USA v. Miguel Escamilla, Jr.

Filing

PUBLISHED OPINION FILED. [16-40333 Affirmed] Judge: ECP, Judge: SAH, Judge: GJC. Mandate pull date is 04/19/2017 for Appellant Miguel Angel Escamilla Jr. [16-40333]

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40333

United States Court of Appeals
Fifth Circuit

FILED
March 29, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
MIGUEL ANGEL ESCAMILLA, JR.,
Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
Miguel Escamilla appeals his convictions for conspiring to possess and
possessing with the intent to distribute marijuana and heroin. Pressing five
issues, Escamilla argues that the district court erroneously failed to suppress
incriminating evidence that government agents obtained from an allegedly
unconstitutional stop and ultimate arrest. We hold that much of the agents’
conduct was reasonable and therefore constitutional. We also hold, however,
that the district court erred by admitting evidence obtained from an
unconstitutional, post-arrest search of a cell phone in Escamilla’s possession.
We nonetheless affirm the judgment of the district court because the error was
harmless.

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I
On December 4, 2014, Border Patrol agents Julio Garcia and David
Freed patrolled the privately owned OKM Ranch—approximately thirty miles
from the Mexican border—in Laredo, Texas.

According to the agents,

smugglers “common[ly]” cut through the ranch to avoid two Border Patrol
checkpoints at either end of the property. The “legitimate traffic” through the
ranch is primarily oil industry workers.
Around 6:30 a.m., the agents, driving southbound through the ranch,
saw two similar white trucks driving in the opposite direction. The first truck,
a Ford F-250, and the second truck, a Ford F-150, appeared to travel together
or “in tandem.” A few minutes later, Border Patrol’s “drawbridge activation,”
a camera-like sensor designed to detect illegal entry into the ranch, alerted all
nearby agents that a vehicle had entered the ranch “at an undisclosed location
. . . where [a vehicle] should not be.” Realizing that the trucks they passed
resembled the vehicle in the alert, the agents turned around to investigate
further.
Upon encountering the trucks again, the agents noticed that they were
still traveling in tandem. The agents recognized this manner of driving as
common among smugglers: one vehicle is the “load vehicle” carrying
contraband, while the other is “a scout or disturbance” vehicle. The trucks
were also still traveling north, heading to exit the ranch and circumvent Border
Patrol’s checkpoints. But at 6:30 in the morning, oilfield workers are usually
entering—not leaving—the ranch for work.
The agents focused on the F-150, noticing that it did not bear the
customary markings of any oil company, such as a fleet number or work badge
displayed from the rear view mirror. Rather, there was a personal decal on its
back window—unusual for a company truck. The F-150 also had temporary
“paper tags,” which are uncommon among legitimate oilfield traffic, but
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common among smugglers. As the agents followed the F-150, they checked its
registration, which revealed a woman’s residential address. In the agents’
experience, company vehicles are typically registered to a business. Agent
Garcia and Agent Freed thought that the F-150 was likely a “clone”—an
everyday vehicle intended to resemble a legitimate oilfield truck, but carrying
undocumented immigrants or drugs from the border.
When the agents activated their lights to stop the F-150, the F-250 sped
away, leading them to believe it was the “load vehicle” carrying contraband.
Agent Freed “called in” the F-250, asking other nearby agents to track it down.
Upon stopping the F-150, the agents noticed that its exterior was
unusually clean, unlike typical oilfield trucks. As Agent Garcia approached
the F-150, he saw that it had no tools or other objects that work trucks usually
carry. The truck’s fuel cell also looked out of place and lacked a fuel pump,
rendering it inoperable. When Agent Garcia asked the driver—Escamilla—
what he was doing on the ranch, he seemed “nervous” and “couldn’t give . . . a
definitive answer.” Escamilla said he worked for “Valdez” but did not explain
what type of work he did, and Agent Garcia did not recognize the name. Agent
Freed then checked Escamilla’s license and discovered “a narcotics case” on his
record.
As Agent Garcia continued talking to Escamilla, he noticed the interior
of the F-150 was also unusually clean.

Agent Garcia also noticed that

Escamilla wore a shirt that looked similar to a work uniform but lacked
company logos or decals. Escamilla then agreed to let Agent Garcia and Agent
Freed search the F-150. 1 During the search, Agent Garcia opened the out-ofplace fuel cell to find that it was empty and appeared modified or “hollowed
out.” The agents knew that smugglers often carry drugs in hollowed-out fuel

1

Escamilla does not challenge the agents’ search of the F-150.

