been stopped, and had given him a ride to a pay phone in Nicksville. In a location only thirty miles north of the Mexican border, it can hardly be said that the presence of a young, Mexican male is highly unusual. Furthermore, although Officer Bork found Ricardo “crouching” behind a tree, Ricardo made no attempt to flee when approached by the officer. In sum, while there may have been reasonable suspicion to justify a Terry stop, there was insufficient information to lead a reasonable person to believe that Ricardo had committed a criminal offense. Ricardo’s arrest was, thus, illegal.

Full case: U.S. v. Ricardo D, 912 F.2d 337 (9th Cir. 1990), https://casetext.com/case/us-v-ricardo-d

Anton Vialtsin, Esq.
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Based in San Diego, CA
Licensed: California, Nevada, and Federal Courts

The San Diego-based business litigation and criminal defense attorneys at LAWSTACHE™ LAW FIRM are experienced and dedicated professionals singularly focused on one goal: achieving the best results for our clients. Through our hard work and expertise, we guarantee all of our clients that we will diligently protect their rights and zealously pursue justice. Our clients deserve nothing less!