F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellant

,

v.

A N D R E S L O P E Z -C R

U Z , Defendant-Appellee

. No. 11-50551

D.C. No. 3:11-cr-01507-J L S-1

OPI N I ON

A ppeal from the United States District Court for the Southern District of California J anis L . Sammartino, District J udg e, Presiding

Arg ued and Submitted J anuary 7, 2013—Pasadena, California

F iled September 12, 2013

B efore: W illiam C. Canby , J r., Stephen Reinhardt, and K im McL ane W ardlaw, Circuit J u dg es.

Opinion by

J udg e ReinhardtU N I T E D S T A T E S V

. L O P E Z -C R U Z 2

SUMMARY *

Crim inal Law

The panel affirmed the district court’s order suppressing eviden ce obtained when a border patrol ag ent answered incoming calls on the defendant’s cell phones, and the denial of the g overnment’s motion for reconsideration of the suppression order, in a c ase in which the d efendant is charg ed with conspiracy

to transport illeg al aliens.

Rejecting the g overnment’s c ontention that the defendant lacked standing

, the panel held that the defendant had a reasonable ex pectation of p rivacy in the phones, and that the district court did not clearly err in finding that the evidence fell short of demonstratingan unequivocal abandonment.

The panel held that the ag ent’ s a nswering the calls

ex c e eded the scope of the defendant’s consent to “look in” o r “search” the p hones. W ithout deciding the c o n s titutionality of whether a

n ag ent can read incoming tex t messag es on a phone he has been g iven c o nsent to search, the panel rejected the g overnment’s attempts to liken incoming c alls t o tex t messag es and to liken the conse n t g iven by the defendant to the contents of a search warrant.

The panel held th a t the district court did not a buse its discretion in d eny ing the g overnment’s motion for reconsideration to c onsider an arg ument, rais e d f or the first

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. L O P E Z -C R U Z 3

time in that motion, t h a t ex ig ent circumstances justified answering

the calls.

COUNSEL

L aura E. D uffy
, United States Attorney ; B ruce R. Castetter, Assistant United States A t t orney , Chief, Appellate Section, Criminal Division; D aniel E

. B utcher (arg ued), Assistant United States Attorney
, United States Attorney s’ Office, San Dieg o, California, for Plaintiff-Appellant.

Devin B u r stein ( arg ued), F ed e r a l Defenders o f San Dieg o, I nc., San Dieg o, California, for Defendant-Appellee.

OP INION

REI NHARDT, Circuit J udg e:

W h en Andres L opez -Cruz (“L opez ”) g ave a border p atrol
ag ent permission to “look in” or “search” the two cell phones he had with him, the a g ent did not ask him w hether he would also consent to the ag e n t’s answering any incoming calls. Nonetheless, whe n o n e of the phones rang while the ag ent

was conducting his search, he answered it, passing himself off as L opez

. B y answ e ri n g the c a ll, the ag ent obtained information leading to L opez ’s arrest and felony charg e s o f conspiracy to transport illeg al aliens under 8 U.S.C. §§ 1324 (a)(1)(A)(ii) and (v)(I ). L ope z m oved to suppress the evidence obtained fro m t h e p hone c alls. The district court g ranted the motion to suppress and denied the g overnment’s motion for reconsideration. The g overnment appeals.U N I T E D S T A T E S V

. L O P E Z -C R U Z 4

F ACTUAL BACK G ROUND

One evening

, b order patrol ag ent Soto and h i s partner

were patrolling Hig hway 80 near J acumba, California, an area

nea r t h e b order with Mex ico known for the smug g ling o f undocumented individuals. T he ag ents beg an surveillance o f L opez b ecause he was driving a car that they d id not recog niz e as belong ing to a n y of the residents of the nearby small tow n , and because he was “brake tapping ,” behavior that the ag e nt recog niz ed as consistent with people being “g uided in to p ick u

p somebody o r something .” W h en L opez pulled over to the shoulder of the road to make a U-turn, the
ag ents stopped their unmarked SUV behind him and activated the lig ht s t o indicate that they were law enforcement personnel.