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cells. The agents also saw “fake shirts” and “brand new [generic] vests,” which
they thought oilfield workers would not usually bring to work. These items
corroborated their suspicion that the F-150 was a “clone.”
After searching the truck, Agent Garcia asked to search Escamilla’s
phone. Specifically, he asked, “do you mind if I look through your phone?[,]”
and Escamilla silently handed it over. The phone was a simple flip phone—a
“burner” in Agent Garcia’s opinion—containing only three numbers, two of
which were saved under a single letter, rather than a proper name. After
searching the phone, Agent Garcia handed it back to Escamilla because, in
Agent Garcia’s words, he was “done with it.”
About ten minutes after stopping Escamilla, Agent Garcia asked if he
would allow a Border Patrol dog to sniff his vehicle. 2

When Escamilla

consented, Agent Garcia told him to drive approximately two minutes to the
ranch’s “main gate,” where they waited another ten minutes for the dog to
arrive. When the dog sniffed the F-150, its handler reported that the dog
“alert[ed], but nothing solid.” In Agent Garcia’s view, this meant “something
may have been in [the truck] at some point in time previously [or] recently.”
At this point, Agent Garcia called his superior to report Escamilla’s
behavior.

As they spoke, Agent Garcia and Agent Freed simultaneously

overheard radio traffic about the F-250. Border Patrol agent Brian Jennings
had followed the F-250 out of the OKM Ranch. The F-250 tried to speed away,
“ramming [the] gate” at a nearby ranch and “taking out a couple [of] deer-proof
fences” before crashing. By the time Agent Jennings reached the wreck, the
driver had fled, leaving marijuana and black tar heroin behind. When Agent
Jennings reported the drug seizure over his radio—about twenty-four minutes
after Escamilla’s initial stop—Agent Garcia and Agent Freed arrested

2

Escamilla does not challenge the voluntariness of his consent to the dog sniff.

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Escamilla based on his connection to the F-250.
The agents drove Escamilla to a nearby Border Patrol station where they
met DEA Agent Jason Antonelli.

There, agents took “all of [Escamilla’s]

personal property . . . from him” and “turned [it] over to the DEA.” According
to Agent Antonelli, Agent Garcia and Agent Freed told him that Escamilla had
“verbal[ly] consent[ed]” to a search of his phone. The Border Patrol agents also
gave Agent Antonelli a second phone, broken in half but otherwise identical to
the one taken from Escamilla, that Agent Brian Jennings recovered from the
wrecked F-250. Agent Antonelli looked through both phones to find their
contact numbers.
Agent Antonelli then told Escamilla that he was going to jail and asked
him to claim his property from the items Border Patrol agents had taken from
him. Escamilla claimed his driver’s license, “various bead necklaces,” and
some change. He did not claim the phone that the Border Patrol agents
searched at the OKM Ranch and took from him at the station. When Agent
Antonelli’s partner asked about it, Escamilla said the phone wasn’t his, but
that he had used it to call his girlfriend.
The next day, December 5, Agent Antonelli used the contact numbers he
discovered from both phones to subpoena their accompanying records from
AT&T. AT&T’s records revealed that whoever used the two phones called each
other 196 times between November 20 and December 4, the day of Escamilla’s
arrest. The phones texted 29 times during the same period. On December 2,
the phone recovered from Escamilla texted a third number to the broken phone
from the F-250, and the user of the broken phone called that number on
December 4, forming “a triangle connection” among the three devices.
On December 9, Agent Antonelli used a forensic examination program
called “Cellebrite” to download any contacts, pictures, or videos from both
phones. The Cellebrite program also confirmed the phones’ contact numbers,
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which Agent Antonelli learned from his manual search of the phones five days
earlier. For the manual search on December 5 and the Cellebrite search on
December 9, Agent Antonelli relied on Escamilla’s consent given during the
Border Patrol agents’ stop on December 4.

He never requested a search

warrant.
In his resulting prosecution for drug possession and conspiracy,
Escamilla moved to suppress the phone that agents recovered from him, its
contact number, evidence of calls or texts, and any other “digital data” stored
on the phone.

