FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

CHRISTOPHER MARCEL 

ESQUEDA, 

Defendant-Appellant.

No. 22-50170 

D.C. No. 

8:20-cr-00155-

JFW-2 

OPINION

Appeal from the United States District Court

for the Central District of California

John F. Walter, District Judge, Presiding

Argued and Submitted October 16, 2023

San Francisco, California

Filed December 12, 2023

Before: Carlos T. Bea, Morgan Christen, and Anthony 

Johnstone, Circuit Judges.

Opinion by Judge Bea
2 USA V. ESQUEDA

SUMMARY*

Criminal Law

The panel affirmed the district court’s denial of 

Christopher Esqueda’s motion to suppress evidence in a case 

in which Esqueda entered a conditional plea to possessing a 

firearm as a felon, 18 U.S.C. § 922(g)(1).

An informant and undercover officers conducted a 

controlled purchase of a firearm from Esqueda in his motel 

room. The undercover agents—without a search warrant—

entered the motel room with the consent of Esqueda and his 

co-defendant. The agents surreptitiously recorded the 

encounter using audio-video equipment concealed on their 

persons. The video recordings depicted the interior of 

Esqueda’s motel room during the encounter and showed 

Esqueda handing a .22 caliber revolver to an undercover 

officer.

Esqueda argued that the officers’ secret recording of the 

encounter exceeded the scope of the “implied license” he 

granted when he consented to the officers’ physical entry.

He therefore claimed that the officers conducted a search 

violative of his Fourth Amendment rights under the Supreme 

Court’s trespassory, unlicensed physical intrusion test 

outlined in Florida v. Jardines, 569 U.S. 1 (2013), and 

United States v. Jones, 565 U.S. 400 (2012).

The panel rejected this argument because longstanding 

Supreme Court precedent that preceded Katz v. United 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. ESQUEDA 3

States, 389 U.S. 347 (1967), 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. The panel wrote that the Supreme 

Court’s decisions in Jardines and Jones do not disturb that 

well-settled principle. The panel therefore held that no 

search violative of the Fourth Amendment occurred.

COUNSEL

Waseem Salahi (argued), Deputy Federal Public Defender; 

Cuauhtemoc Ortega, Federal Public Defender; Federal 

Public Defender’s Office, Los Angeles, California, for 

Defendant-Appellant.

Nisha Chandran (argued), Assistant United States Attorney, 

Cyber and Intellectual Property Crimes Section; Jena A. 

MacCabe, Assistant United States Attorney; Bram M. 

Alden, Assistant United States Attorney, Criminal Appeals 

Section Chief; E. Martin Estrada, United States Attorney; 

United States Department of Justice, United States 

Attorney’s Office, Los Angeles, California; for PlaintiffAppellee.

Mohammad Tajsar, ACLU Foundation of Southern 

California, Los Angeles, California; Emi Young, ACLU 

Foundation of Northern California, San Francisco, 

California; for Amici Curiae American Civil Liberties Union 

California Affiliates.
4 USA V. ESQUEDA

OPINION

BEA, Circuit Judge:

Defendant-Appellant Christopher Esqueda pleaded 

guilty to possessing a firearm as a felon, 18 U.S.C. 

§ 922(g)(1). Esqueda conditioned his guilty plea to allow his 

appeal of the district court’s denial of his motion to suppress 

evidence.

In January 2020, an informant and undercover officers 

from the Bureau of Alcohol, Tobacco, Firearms, and 

Explosives and the Costa Mesa Police Department 

conducted a controlled purchase of a firearm from Esqueda

in his motel room. The undercover agents—without a search 

warrant—entered the motel room with the consent of 

Esqueda and his co-Defendant, Daniel Alvarado. The agents

surreptitiously recorded the encounter with Esqueda and 

Alvarado using audio-video equipment concealed on their 

persons. The video recordings depicted the interior of 

Esqueda’s motel room during the encounter and showed 

Esqueda handing a .22 caliber revolver to an undercover 

officer.

Esqueda argues that the officers’ secret recording of the 

encounter exceeded the scope of the “implied license” he 

granted when he consented to the officers’ physical entry.

He therefore claims that the officers conducted a search 

violative of his Fourth Amendment rights under the Supreme 

Court’s trespassory, unlicensed physical intrusion test 

outlined in Florida v. Jardines, 569 U.S. 1 (2013), and 

United States v. Jones, 565 U.S. 400 (2012). The district 

court denied Esqueda’s motion to suppress the video 

evidence and any evidence derived from the video recording. 

Esqueda then pleaded guilty, and the district court entered 
USA V. ESQUEDA 5

judgment of conviction. Esqueda appeals the district court’s 

decision denying his motion to suppress.