The ag ents walked up to the car and ag e nt Soto asked L opez where he was g oing a n d what he was d o i n g

. L opez told h im that he was g oing to pick up a friend, b order p atrol
ag ent Amawandy , at a nearby c asino. He also told the ag ent that the c ar that he was driving b elong ed to a friend. Ag ent Soto testified that he did not a s k L opez who the f riend was, but that L opez ’s “answers chang ed a lot.”

During their d iscussion, age n t Soto noticed two c ell phones in the car’s center console. Soto asked L opez whether the pho n e s were his and L opez responded that the p hones, like the car, b elong ed to a friend. The a g ent then asked, “Can I look in the phones? Can I search t h e p hones? ” L opez consented by responding “y e s.” W hen conducting the search of the phones, Soto took them behind the car, out of L o pez ’s
p r esence where he could neither “see [ n] or hear wha t [ t h e ag ent] was doing with the phones.”U N I T E D S T A T E S V

. L O P E Z -C R U Z 5

W ithin about a minute, one of t he phones rang

. Rather than ig noring the call or asking L opez ’s p ermission to answer it, the a g ent answered the phone and initiated a conversation with the caller. The caller asked, “How many d id y ou p i ck

u p ? ” The ag ent responded, “none,” and the caller hun g u p

. The phone rang ag ain less than two minutes later. The ag ent answered a g a in and a different caller asked, “How d id it g o? ” The age n t r eplied in Spanish, “ I didn’t pick up any body

. There was [ sic] too many B or d e r P a t r ol in the a rea.” The caller told him to return to San Dieg o

. Shortly thereafter, the caller phoned ag a in, believing she was speaking with L opez , but instead informed ag e nt Soto that there wer e t w o people

n e x t to a house where there was a lot of lig hting

, and g ave instructions to drive there, flash his hig h beams, and the two people would come out.

The ag ents arrested L opez and followed the caller’s instructions, which led them to p ick up two people, w ho admitted to being Mex ican citiz ens without documents.

P ROCEDURAL BACK G R OUND

B e fore trial, L opez filed a motion to suppress t h e evidence obtained when the a g ent answered the incoming calls. He contended that the ag ent ex c eeded the scope of his
consent. L opez submitted a declaration stating that he “didn’t understand that [ he] had a choice to say no” when the ag ents asked for conse n t to search the phones and that “[ i] t never occurred to [ him] that a g ents were g oing to answer incoming calls on the cell phone.” He further s t a t e d t hat “[ h] ad [he] believed that ag e nt s would answer the phones, [ he] never would have g iven [ h is] p e r m i ssion to search the phones.” T h e g overnment arg ued that L opez did not have standi n g t o

c o ntest the search because he d isclaimed ownership of t h eU N I T E D S T A T E S V

. L O P E Z -C R U Z 6

phones, or, in the alternative, that answering incoming c a l l s fell within the scope of L opez ’s c onsent. The dist rict court held an evidentiary hearing a t w hich Ag ent Soto testified a nd

was cross-ex amined. Af t e r h earing evidence, the district
court requested further briefing on whether answering an incoming call falls within the scope of consent to search a c ell phone.

Ultimatel y , t he district court g ranted L opez ’ s motion to suppress. The court found t hat L opez had standing to challen ge the search of the cell phones because “the phones

were in the possession of the defendant a nd being used by the defendant at the time of the enc o u n t e r .” On the scope o f
consent issue, the distr i ct court applied the “objective reasonableness stan d a

rd” and d etermined that L o pez ’s
consent “was limited to an ex a mination of t h e p h o ne itself

a n d that further leg al justification was required before t h e ag ents answered it.” After full ex pl o r ation of the issue throug h briefing

, a hearing

, and supplemen t a l b riefing

, the district court held that a reasonable person would not “ believe that a consent to look at or search a c ell phone would include consent to answer incoming calls.”