After a two-day suppression hearing, the district court

determined that the Border Patrol agents lawfully stopped Escamilla. The
district court also held that, during the stop, Escamilla voluntarily consented
to a search of the phone in his possession, which encompassed Agent
Antonelli’s manual search at the station, and that Escamilla had abandoned
any expectation of privacy in the phone when he disclaimed ownership of it,
which justified Agent Antonelli’s Cellebrite search. A jury found Escamilla
guilty on all counts. After sentencing and entry of final judgment, Escamilla
timely appealed, arguing that the district court erred by denying his motion to
suppress.
II
When a defendant challenges the district court’s denial of a motion to
suppress, we review the district court’s findings of fact for clear error and its
conclusions about the constitutionality of law enforcement conduct de novo.
United States v. Danhach, 815 F.3d 228, 232-33 (5th Cir. 2016). We view the
evidence in the light most favorable to the prevailing party—here, the
Government—and we may affirm the district court’s ruling for any reason
supported by the record. Id. at 233. If we find constitutional error, however,
we must reverse the judgment of the district court unless the error is
“harmless.” Fed R. Crim. P. 52(a); United States v. Wright, 777 F.3d 769, 777
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(5th Cir. 2015). Our harmlessness inquiry requires the Government to prove
“beyond a reasonable doubt that the error complained of did not contribute to
the verdict.” United States v. Zavala, 541 F.3d 562, 581 (5th Cir. 2008).
III
Escamilla argues five issues on appeal: first, that the Border Patrol
agents’ initial stop was unjustified; second, that, even if justified, the stop was
unreasonably prolonged; third, that he did not voluntarily consent to Agent
Garcia’s search of the phone in his possession during the stop; fourth, that
Agent Antonelli’s post-arrest searches of the phone were unconstitutional; and
fifth, that the evidence obtained from all of this unconstitutional conduct was
introduced at trial and contributed to the jury’s guilty verdict.
A
The Fourth Amendment’s prohibition on unreasonable searches and
seizures applies to stopping a vehicle and detaining its occupants. Delaware
v. Prouse, 440 U.S. 648, 653 (1979). A vehicle stop complies with the Fourth
Amendment if it is justified at inception and law enforcement officers’ conduct
during the stop is reasonably related in scope and duration to the
circumstances justifying the detention. United States v. Brigham, 382 F.3d
500, 506 (5th Cir. 2004) (en banc) (citing Terry v. Ohio, 392 U.S. 1, 19-20
(1968)). Escamilla argues that the Border Patrol agents had no reason to stop
the F-150 as he drove through the OKM ranch. 3
To justify a vehicle stop, officers must have a “reasonable suspicion”—
that is, “specific and articulable facts . . . taken together with rational
inferences from those facts”—that “criminal activity [is] afoot.” Terry, 392 U.S.
at 21, 30. In considering whether officers reasonably suspect someone of

Although Escamilla does not own the F-150, the Government does not dispute
Escamilla’s standing to challenge the stop.
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criminal activity, we defer to their law enforcement experience, recognizing
that trained officers may draw inferences from certain facts “that might well
elude an untrained person.” United States v. Cortez, 449 U.S. 411, 418 (1981);
accord United States v. Sanchez-Pena, 336 F.3d 431, 437 (5th Cir. 2003).
When roving Border Patrol agents stop a vehicle in a “border area,”
rather than at an official checkpoint, we consider whether several factors
(known as the Brignoni-Ponce factors) contribute to the agents’ reasonable
suspicion: (1) the area’s proximity to the border; (2) the area’s characteristics;
(3) the usual traffic patterns on the road; (4) the agents’ previous experience
with criminal activity; (5) information about recent illegal trafficking in the
area; (6) the appearance of the vehicle; (7) the driver’s behavior; and (8) the
passengers’ number, appearance, and behavior. United States v. Garza, 727
F.3d 436, 440 (5th Cir. 2013) (citing United States v. Brignoni-Ponce, 422 U.S.
873, 884-85 (1975)).