We have jurisdiction under 28 U.S.C. § 1291. We reject 

Esqueda’s argument because longstanding, pre-Katz1

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. See Lopez v. United States, 373 U.S. 427, 438–

39 (1963); On Lee v. United States, 343 U.S. 747, 752–53 

(1952). We do not read the Supreme Court’s decisions in

Jardines and Jones as disturbing that well-settled principle.

We therefore hold that no search violative of the Fourth 

Amendment occurred and affirm the district court’s 

judgment of conviction following its order which denied 

Esqueda’s motion to suppress the audio-video evidence of 

his possession of a firearm. We do not examine whether the 

agents’ actions constituted a search under Katz, because 

Esqueda correctly recognizes that our Circuit precedent 

forecloses such a claim; therefore, he does not raise it. See 

United States v. Wahchumwah, 710 F.3d 862, 868 (9th Cir. 

2013).

I.

A.

On January 9, 2020, a confidential informant and 

undercover officers from the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (“ATF”) and the Costa Mesa 

Police Department (“CMPD”) conducted a controlled 

1 See Katz v. United States, 389 U.S. 347, 352–53 (1967); id. at 361–62

(Harlan, J., concurring).
6 USA V. ESQUEDA

purchase of firearms and methamphetamine from Esqueda’s

co-defendant, Daniel Alvarado, in Room 352 of the Valencia 

Inn Motel in Anaheim, California. Esqueda was not present 

at this transaction.

Over the next eleven days, the ATF and CMPD officers 

arranged an additional meeting with Alvarado to purchase 

firearms and methamphetamine. In a recorded phone call, 

Alvarado told an officer that he might have an AR (rifle), a 

ghost Glock-type pistol, and a “little Derringer” (revolver)

for sale. The officer agreed to purchase methamphetamine 

from Alvarado and arranged a meeting to conduct the 

transaction.

On January 22, 2020, the officers returned to the 

Valencia Inn Motel to conduct the drug and firearm

transactions. Alvarado told the officers to come to Room 

302, rather than Room 352 where the first transaction had 

occurred. At the time, Esqueda was staying in Room 302 and 

had paid approximately $600 to cover half of the room’s cost 

for a three-week stay.

When the officers arrived at Room 302, Alvarado 

opened the door and allowed the officers to enter the room.

Unbeknownst to either Esqueda or Alvarado, the officers 

were wearing audio-video recording devices on their 

persons; the devices captured the ensuing interaction.

Once inside the room, the officers saw Esqueda and met 

and exchanged greetings with him. The officers had not 

previously met Esqueda and did not know Esqueda’s identity 

at the time they entered the room.

Alvarado handed the officers a bag of 

methamphetamine, at which point the officers asked about 

the firearms. After the officers inquired whether Alvarado 
USA V. ESQUEDA 7

had the “Derringer” firearm, Alvarado directed Esqueda to 

retrieve that firearm. Esqueda produced the Derringer—

subsequently determined to be a .22 caliber revolver—from 

his person and handed it to an ATF undercover officer.

Esqueda also stated that the firearm was loaded. The ATF 

agent gave Alvarado $400 for the firearm. The officers then 

left the room, still wearing their recording equipment.

The video recordings depicted the interior of Esqueda’s 

motel room during the encounter, and captured the 

interaction in which Esqueda handed the firearm to the 

officers and stated that the firearm was loaded.

After the encounter, the officers conducted a records 

check/query through law enforcement databases for a 

California Department of Motor Vehicles photograph of 

Esqueda. The officers found a record and identified Esqueda 

as the individual who had handed them the Derringer in the 

motel room.

B.

In October 2020, a federal grand jury indicted Esqueda

under 18 U.S.C. § 922(g)(1), for possessing a firearm after 

having previously been convicted of at least one felony.

Esqueda moved to suppress the video evidence and any 

fruits derived from the video recording.2 He claimed that, by 

secretly recording the inside of his living space without his 

2 Esqueda claimed that, because the officers did not know his identity 

when they entered the room, the officers may have used the video to 

identify him. Thus, he argues that his identification was the fruit of an 

unconstitutional search. However, we conclude that the secret recording

did not amount to a search violative of Esqueda’s Fourth Amendment

rights. Whether the officers later used the recording to identify Esqueda

is therefore irrelevant.
8 USA V. ESQUEDA

consent, the officers exceeded the scope of the license 

Esqueda had provided when he consented to the officers’ 

entry. Therefore, Esqueda argued that the video recording 

amounted to a warrantless Fourth Amendment search of his 

living space under the Supreme Court’s property-based, 

trespassory test articulated in Jones and—more 

specifically—the “scope of a license” test discussed in 

Jardines. See Jones, 565 U.S. at 405–06; Jardines, 569 U.S. 

at 9.