The g overnment, receiving the d istr i c t c o urt’s permission, filed a motion fo r r e c onsideration. I n its motion, the
g ove r nment contended for the first time that the ag ent’s answering of the i n c o m i n g call was justified b y the e x ig ent circumstances ex ception to the warrant requirement. The district court d eclined to consider the newly raised arg ument for two reasons. F irst, it found that the new evidence that the
g overnment offered “was available at th e t i me of the evi d e n t i a r

y hearing .” Second, it found that the g overnment did not “ raise[ ] the ex ige n t c i rcumstances a rg u ment in the initial o r supplemental b riefing submitted when the c ourt firstU N I T E D S T A T E S V

. L O P E Z -C R U Z 7

considered [ the] m o t i o n to suppress.” B ased on these facts, the district c ourt “ decline[ d] to ex e r cise its disc retion” to g rant the motion to reconsider. T h e district court w ent on to conclude that in the alternative, even if it were to consider the newly raised ex ig ent circumstances a r g u ment, it would have rejected it because the ag ent did not have probable cause.

The g overnment appeals both the order g ranting L o pez ’s motion to suppress a

nd the o r d e r deny ing the g overnment’s motion for reconsideration.

D ISCUSSION

I. Standing

W e review de novo the dist r i c t court’s conclusion that L opez had standing to c laim that his Fo u r t h A mendment rig hts were violated when the ag ent answered incoming calls intended for L opez

. S

ee U nited States v. Reyes-Bosque
, 596 F .3d 1017, 1026 (9th Cir. 2010). W e r e view the underly ing factual finding s for clear error. Id.

To have standing to seek suppression of th e f r uits of the
ag ent’s search, L opez must show that he per s o nally had “a
p r o p e rty interest protected b y the F ourth A mendment that

was interfered with

. . . , o r a r e a s o n a b le ex pectation o f privacy that was invaded by the search.” United States v

. Padilla

, 111 F .3d 685, 688 (9t h C i r

. 1997) (quoting United States v. Padilla

, 508 U .S. 77, 82 ( 1 993)). Here, elements o f both requirements support the district court’s conclusion that L opez had standing to c ontest the ag ent’s reception of the phone calls.U N I T E D S T A T E S V

. L O P E Z -C R U Z 8

The reasonable ex pectation of privacy turns on (1) whether the person had “an actual ( subjective) ex pectation o f privacy ,” and (2 ) w h ether the individual’s subjective

ex p ectation of privacy is “one that society is prepare d t o recog niz e as ‘reasonable.”’ Katz v. United States
, 389 U.S. 347, 361 (1967) (Harlan, J
., c oncurring ). I n short, it turns on whether the individual’s subjective e x pectation o f p rivacy is objectively r eas o n a ble. United States v. Ziegler

, 474 F .3d 1184, 1189 (9th Cir. 2007) (citation omitted). 1

The district court found that “the location of the phones within the vehicle sugge s t [ s i c ] that the phones were in the possession of the defendant and being used by the defendant
at the time of the encounter.” I t also noted that “the ag ents apparently d

rew a similar conclusion by seeking defendant’s
consent before seiz ing the phones.” T h e district court’s factual conclusion—that L opez ha d p o s session of and was using the phones—is not clearly erroneou s

. Possession a nd

use of the phones suffices to make L op e z ’ s ex pectation o f privacy objectively

reasonable.