Because reasonable suspicion is a totality-of-the-

circumstances analysis, we consider these factors collectively, not in isolation.
Id.
Here, all of the factors weigh in favor of the Government. The OKM
Ranch is only thirty miles from the Texas-Mexico border, “where many
smuggling trips originate.” United States v. Ramirez, 839 F.3d 437, 440 n.2
(5th Cir. 2016). The ranch is also a “common corridor[]” for smugglers because
it circumvents two Border Patrol checkpoints, and “[i]t is well established that
a road’s reputation as a smuggling route adds to the reasonableness of the
agents’ suspicion.” United States v. Zapata-Ibarra, 212 F.3d 877, 881 (5th Cir.
2000) (citation omitted). Relying on their years of Border Patrol experience,
Agent Garcia and Agent Freed noticed several suspicious facts about the F-150
Escamilla was driving. To start, they were “propelled into action by sensors
designed to avoid routine ranch traffic” and discovered “an unfamiliar and
atypical-looking oil field vehicle.” United States v. Inocencio, 40 F.3d 716, 723
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(5th Cir. 1994). “Legitimate” ranch traffic usually arrives early in the morning,
but at 6:30 a.m., the F-150 appeared to be leaving. See United States v.
Nichols, 142 F.3d 857, 866 (5th Cir. 1998) (relying on testimony that defendant
“was on the road . . . earlier than utility vehicles normally appeared in that
area”). The truck also lacked the usual markings of an oil company vehicle,
was registered to a residence rather than a business, and had temporary
“paper tags,” which smugglers often use. See United States v. Villalobos, 161
F.3d 285, 289 (5th Cir. 1998) (highlighting a vehicle’s use of temporary tags).
Escamilla was also driving “in tandem”—a manner of travel common among
smugglers—with the F-250 in front of him for several minutes. 4 Id. at 290
(noting that this “lead car-load car arrangement . . . . may raise an agent’s
suspicions”). Accordingly, the district court did not err in concluding that the
agents reasonably suspected Escamilla of criminal activity and therefore
lawfully stopped his vehicle.
B
Escamilla also contends that the agents unreasonably prolonged the stop
by engaging in conduct not reasonably related to their initial suspicion. An
officer’s conduct is reasonably related to the justification for the stop when the
officer “diligently pursue[s] a means of investigation that is likely to confirm
or dispel [the officer’s] suspicions quickly.” United States v. Pack, 612 F.3d
341, 361 (5th Cir. 2010) (citing United States v. Sharpe, 470 U.S. 675, 686

Relying on United States v. Robert L., 874 F.2d 701 (9th Cir. 1989), Escamilla argues
that there is insufficient evidence of the F-150 and F-250 traveling “in tandem” because the
Border Patrol agents “did not observe [them] travel over very much distance before stopping
the F-150.” The district court did not explicitly find that Escamilla and the F-250 were
driving in tandem, noting only that the “two vehicles were travelling north in close proximity
to each other.” Viewing the evidence in a light most favorable to the Government, however,
supports finding that the trucks were traveling in tandem. The agents first saw the trucks
traveling together as the agents drove past them on the main road. After the drawbridge
activation alert “a couple [of] minutes” later, agents turned around to follow the trucks (which
likely also took a few minutes) and found them still traveling together.
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(1985)). Officers unreasonably—hence, unconstitutionally—prolong a stop if
they detain a person “beyond the time needed to investigate the circumstances
that caused the stop.” Id. at 350.
Escamilla argues only that the agents should have let him leave as soon
as the Border Patrol dog found “nothing solid.” It’s true that when the dog
sniffed the F-150, the handler reported that the dog, which reacted only to
contraband, “alert[ed], but nothing solid.”