The district court held that no Fourth Amendment search 

had occurred and denied Esqueda’s motion to suppress. 

Esqueda then entered a conditional guilty plea in which he 

reserved the right to appeal the district court’s denial of his 

motion to suppress. The district court sentenced Esqueda to 

24 months in prison and 3 years of supervised release. This 

appeal followed.

II.

In general, evidence that the government obtains in 

violation of a criminal defendant’s Fourth Amendment 

rights must be excluded from that defendant’s trial. Weeks v. 

United States, 232 U.S. 383, 398 (1914). Whether the 

exclusionary rule applies to a given case is reviewed de 

novo, and factual findings are reviewed for clear error. 

United States v. Lundin, 817 F.3d 1151, 1157 (9th Cir. 

2016).

A.

The Fourth Amendment provides, in relevant part, “[t]he 

right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated.” U.S. Const. amend. IV. It is 

undisputed that Esqueda’s motel room is a constitutionally 
USA V. ESQUEDA 9

protected area that is entitled to Fourth Amendment

protections. See Stoner v. California, 376 U.S. 483, 490 

(1964). But if police conduct does not amount to a search or 

seizure, the Fourth Amendment does not regulate that 

conduct. See, e.g., Hoffa v. United States, 385 U.S. 293, 302 

(1966).

The Supreme Court has held that a Fourth Amendment 

search can occur in one of two ways. First, under the Katz 

test, a search occurs when the “government violates a 

subjective expectation of privacy that society recognizes as 

reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001) 

(citing Katz v. United States, 389 U.S. 347, 361 (1967) 

(Harlan, J., concurring)). Second, under the “unlicensed 

physical intrusion” test, a search occurs when the 

government “physically occupie[s] private property for the 

purpose of obtaining information,” Jones, 565 U.S. at 404,

“to engage in conduct not explicitly or implicitly permitted” 

by the property owner, Jardines, 569 U.S. at 6.

3 Each test is 

independently sufficient to determine whether government 

conduct amounts to a Fourth Amendment search: a search 

occurs if police conduct satisfies either the Katz test or the 

unlicensed physical intrusion test, even if that conduct does

not amount to a search under the other test. See Jones, 565 

U.S. at 406 (“Fourth Amendment rights do not rise or fall 

with the Katz formulation.”).

Esqueda concedes that Ninth Circuit precedent 

forecloses any claim that a Fourth Amendment search 

occurred under the Katz test. In Wahchumwah, this Circuit 

3 The Supreme Court has also referred to this test as the “common-law 

trespassory test” because the Fourth Amendment “embod[ies] a 

particular concern for government trespass” on constitutionally 

protected areas. Jones, 565 U.S. at 406.
10 USA V. ESQUEDA

held that “an undercover agent's warrantless use of a 

concealed audio-video device in a home into which he has 

been invited by a suspect” is not a Fourth Amendment search 

under the Katz framework. 710 F.3d at 868. However, the 

panel in Wahchumwah declined to decide the question 

presented here: whether the same conduct is a search under 

the unlicensed physical intrusion test discussed in Jones and 

Jardines. Id. at 868 n.2. Because a Fourth Amendment 

search can occur under the unlicensed physical intrusion test 

even if no search occurs under the Katz test, see Jones, 565 

U.S. at 406, Wahchumwah does not dispose of Esqueda’s 

Fourth Amendment challenge. Instead, we evaluate 

Esqueda’s claim that a Fourth Amendment search occurred 

under the unlicensed physical intrusion test examined in 

Jones and Jardines. See, e.g., United States v. Dixon, 984 

F.3d 814, 816 (9th Cir. 2020) (holding that an officer who 

inserted a car key into a lock conducted a Fourth 

Amendment search under Jones, even though a prior panel 

had held that the same conduct was not a Fourth Amendment 

search under Katz).

B.

In Jones and Jardines—decided in 2012 and 2013, 

respectively—the Supreme Court examined the history of 

the unlicensed physical intrusion test and evaluated its 

scope. See Jones, 565 U.S. at 405; Jardines, 569 U.S. at 11. 

As the Court summarized it: 

The [Fourth] Amendment establishes a 

simple baseline, one that for much of our 

history formed the exclusive basis for its 

protections: When the Government obtains 

information by physically intruding on 

persons, houses, papers, or effects, a search 
USA V. ESQUEDA 11

within the original meaning of the Fourth 

Amendment has undoubtedly occurred. 

