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Name: United States v. Lopez
Case #: 11-50551
Court: US Court of Appeals
District 9 Cir
Opinion Date: 09/12/2013
Summary

A person who consents to a police search of his phone does not thereby also consent to the police answering incoming calls and impersonating him during a conversation regarding criminal activity. Border patrol agent Soto and his partner were patrolling a highway near the Mexican border which was known for alien smuggling. Based on Lopez’s driving, Soto took notice of him. When Lopez pulled to the side of the road, Soto stopped behind him. Soto asked Lopez some questions about where he was going. Noticing several cell phones in Lopez’s car, Soto asked to search them and Lopez consented. On two occasions during the search, one of the phones rang and Soto answered it, impersonating Lopez. The information obtained resulted in Lopez’s prosecution under federal law for alien smuggling. Lopez appealed the denial of his motion to suppress evidence. Held: Reversed. Preliminarily, the court rejected the government’s assertion Lopez lacked standing to raise the motion because he denied the phones were his. The phones were in his possession and being used by him. He responded to the officer’s question by denying the phones were his but did not further attempt to disassociate himself from the phones. As to the scope of the consent given to search, the question is what the typical person would have understood by the exchange between the suspect and the officer – in other words, a search pursuant to consent is limited by the extent of the consent given. A person who consents to the search of his phone does not thereby also consent to the government answering incoming calls, impersonating him and carrying on conversations in his name. Rather, specific consent to answer is required.