Nonetheless

, the g overnment arg ues that L opez lacks standing because (1) h e did not carry his burden by presenting affirmative evidence of ownership o r permission to use the

1 T h e p arties d isp u te w

h ich o f t w o au t o m o b ile search cases co n tro ls. L o pez arg u es t

h at Un ited S t

a tes v. Po rtillo

, 6 3 3 F.2 d 1 3 1 3 (9 th Cir. 19 8 0)

co n tro ls. T h e g o v ern m en t arg u es th at th e co n tro llin g case is Un ited S ta tes

v. Th o ma s , 44 7 F .3 d 1 19 1 (9 th Cir. 2 0 06 ). Bo th o f th ese cases, h o w ev er, in v o lv ed th e q u estio n w

h eth er d ef

en d an ts h ad stan d in g t o o b j e c t to th e search of th e veh icle. In co n trast, h ere, th e q u estio n is w h eth er L o p ez h as stan d in g to ch allen g e th e search o f t h e p h on es—item s o f p ro p erty n o t

reco v ered f

ro m a search o f t

h e v eh icle b u t p o ssessed b y L o p ez an d h an ded

o v er to th e ag en ts w ith co n sen t to s earch th em

. T h u s, n eith er Po r tillo n or Th o ma s co n tro ls h ere.U N I T E D S T A T E S V

. L O P E Z -C R U Z 9

seiz ed p hones; or, ( 2 ) i f he met his threshold burden, he abandoned an y re a sonable ex pectation of privacy w hen he

r e n ounced o wnership of the phones. W e reject b o t h
arg uments.

F irst, as the g o vernment p o i n t s out, L opez bears the burden of establishing standing

. The g o vernment is incorrect, however, in asse rting that L opez could not have carried his burden without providing proof of ownership or additional proof that he had permission t o u s e the phones b ey ond the fa c t s t h a t w ere already in the r ecord. Contrary to the
g overnment’s assertions, the fact of o wnership or permissive

use is merely one factor among many that aids in d etermining whether the individual had a reasonable ex pectation o f privacy in the item searched. See United States v. Sarkisian

, 197 F .3d 966, 987 (9th Cir. 1999) ( “[ T] he failure t o a lleg e ownership o f the items seiz ed, b y itself, could not bar standing to challeng e the search,” althoug h it is “a factor to be considered.”). Althoug h we have not a nnounced a p recise set of factors to be considered in determining whether there

ex ists a reasonable ex p ectation of priva c y , the F ifth Circuit considers:

w h e ther the defendant has a property o r p o s s essory interest in the thing seiz ed or th e place searched, whether he has a rig ht to

ex c lude o thers from that place [ or the thing seiz ed]

, whether h e has ex hibited a subjective

ex p ecta t i o n of privacy that it would remain free f rom g overnmental intrusion, whether he took normal precautions to maintain privacy

, and whether he was leg itimately on the premises [ or leg itimately in p ossession of the thing seiz ed]

.U N I T E D S T A T E S V

. L O P E Z -C R U Z 10

United S tates v. Finley

, 477 F .3d 250, 258–59 (5th Cir. 2 007) (quoting United State s v. Cardoza–Hinojosa

, 140 F .3d 610, 615 (5th Cir. 1998)) ( orig inal alterations and quotation marks omitted). Althoug h we do not adopt the F ifth Circuit’s list o f f a c tors as ex haustive, they are among the factors tha t a r e g enerally relevant to our analy sis.

As the district court f

ound f ro m t h e facts in the record, L opez h a d possession of the phones and was using them. He certainly ha d the rig ht to e x clude others from using the phones. H e also had a reasonable ex pectation of privacy in incoming calls and a r easonable ex pectation that the contents of those calls “would remain free from g overnme ntal intrusion.” Finley

, 477 F .3d a t 259 (citation omitted). L opez “took normal precautions to maintain privacy ,” id.

, in that he did not abandon or throw the p hones o ut of the car when the
ag ents stopped h im. F inally

, n o evidence sug g ested that L opez did n ot leg itimately p ossess the phones. W e conclude, therefore, that L opez had a reasonable ex pectation of privacy in the phones.