Agent Garcia testified that he

thought the dog had alerted to residual odors—that “something may have been
in [the F-150] at some point in time previously [or] recently” or that at “some
other time there may or may not have been something that came in contact
with that vehicle that would cause a K-9 to alert.” Ignoring Agent’s Garcia’s
testimony, Escamilla contends that the dog sniff unequivocally “dispelled
suspicion” that he had drugs in the F-150.
After stopping Escamilla, the Border Patrol agents continued to amass
suspicion that he was involved in smuggling. 5 Although the Border Patrol
For example, when the agents stopped Escamilla, the F-250 immediately sped away,
leading the agents “to believe that it could have been either loaded with narcotics or
[undocumented immigrants.]” Cf. Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (holding that
unprovoked flight in an area of heavy drug trafficking justified officers’ reasonable suspicion).
The F-150 Escamilla drove was unusually clean, unlike typical oil company trucks. See
Nichols, 142 F.3d at 866 (noting that a car’s “uncharacteristic[] clean[liness]” contributed to
reasonable suspicion). It also lacked tools or other common cargo. See id. at 863 (noting that
agents stopped a truck after noticing that it “carried no tools or pipe racks typical of oil field
trucks”). The fuel cell in the bed of the F-150 also looked out of place and was unusable, and
smugglers often fill modified or “fake” fuel cells with drugs. See United States v. Estrada,
459 F.3d 627, 632 (5th Cir. 2006) (highlighting an officer’s observation that the defendant’s
fuel tank looked “out of the ordinary” as if it “had been tampered with”). Escamilla, who had
“a narcotics case” on his record, seemed nervous when he told the agents he worked for
“Valdez,” but could not elaborate, and the agents did not recognize the name. See Pack, 612
F.3d at 355 (noting “nervousness” and “inconsistent stories” can contribute to reasonable
suspicion); United States v. Gonzalez, 328 F.3d 755, 758 (5th Cir. 2003) (noting that a prior
arrest for drug trafficking contributed to reasonable suspicion). And Escamilla’s “work”
clothes, both on his person and in his vehicle, did not bear any company logos and were
unusually clean, like his truck. See Inocencio, 40 F.3d at 720 (“[A]lthough [the defendant]
appeared to be dressed as a workman, his clothing appeared too clean to have been working
in the field.”).
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dog’s sniff did not indisputably confirm the agents’ suspicion by revealing
hidden contraband, neither did the sniff dispel suspicion, contrary to
Escamilla’s suggestion. Cf. Pack, 612 F.3d at 357 (“[P]olice do not have to
observe the equivalent of direct evidence of a particular specific crime . . . to
detain a lawfully stopped individual to investigate where there is reasonable
suspicion of criminal activity . . . .”). The dog “alert[ed]” in a way that led the
agents to believe the F-150 had recently carried or been near contraband—a
fact consistent with their suspicion that it served as a “scout” or “disturbance”
vehicle for another car, which still constitutes criminal activity. Cf. Florida v.
Harris, 133 S. Ct. 1050, 1056 n.2 (2013) (“A detection dog recognizes an odor,
not a drug, and should alert whenever the scent is present, even if the
substance is gone . . . .”). Further, the overall stop—justified by suspicion of
smuggling, rather than a mere traffic violation—lasted no more than twentyfour minutes. Consequently, any delay between the agents’ completing the dog
sniff and arresting Escamilla after Border Patrol Agent Jennings found drugs
in the F-250 was reasonable. See Pack, 612 F.3d at 361-62 (holding that a
thirty-five-minute stop was constitutionally reasonable).
C
Escamilla next argues that he did not voluntarily consent to Agent
Garcia’s request to search the cell phone he had with him during the Border
Patrol agents’ investigatory stop. To determine whether a person’s consent is
voluntary, we consider six factors: (1) the voluntariness of the suspect’s
custodial status; (2) the presence of coercive police procedures; (3) the nature
and extent of the suspect’s cooperation; (4) the suspect’s awareness of his right
to refuse consent; (5) the suspect’s education and intelligence; and (6) the
suspect’s belief that no incriminating evidence will be found. United States v.
Macias, 658 F.3d 509, 523 (5th Cir. 2011).
The district court weighed each factor and concluded that under the
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totality of the circumstances Escamilla’s consent was voluntary.

Relying

primarily on out-of-circuit precedent, Escamilla argues that the district court
incorrectly weighed factors two, three, and six in favor of the Government. He
emphasizes that the circumstances were coercive because he was “alone and
detained by two armed U.S. Border Patrol agents . . . on a secluded road while
it was still dark” and unaware of his Miranda rights. 6 Escamilla also contends
that he was essentially uncooperative because he did not “admit[] his
involvement in criminal activity before consenting” or “assist agents in their
search.” In addition, he argues that the district court erroneously inferred that
he did not believe police would find incriminating evidence on his phone even
though the limited number of contacts with “obscure designations” would
surely rouse Agent Garcia’s suspicion.
Viewing the evidence collectively and in a light most favorable to the
Government, the district court’s findings of fact are not clearly erroneous, and
its conclusion that Escamilla voluntarily consented is sound. As Escamilla
admits, “[t]here is no ‘Miranda requirement’ attending a simple request for
permission to search.” United States v. Arias-Robles, 477 F.3d 245, 250 (5th
Cir. 2007). Further, “the mere presence of armed officers does not render a
situation coercive.” United States v. Martinez, 410 F. App’x 759, 764 (5th Cir.
2011) (unpublished); see, e.g., United States v. Mata, 517 F.3d 279, 291 (5th
Cir. 2008) (finding no coercion when “police did not have their weapons
drawn”). There is no evidence that Agent Garcia or Agent Freed in any way
threatened Escamilla; indeed, both agents specifically testified to the contrary.
See Mata, 517 F.3d at 291 (finding voluntary consent when “no officer
threatened or yelled at [the defendant] or ‘treated him rudely’”); United States