Jardines, 569 U.S. at 5 (cleaned up) (citing Jones, 565 U.S. 

at 406 n.3).

The property-based, unlicensed physical intrusion test, 

then, governed Fourth Amendment search doctrine for most 

of U.S. history. Jardines, 569 U.S. at 5; see Orin S. Kerr, The 

Fourth Amendment and New Technologies: Constitutional 

Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816

(2004) (“It is generally agreed that before the 1960s, the 

Fourth Amendment was focused on the protection of 

property rights against government interference.”).

However, after Katz in 1967, the Court “deviated from that 

exclusively property-based approach.” Jones, 565 U.S. at

405. For the next 45 years, the Supreme Court relied 

exclusively on the Katz reasonable-expectation-of-privacy 

test to determine whether and when government conduct 

amounts to a Fourth Amendment search. Id. 

That era came to an end in Jones and Jardines. There, 

the Supreme Court made clear that Katz has never been the 

exclusive method for evaluating whether a Fourth 

Amendment search occurs. See Jones, 565 U.S. at 405, 409 

(explaining that the Katz test “has been added to, not 

substituted for,” the traditional property-based 

understanding of the Fourth Amendment); Jardines, 569 

U.S. at 5, 11 (“Katz . . . add[s] to the baseline . . . .”). It 

instead revitalized the traditional, unlicensed physical 

intrusion test that Esqueda relies on here. See Jones, 565 

U.S. at 405–06. The Supreme Court in Jones and Jardines, 

then, did not purport to create a new Fourth Amendment 

framework or disturb any pre-Katz caselaw. Instead, the 

Court merely applied the property-based approach to Fourth 
12 USA V. ESQUEDA

Amendment search doctrine that had governed from the 

founding until the Supreme Court’s decision in Katz. See 

Dixon, 984 F.3d at 819 (referring to Jones as a “reminder 

that the Fourth Amendment protects not only reasonable 

expectations of privacy, but also against physical intrusions 

by law enforcement onto property”).

In Jardines—the case Esqueda relies on most heavily 

here—the Supreme Court held that bringing a drug-sniffing 

dog onto the front porch of a home to investigate drug 

trafficking was an “unlicensed physical intrusion,” and 

therefore a Fourth Amendment search, notwithstanding 

whether a search occurred under Katz. Jardines, 569 U.S. at 

7, 11. The Court explained that a Fourth Amendment search 

had occurred because the officers gathered information “by 

physically entering and occupying the [curtilage of the 

defendant’s home] to engage in conduct not explicitly or 

implicitly permitted by the homeowner.” Id. at 5–7, 11.

A license to enter private property, the Court reasoned, 

“can be implied from the habits of the country.” Id. at 8 

(quoting McKee v. Gratz, 260 U.S. 127, 136 (1922)). 

Although the officers had an implied license to approach the 

door and knock because “that ‘is no more than any private 

citizen might do,’” id. (quoting Kentucky v. King, 563 U.S. 

452, 469 (2011)), the use of a trained dog “in hopes of 

discovering incriminating information is something else,” 

because “[t]here is no customary invitation to do that,” id. at 

9 (emphasis in original). “The scope of a license—express 

or implied—is limited not only to a particular area but also 

to a specific purpose.” Id. And the social norms that license 

a person to approach a front door and knock “do not invite 

him there to conduct a search.” Id. The officer’s behavior 

“objectively reveal[ed] a purpose to conduct a search, which 
USA V. ESQUEDA 13

is not what anyone would think he had license to do.” Id. at 

10.

Because the officers, without express consent, 

“physically intrud[ed]” on the defendant’s property with the 

sole intent “to gather evidence”—and thus exceeded the 

implied license that permitted them to approach the door and 

knock—a search had “undoubtedly occurred.” Id. at 5, 11 

(quoting Jones, 565 U.S. at 406 n.3); id. at 9 n.4 (“[N]o one 

is impliedly invited to enter the protected premises of the 

home in order to do nothing but conduct a search.”). The 

Court remarked that the “property-rights baseline . . . keeps 

easy cases easy” and noted that, under that baseline test, “this 

case [is] a straightforward one.” Id. at 5, 11.

III.

Esqueda argues that this Court must evaluate the 

undercover officers’ conduct under the framework 

articulated in Jardines. He claims that, because it is not a 

“habit[] of the country” to record a person secretly inside of 

his home—particularly when the officer’s purpose is to 

investigate illicit conduct—the officers engaged in conduct 

that he did not “explicitly or implicitly permit[]” and thus

exceeded the scope of their license to enter the motel room. 

