Can Officers Still Secretly Record a Controlled Buy After United States v. Jones?

by | December 14, 2023

United States v. Esqueda, 2023 WL 8590071 (9th Cir. 2023)

Undercover agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), along with a confidential informant, bought guns and methamphetamine in a motel room from Daniel Alvarado, one of Christopher Esqueda’s associates. In the following days, agents set up additional controlled buys of guns and methamphetamine from Alvarado. On one occasion, Alvarado directed the undercover agents to meet at a different room in the same motel. Esqueda, previously unknown to the agents, was there when they showed up.

Alvarado handed the agents some methamphetamine. The agents asked Alvarado about a “Derringer” firearm he had mentioned; Alvarado directed Esqueda to retrieve it. Esqueda produced a .22 caliber revolver from his person, handed it to an undercover agent and told him the firearm was loaded. The agent gave Alvarado $400 for the gun. Unbeknownst to Alvarado and Esqueda, the agents were wearing concealed audio and video recording devices.

Esqueda was indicted for possession of a firearm by a convicted felon. Esqueda asked the trial judge to suppress the video recording of the gun and drug sale. Although Alvarado invited the agents into the motel room, Esqueda claimed the nonconsensual, secret recording of the inside of his living space exceeded the scope of the license Esqueda had provided when he consented to the agents’ entry. Esqueda relied on the Supreme Court’s property-based, trespassory test articulated in United States v. Jones (565 U.S. 400 (2012)).

In United States v. Jones, the Supreme Court held that attaching a GPS tracking device to Jones’ vehicle and monitoring the vehicle’s movements over a 28-day period constituted a search. Nonetheless, the Court was divided in its reasoning. Justice Scalia’s majority opinion cited a long line of property rights precedent dating back to 1886. The majority held that a search occurred because agents “physically occupied private property for the purpose of obtaining information,” essentially trespassing on property rights. In Florida v. Jardines (569 U.S. 1 (2013)), the Court held the detector dog sniff of a residential front door was an “unlicensed physical intrusion,” and therefore constituted a search requiring a warrant. The Jones and Jardines opinions gave new vitality to the Court’s former trespass theory of Fourth Amendment rights.

The Esqueda decision is an important and clear statement that surreptitious recording of a controlled buy by a lawfully present undercover agent remains a legitimate investigative tool.

The trial court denied Esqueda’s suppression motion. Esqueda appealed.

For many years, the government could intercept and monitor electronic communications without a warrant or other legal process. In 1928, the Supreme Court held that wiretapping should be viewed under trespass laws. But, if the interception could be accomplished without trespassing, then no legal violation occurred (Olmstead v. United States, 277 U.S. 438 (1928)). It wasn’t until 1967 that the Supreme Court recognized a legitimate expectation of privacy in electronic communications, without regard to whether a trespass occurred (Katz v. United States, 389 U.S. 347 (1967)). The Court noted the Fourth Amendment protects “people, not places.”

Esqueda essentially asked the appellate court to return to the pre-Katz analysis of whether the agents violated his privacy rights by bringing concealed recording devices into his motel room “home.” The appellate court rejected his argument: “Supreme Court precedent dictates that an undercover officer who physically enters a premises with express consent and secretly records only what he can see and hear by virtue of his consented entry does not trespass, physically intrude, or otherwise engage in a search violative of the Fourth Amendment…We do not read the Supreme Court’s decisions in Jardines and Jones as disturbing that well-settled principle.”

Fourth Amendment challenges will continue to argue for broader application of the traditional trespass analysis of a Fourth Amendment intrusion. The Esqueda decision is an important and clear statement that surreptitious recording by a lawfully present undercover agent (or confidential informant) remains a legitimate investigative tool.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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