Escamilla also emphasizes that the agents did not inform him of his right to refuse
consent, but the district court correctly considered this fact in its totality-of-thecircumstances analysis.
6

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v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997) (emphasizing that officers did
not use threats, violence, or “overt[ly] display [their] authority”).
According to the uncontested evidence, Agent Garcia simply asked “do
you mind if I look through your phone?[,]” and Escamilla handed it over. We
have recognized that consent “can be implied from silence or failure to object if
it follows a police officer’s explicit or implicit request for consent.” Martinez,
410 F. App’x at 763. Escamilla’s conduct here constitutes more than mere
silence or failure to object—he actively complied with Agent Garcia’s request
by handing the phone directly to him. See United States v. Cooper, 43 F.3d
140, 148 (5th Cir. 1995) (finding “clear cooperation” when a defendant
“produced his ticket when requested” and “stood up voluntarily prior to the
pat-down”); United States v. Zapata, 18 F.3d 971, 977 (1st Cir. 1994) (“[I]t is
settled law that the act of handing over one’s car keys, if uncoerced, may in
itself support an inference of consent to search the vehicle.”). Accordingly,
Escamilla voluntarily consented to Agent Garcia’s search of the phone.
D
Escamilla also challenges Agent Antonelli’s two post-arrest searches of
the phone. Shortly after meeting Escamilla and the Border Patrol agents at
the station, Agent Antonelli first manually searched the phone to determine
its contact number so that he could request its call records. Escamilla then
refused to claim the phone, specifically saying that it did not belong to him and
leaving the phone with Agent Antonelli and his partner before going to jail.
Five days later, Agent Antonelli searched the phone a second time using the
forensic examination program Cellebrite.
1
The district court held that Escamilla’s consent, given during the Border
Patrol agents’ vehicle stop, encompassed Agent Antonelli’s manual search
because Escamilla never revoked his consent or indicated that he did not
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permit Agent Antonelli to search the phone. In reaching its conclusion, the
district court relied on its understanding that “Agent Garcia kept Defendant’s
phone after Defendant handed it to him”—an assertion plainly contradicted by
the record. Agent Garcia specifically testified that “after [he] searched that
telephone . . . [he] gave it back to [Escamilla] upon being done with it.” This
undisputed fact leads us to a different conclusion.
When the Government relies on consent as the basis for a warrantless
search, officers “have no more authority than they have apparently been given
by the consent.” Zavala, 541 F.3d at 576 (quoting United States v. MendozaGonzalez, 318 F.3d 663, 666 (5th Cir. 2003)). We measure the scope of a
person’s consent by what is objectively reasonable: “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 (1991).