The g overnment’s second arg ument is that L opez lacks standing because he voluntarily aba ndoned the c ell p hones, thereby abandoning any ex pectation of privacy in them. The
g overnment arg ues that L opez abandoned any privacy interest in the phone s w h en he told the officer that they belong ed to

a friend. The touchstone of “a b a n d o n ment is a question o f intent,” however. United States v. Nordling

, 804 F .2d 1466, 1469 (9th Cir. 19 8 6 ). W e conduct a “totality of the circumstances” inquiry that “ f ocus[ es] on whether, throug h words, a cts or othe r o b j e ctive indications, a person has

r elinquished a reasonable e x pectation of privacy in t h e property at the time of the search or seiz ure.” Id. (citations omitted).U N I T E D S T A T E S V

. L O P E Z -C R U Z 11

The district court’s f

actual finding s that “the phones were in the possession of [ L opez ] and b eing u sed by [ him] at the time of the encou n t e r” were not clearly erroneous, and, th e refore, the g overnment cannot reasonably claim that L opez abandoned the privacy interest simply by deny ing ownership. The d istrict court’s f

actual finding s support the co n c l u s ion tha t L opez did not abandon his reasonable ex pectation o f privacy in the phones. I t found that “[ L opez ] told Ag ent Soto that the phones belong ed to a friend, but he did not disclaim

use of them or otherwise disa ssociate h imself from them.” F urther, as the district c ourt ex plained, the fact that the ag ent soug h t L opez ’s permission before searching t h e p h ones sug g e s t s that the ag ent d id not believe that L o pez h ad abandoned his privacy interest in the phones, and contradicts the g ov e r n m e n t’s position that his actions e x hibited a clear abandonment of them.

Moreover, none of o ur “abandonment” cases has held that

mere disavowal of o wnership, w ithout more, cons t itutes abandonment of a p erson’s reasonable ex pectation o f privacy in that p roperty

. F o r ex ample, in United S tates v. Decoud

, the defendant disclaimed ownership, but he also e x plained that “he did not know how to open” the locked briefcase found in the trunk of the car that he was d r i v i n g, thus deny ing any form o f association with the briefcase. 456 F .3d 996, 1001 (9th Cir. 2006). L ikewise, in Nordling

, we concluded that the defendant had abandoned his lug g a g e because he knowing ly left it on the plane under a seat when he was escorted off b y officials and twice denied ha ving had any lug g ag e with him

on the flig h t. 804 F .2d at 1 4 6 9

– 7 0

. B ecause L opez ’s case involves only his r e sponse to the ag ent’s question a s to whether the phones were h is r ather than any affirmative denial of any association with the p hones, the district court’s conclusion that “the evidenc e in this case fell short o fU N I T E D S T A T E S V

. L O P E Z -C R U Z 12

demonstrating an unequivocal abandonment of the property ” was not clearly

erroneous.

II. Scope of

Consent

“I t is a violation of a suspect’s F ourth Amendment rig hts for a consensual search to ex ceed the scope of the co n sent g iven.” United States v. McW eeney , 454 F

. 3 d 1030, 1034 (9th Cir. 2006). The district court determined that the ag ent’s
act of answering the incoming p hone call ex ceeded the scope of L o pez ’s consent. W e rev i e w “ [ a] d istrict court’s finding

as to the scope of consent [ ] f or c lear error.” United States v

. Huffhines

, 967 F

. 2d 314, 319 (9th Cir. 1992). The
g overnment arg ues that the standard of r evie w should be de

novo because this case presents the leg al question of whether

a g eneral consent to search a phone includes consent to

answer it. See United States v. Shaibu

, 920 F .2d 1 423, 1425 (9th Cir. 1990) (noting that a pure question of law in F ourth Amendment cases is reviewed de n ovo). B ec a u s e we reach the same result under either standard, w e consider whether
consent to search a phone, without m o r e, g enerally includes consent to answer it.