“Thus, it is

‘important to take account of any express or implied limitations . . . attending
that consent which establish the permissible scope of the search in terms of . . .
time, duration, area, or intensity.’” United States v. Cotton, 722 F.3d 271, 275
(5th Cir. 2013) (quoting 4 Wayne R. LaFave, Search and Seizure § 8.1(c) (5th
ed. 2012)).
Here, Escamilla silently consented to Agent Garcia’s “look[ing] through”
his phone during the stop at the ranch by handing his phone directly to the
agent. It’s true that as Agent Garcia searched the phone, Escamilla never
“revoke[d] his consent,” said “not to look through his phone,” or otherwise
verbally limited the scope of the consensual search. But after viewing the
limited information on the phone, Agent Garcia “gave it back to [Escamilla]
upon being done with it.” Roughly four hours later and after Escamilla’s
arrest, Agent Antonelli searched the phone again. The Government argues
that this search was justified by Escamilla’s earlier, “general and unrevoked”
consent. But as we have explained:
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[A] defendant’s failure to object after giving his general
authorization to search might indicate that a search, later
challenged as outside the scope of consent, was actually within it.
But any failure to object “should not be treated as expanding a
more limited consent, especially when the circumstances suggest
some other possible reason for [the] defendant’s silence.”
Cotton, 722 F.3d at 278 (footnotes omitted) (quoting LaFave, supra at § 8.1(c)).
The facts surrounding Agent Garcia’s search establish an implied limit
to Escamilla’s consent. Just as Escamilla’s directly handing Agent Garcia the
phone initiated the consensual search, a reasonable person would understand
that Agent Garcia’s directly handing the phone back to Escamilla ended it.
Agent Garcia’s search during the stop was one, complete search, and Agent
Antonelli’s search at the station was a second, distinct search requiring a
warrant, its own consent, or some other exception to the warrant requirement.
See LaFave, supra at § 8.1(c) (noting that when a reasonable person consents
to a search, he or she may understand that “the search will be conducted
forthwith and that only a single search will be made”). When the facts and
circumstances surrounding a person’s consent suggest a natural end to the
consensual exchange with law enforcement, officers should not view the earlier
consent as “authorizing a second search at some future time if the first search
is not fruitful.” Id. Because it is undisputed that Agent Antonelli did not have
a warrant and the Government does not offer any other exception to the Fourth
Amendment’s usual warrant requirement to justify his search, we find that
Agent Antonelli’s post-arrest manual search of the phone at the Border Patrol
station was unconstitutional, and the district court should have suppressed the
evidence linked to this search. See Riley v. California, 134 S. Ct. 2473, 2495
(2014) (“Our answer to the question of what police must do before searching a
cell phone seized incident to an arrest is accordingly simple—get a warrant.”).

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2
Regarding Agent Antonelli’s days-later Cellebrite search—another
distinct search—the district court held that Escamilla abandoned any privacy
interest he had in the phone and therefore could not challenge this search. We
agree.
As a general rule, “Fourth Amendment rights are personal[,]” and “may
not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174
(1969). Accordingly, “a person has no standing to challenge a search or seizure
of property that was voluntarily abandoned.” United States v. Powell, 732 F.3d
361, 374 (5th Cir. 2013). In Powell, police searched defendants Booker Powell
and April Akin’s car for evidence of drug trafficking. Id. at 367-68. The officers
heard ringing during the search and discovered a phone near the driver’s seat.
Id. at 368. “Powell denied the phone was his,” and “Akin said that it belonged
to Powell.” Id. at 374. We held that by “disclaim[ing] personal connection to
the phone,” Akin abandoned it, which deprived her of standing to challenge the
admissibility of the phone and its records. 7 Id.
Like the defendant in Powell, Escamilla expressly disclaimed ownership
of the phone and left it in the possession of DEA agents. By doing so, Escamilla
abandoned the phone and has no standing to challenge Agent Antonelli’s
Cellebrite search. Escamilla’s reliance on a single out-of-circuit case, decided

At oral argument, Escamilla’s counsel heavily emphasized our decision in United
States v. Finley, 477 F.3d 250 (5th Cir. 2007), asserting that it supports his argument that
Escamilla has standing to challenge the Cellebrite search. Finley explains a noncontroversial point: a person need not own a thing to have a reasonable expectation of privacy
in it. In Finley, we held that the defendant’s possession and use of a phone officially owned
by a business was sufficient to give him a reasonable expectation of privacy in the phone and
standing to challenge its search. Id. at 259. The issue here, however, is one not addressed
in Finley: whether a person who voluntarily disclaims a thing gives up any interest he once
had in it (say, because of his possession and use) and, as a result, no longer has standing to
challenge its search. Powell answers this question affirmatively.
7

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before Powell, is misplaced. 8
E
Because we find that Agent Antonelli’s manual search of the phone
recovered from Escamilla was unconstitutional, we must address whether the
Government’s reliance at trial on unconstitutionally obtained evidence, the
phone’s contact number and AT&T records, was harmless. In other words, we
must determine whether the district court’s admitting this evidence
contributed to the jury’s verdict. Zavala, 541 F.3d at 581 (citing Neder v.
United States, 527 U.S. 1, 15 (1999)). Harmless error review is thus “factspecific and record-intensive,” requiring a close look at the trial proceedings.
United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir. 2011).
At trial, the Government introduced the phone’s contact number and the
accompanying call records to connect Escamilla to the driver of the F-250, who
actually possessed marijuana and heroin, and thus to the drug conspiracy.
Relying on these records, Agent Antonelli testified about the frequency of
communication between the phone recovered from Escamilla and the broken
phone recovered from the F-250. Specifically, he testified that the two phones
called each other 196 times and texted 29 times in the month before Escamilla’s
arrest.
Two facts are fatal to Escamilla’s argument that the unconstitutionally
obtained evidence contributed to the jury’s guilty verdict. First, Escamilla has