The scope of consent is determined by asking “what would the ty

pical reasonable person have understood by the

ex c h a ng e b etween the officer and the suspect? ” Florida v

. Jimeno
, 500 U.S. 2 4 8
, 251 ( 1991). The test is an objective

one. The distr i c t court ex plained that a reasonable person would not “believe that a c onsent to look at o r search a c ell phone would include consent t o an s wer incoming calls.” I t held that L opez ’s “consent in this case was limite d t o an

ex a mination o f the phone itsel f and that further leg al justification was required before the ag e nts answered it.”U N I T E D S T A T E S V

. L O P E Z -C R U Z 13

At the s u p pression h earing

, the a g ent testified that he

a s k e d L opez : “Can I look in the phones? Can I search t h e phones? ” L o pez submit t e d a declaration that stated: “I t

never o c curred to me that a ge n t s were g oing to answer incoming c alls on the cell phone. H ad I believed that ag ents would answer the phones, I n e ver w ould have g iven my permission to sea r c h the phones.” Apply ing the Jimeno “reasonable person” standard to these facts, the district court determined that L opez ’ s consent to search the phones did not

ex tend to answering incoming c a l l s

. The district court’s ruling was correct.

N o netheless, the g o vernment presses two arg uments i n support of its c laim that answering incoming calls

c ateg orically falls within the scope of consent to sea r c h a phone. F irst, the g overnment contends that answering a c all is no different from pushing a button to read an incoming tex t messag e (which it assumes would fall wit h in the scope of a g eneral consent). W ithout deciding the constit u t ionality o f whether a n a g ent can read incoming tex t messag es on a phone he has been g iven c o nsent to search, we reject the
g overnment’s attempt to liken incoming calls to tex t messag es. W hen an agent a n swers the incoming call a nd
eng ag es the caller in conversation, as ag ent Soto did here, he intercept s a call intended f o r the individual in possession o f the phone and pretend s t o b e that person in order to obtain information or create a n ew ex chang e w ith the caller. The
ag ent’s impersonation of the intended recipient constitutes a meaning ful difference in the method and scope of the search in contrast to merely pushing a button in order to view a tex t messag e. The ag ent is n ot simply v iewing the contents of the phone ( whether incoming tex t messag e s or stored messag es), but instead, is actively impersonating the intended recipient. H ere, ag ent Soto did so by answering a call, concealing t h eU N I T E D S T A T E S V

. L O P E Z -C R U Z 14

fact that he was a border patrol ag ent, a n d l e a ding the caller
t o b elieve that the information he was e x chang ing was wi t h L opez

.

The g overnment’s second arg ument seeks to lik e n t he
consent g iven by L opez t o t he contents of a search warrant. The g overnment reasons that because we held that answering incoming calls did not ex c eed the scope o f the relevant search
warrant in two cases, United States v. Ordonez

, 737 F .2d 793, 810 (9th Cir. 1984) (amended opinion), and United States v. Gallo

, 659 F

. 2d 110 (9th Cir. 1 981)

, t he answering o f incoming calls following a consent to search the phones does
not ex ceed t h e scope of that consent. B ecause a search

w a r r a n t is materi al l y d i ff e re n t f r o m c o n s e n t , t h e g overnment’s arg

ument fails.

A search pursuant to a warrant is “limited by the ex tent o f the probable c ause” on which the warr a nt is based. In re Grand Jury Subpoenas D ated Dec. 10, 1987
, 9 26 F .2d 847, 857 (9th Cir. 1991). I n contrast, a search pursuant to consent is limited b y the ex tent of the consent g iven for the search b y the individual. J

imeno
, 500 U.S

. a t 2 5 1

. U nlike a scope o f the search warrant case, in which we review for whether the evidence seiz e d was “reasonably related to the purpose of the search” (that is, reasonably rela t e d to the probable cause supporting the issuance of the w ar r an t ), Ordonez

, 737 F .2d
at 8 10, in a scope o f c o n s ent c a se, w e review for what “the ty p i c a l reasonable person [ would] h ave understood” the parties to have said to each other, Jimeno
, 5 0 0 U

. S. at 251.

Ag ent Soto did not have a warrant. According ly

, h e did
not have authority to search f or evidence that mig h t have fallen within the scope of a warrant that he did n ot have. The only authority to search that age n t Soto had was p ursuant toU N I T E D S T A T E S V

. L O P E Z -C R U Z 15

L opez ’s consent. According ly

, the g overn m ent’s position that the rea s o n i n g of Gallo and Ordonez applies h ere is simply incorrect. An i n dividual w ho g ives consent to the search of his phone does not , w i t hout more, g ive consent to his impersonation by a go v e rnment ag e nt, nor d oes h e g ive the ag ent permission to carry on conversations in which the
ag ent p articipates in his n am e in the conduct of criminal activity

.
Thus, w e reject the g overnment’s p osition that consent to search a cell phone ex tends to answering incoming calls. Here, the ag ent’s answering of the phone ex ceeded the scope

o f the consent that he obtained and, thus, violated L o pez ’s F ourth Amendment rig h t. As a g eneral matter, consent to search a c ell phone is insufficient to a llow an ag ent to answer that phone; rather, specific consent to answer is necessary

.

III. The Motion f

or Reconsideration

The g o vernment a sks us to r each and accept its arg ument, raised f o r the first time on a motion to reco n sider before the district court, that ex ig e n t c ircumstances justi fied the answering of the phone calls. The district court d eclined to

ex e r cise its d iscr e t i o n to consider this belated a rg ument. I t found that “the ex ig ent circumstanc e s arg ument was not raised in the initial or supplemental b riefing submitted when the court first co nsidered Defendant’s motion to suppress,” and that t h e n e w evidence, a declaration from ag e nt Soto
go i ng to his probable cause for the search “was available at the time of the evidentiary hearing ” b u t n o t p resented to the court. The district court reasoned:

Afterthoug hts or shift i n g g r ound do not

c o n s t i t u t e a n a p p r o p r i a t e b a s i s f o rU N I T E D S T A T E S V

. L O P E Z -C R U Z 16

reconsideration. *** Nor is a motio n t o reconsider justified on the basi s of new evidence which could have been discovered prior to the court’s ruling

. According ly

, with

r e s p e c t t o t h e g o v e r n m e n t ’ s e x i g e n t circumstances arg u ment, the court f inds no valid b a s is for reconsideration of its p r ior order and declines to ex ercise its discretion in this reg ard.

Althoug h the g overnment contends that the district court incorrectly r elied on the law of the case doctrine, it misunderstands the district court’s ruling

. 2 The district court cited the law of the case doctrin e i n a n o t her part of its decision, but did not r ely on that doctrine when declining to

ex ercise its discretion to consider the g o vernment’s e x ig ent circumstances arg

ument.

W e review t h e d i s trict court’s denial of a motion to reconsider for abuse of d iscretion. United States v

. Tapia-Marquez
, 361 F. 3 d 5 35, 537 (9th Cir. 2004); see United States v. Hinkson

, 5 85 F

. 3d 1247, 1261–62 (9th Cir. 2009) (en banc). No precise “rule” g overns the district

2 T h e d istrict co u rt cited th e law o f th e case w h en d eclin in g to reco n s id er its earlier ru lin g th at L o p ez h ad s tan d in g —th e g o v ern m en t’ s f irst b asis f or

reco n sid eratio n

—b u t th at d i scu ssio n w as n o t relev an t to th e g o v ern m en t’ s

n ew arg u m en t o f ex ig en t circu m s tan c e s , w h ich co n stitu

ted th e g o v ern m en t’ s seco n d an d en tirely sep arate b asis f o r reco n s id eratio n . A s

ex p lain ed in th e tex t , in

fra

, i n d ecid in g th e g o v ern m en t’ s seco n d b asis f or

reco n sid eratio n , th e d istrict co u rt ap p r o p r i ately d eclin ed to ex ercise its d iscretio n to co n sid er an arg u m en t n o t p rev io u sly raised

. It d id n o t

m en tio n o r rely o n

law o f th e case.U N I T E D S T A T E S V

. L O P E Z -C R U Z 17

court’s inherent power to g rant or deny a motion to reconsider

a prior ruling in a c riminal p roceeding

. Rather, the district court’s authority to revisit a ruling on a s u p pression motion “i s w i t h i n its sound judicial discretion.” United States v. Raddatz