Escamilla relies on United States v. Lopez-Cruz, in which the defendant told an
officer that the car he was driving and two phones in the console “belonged to a friend.” 730
F.3d 803, 805-06 (9th Cir. 2013). The Ninth Circuit held that the defendant had standing to
challenge a search of the phones because the court had never held that “mere disavowal of
ownership, without more constitutes abandonment.” Id. at 809. Specifically, the court
explained that this case “involves only [the defendant’s] response to the agent’s question as
to whether the phones were his rather than any affirmative denial of any association with
the phones.” Id. Here, Escamilla more than “mere[ly] disavowed” ownership of the phone;
he simultaneously left it with two DEA agents who, believing it belonged to Escamilla, tried
to return it to him so it could be kept with his other belongings in jail.
8

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not challenged the manual search of the other phone, which led to Agent
Antonelli receiving records detailing any calls and texts to or from that phone.
Unsurprisingly, these records reflect the same 196 phone calls and 29 text
messages between the broken phone recovered from the F-250 and the phone
recovered from Escamilla, identified in the records by its contact number. As
Escamilla points out, these records are helpful only if the Government knows
the number associated with the phone recovered from Escamilla, which it
originally learned from the unconstitutional search. But at oral argument,
Escamilla’s counsel candidly admitted that the Cellebrite search, which
Escamilla lacks standing to challenge, also revealed the phone’s contact
number. 9

With this knowledge of the phone number associated with

Escamilla, the jury could have connected him to the F-250 based on only the
AT&T records from the broken phone. Consequently, the unconstitutionally
obtained evidence that Escamilla argues is harmful merely duplicates other
evidence in the trial record.
Second, the Government introduced evidence other than the phone
records that connected Escamilla to the F-250. For example, Agent Antonelli
testified that, after Escamilla’s arrest, agents discovered that the F-150
Escamilla drove and the abandoned F-250 carrying the drugs contained
identical items, such as the same brand of generic work vests and air
fresheners, which substantiated the Border Patrol agents’ “clone” theory.
Specifically, a right-handed glove found in the F-250 was the same brand and
size as a left-handed glove found in the F-150.

The Government also

introduced a recording and a transcript of a conversation between Escamilla,
while in prison, and his girlfriend, Monica Ortiz, that demonstrates his

The record supports counsel’s concession. At Escamilla’s suppression hearing, Agent
Antonelli testified that the Cellebrite search of the phone taken from Escamilla identified the
phone number, the phone’s contact list, and any recent calls.
9

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knowledge of the drug conspiracy. Escamilla told Ortiz that the person in the
F-250 “left the f***ing chip [from the broken phone] behind” and “should have
taken it with him.” Escamilla also admitted to erasing the calls on the phone
in his possession before encountering the Border Patrol agents. All of this
evidence incriminates Escamilla.

We therefore find that erroneously

admitting the evidence derived from the unconstitutional search was
harmless. See El-Mezain, 664 F.3d at 526 (“[E]rror in admitting evidence [is]
harmless when the evidence is cumulative, meaning that substantial evidence
supports the same facts and inferences as those in the erroneously admitted
evidence.”).
IV
In sum, we hold that all of the Border Patrol agents’ conduct was
constitutional and that Escamilla voluntarily consented to a search of the
phone in his possession during the lawful vehicle stop. Because Border Patrol
Agent Garcia completed his consensual search of the phone and returned it to
Escamilla, DEA Agent Antonelli’s post-arrest manual search of the phone at
the Border Patrol station was a distinct search, requiring independent
justification.

Without it, Agent Antonelli’s search was unconstitutional.

Nonetheless, because the Government discovered the same evidence from
Agent Antonelli’s manual search of the broken phone from the F-250 and the
Cellebrite search of the phone recovered from Escamilla after he abandoned it,
the relevant evidence obtained from the unconstitutional search was merely
duplicative of other admissible evidence in the trial record. Accordingly, we
affirm the judgment of the district court because the error was harmless.

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