, 447 U.S. 6 67, 67 8 n

. 6 ( 1 980). I n United S tates v

. W ong , we affirmed a denial of a motion for reconside r a tion of a suppression order because the new evidence “could readily have been presented a t the orig inal hearin g on the motion to suppress” and b ecause the defendant offered no

ex c u se for the failure to do so. 470 F .2d 129, 132 (9th C i r. 1972). Her e, the district court ex ercised its discretion in a manner consistent with these cases, declining to consider an
arg ument and evidence that the g overnment failed to raise in its opposition to the motion to suppress, in the hearing on the motion, in its briefing before the hearing

, or in its supplemental briefing

after the hearing

on the motion.

The g overnment g ives no r e a son f or its failure to r a ise o r arg ue ex ig e nt circumstances prior to the district court’s g rant of the motion to suppress. I n stead, it w ishfully asserts that it did raise the ex ig ent c ircumstances e x c eption in its initial briefing

. I t say s that it did so inferentially by citing to United States v. Davis
, 787 F

. Supp. 2d 11 6 5 (D. Or. 2011), which discussed a number of ex c e ptions to the w arrant requirement, i n cluding the ex ig ency e x ception. Not only did th e g overnment quote from a section of Davis having little to do with the ex ig ent circumstances ex c e ption, but nowhere in its briefing d i d the g overnment mention ex ig ency or probable

cause. 3

3 Wh ile th e g ov ern m en t cited Da vis in its o p p o sitio n , th e sectio n q u oted d i s cu sses th e ex ig en t circu m stan ces ex cep tio n o n ly b rief ly

. T h e sec t i o n

o f Da vis th at f

u lly d iscu sses an d d isp o ses o f th e ex ig en cy

ex cep tio n

w as

n o t cited

. T h e d i strict co u rt d id n o t ab u se its d iscretio n in d eterm in in g th atU N I T E D S T A T E S V

. L O P E Z -C R U Z 18

The d istrict court did not abuse its discretion in deny in g the motion for reconsideration. I ts reason for deny ing the motion to reconsider was log ical, plausible, and supported b y inferences drawn from the record. Hinkson

, 585 F .3d at 1 2 6 2

. W e k

now of no case reversing a d istrict court f o r

ex e r cising its d iscretion in this manner, and the g o v e rnment cites none. 4

CONCLUSION

F or the reasons discussed above, we AF F I RM the district court’s order suppressing the evidence obtained by answering L opez ’s cell phones a

nd AF F I RM the district c o u rt’s denial of the g o vernment’s motion for reconsideration.

AF F IRMED

.

su ch cu rso ry treatm en t b y th e g o v ern m en t w as in su f f icien t t o r a ise th e

ex ig en cy ex cep tio n

. T h is i s esp ecially th e case b ecau se th e g o v ern m en t

n ev er d iscu ssed e x ig en cy o r p ro b ab le cau se. Fu rth er, th e g o v ern m en t cited to Da vis o n ly to arg u e th at L o p ez g av e ag en t So to p erm issio n to

an sw er th e c e ll p h o n es, n o t t o arg u e th at a sep arate ex cep tio n to th e

w arran t req u irem en t ex isted

.

4 In v i ew o f o u r h o ld i n g , su p ra , w e d o n o t co n sid er th e d istrict co u rt’ s altern ativ e h o ld i n g th at n eith er p ro b ab le cau se n or ex ig en t circu m stan ces

ex isted

.

T h e g ov ern m en t raises an oth er n ew arg u m en t in its rep ly brief

, citin g Hu d so n v. Mich i

g a n , 5 4 7 U.S. 5 8 6 (2 0 0 6 )). T h is arg u m en t is w aiv ed

. S ee Ma rtin ez-S

erra n o v. I.N.S

. , 9 4 F.3 d 1 2 5 6 , 1 2 5 9 (9 th Cir. 1 9 9 6 ).