See id. at 5–8. In turn, according to Esqueda, the officers 

conducted a search violative of his Fourth Amendment rights 

under Jardines. We are unpersuaded.

A.

As an initial matter, Esqueda does not argue—nor could 

he—that the officers conducted a Fourth Amendment search 

merely because they concealed their identities to gain 

consent to enter the motel room for the purpose of 

investigating illicit conduct. See United States v. Bramble, 
14 USA V. ESQUEDA

103 F.3d 1475, 1478 (9th Cir. 1996) (“It is well-settled that 

undercover agents may misrepresent their identity to obtain 

consent to entry.” (citing Lewis v. United States, 385 U.S. 

206, 211 (1966))). There is no dispute that the officers stayed 

within the physical confines of Esqueda’s express consent

when inside the motel room. The officers did not, for 

example, physically attach the recording devices to 

Esqueda’s property, see Silverman v. United States, 365 U.S. 

505, 509–12 (1961), surreptitiously enter any part of the 

motel room without consent, see Gouled v. United States, 

255 U.S. 298, 306 (1921), or leave the recording devices 

inside the room after they departed, see United States v. 

Nerber, 222 F.3d 597, 604–05 (9th Cir. 2000). The officers, 

rather, merely saw and heard precisely what Esqueda 

contemplated they would see and hear when he consented to 

the officers’ entry and voluntarily engaged in an illicit 

firearms transaction in their presence. As relevant here, 

Esqueda voluntarily showed the buyers the firearm that he 

had and that was being sold. Under these circumstances, the

officers could plainly testify from memory as to the 

encounter with Esqueda. See Lopez, 373 U.S. at 438; Hoffa, 

385 U.S. at 302 (holding that “no interest legitimately 

protected by the Fourth Amendment is involved” where an

informant was physically present in the space “by invitation, 

and every conversation which he heard was either directed 

to him or knowingly carried on in his presence”).

Esqueda’s Fourth Amendment challenge, then, rests 

solely on the officers’ secret use of recording devices, which 

produced evidence that could be used to supplement the 

officers’ testimony. Esqueda, in other words, insists that the 

secret recording transformed the officers’ otherwise 

permissible physical entry into a Fourth Amendment search

under Jardines. We disagree. Unlike the physical presence 
USA V. ESQUEDA 15

of the officers on defendant’s curtilage in Jardines, the 

officers’ physical presence in Esqueda’s motel room was not 

by any means “unlicensed.” See Jardines, 569 U.S. at 7. In 

Jardines, the officers had no consent—either express or 

implied—to “snoop[] about [the homeowner’s] front porch.” 

Jardines, 569 U.S. at 9 n.3; see Lundin, 817 F.3d at 1158–

59 (holding that officers who approached the defendant’s 

front door for the purpose of arrest conducted a search under 

Jardines in part because the officers occupied the curtilage 

for a purpose other than a “knock and talk” and “the scope 

of the [knock and talk] exception is coterminous with this 

implicit license”); see also On Lee, 343 U.S. at 753 

(explaining that a trespass constitutes an unreasonable 

search if the officer gains entry “without any express or 

implied consent”). Here, by contrast, the officers had 

Esqueda’s express consent to enter the motel room for the 

specific purpose of engaging in the illicit firearms 

transaction that they recorded.4In turn, because the officers’ 

4 For this reason, Esqueda’s reliance on Whalen v. McMullen, 907 F.3d 

1139 (9th Cir. 2018) is misplaced. There, this Circuit held that an 

officer—who was not undercover—conducted a search under Jardines 

when he gained consent to enter the plaintiff’s home by requesting the 

plaintiff’s assistance in a fictitious investigation. Id. The officer was, in 

fact, investigating whether the plaintiff had committed social security 

fraud, and he secretly recorded the encounter while inside. Id. The panel 

held that a Fourth Amendment search occurred because the officer “did 

not have consent to be in the home for the purposes of his visit,” and “did 

not have consent—under any terms—to videotape Whalen or her home.” 

Id. at 1150–51. Whalen, however, limited its analysis to “ruse” entries—

where a known government agent affirmatively misrepresents his 

purpose to gain consent to enter—which it distinguished from 

“undercover” entries, where a government agent merely conceals his 

identity. Id. at 1147–48. In contrast to a ruse entry, an undercover entry 

does not violate the Fourth Amendment “as long as the undercover agent 

does not exceed the scope of his invitation while inside the home.” Id. at 
16 USA V. ESQUEDA

physical entry was expressly licensed and therefore itself 

permissible, see Hoffa, 385 U.S. at 302, the officers’ use of 

recording equipment once inside did not transform their 

physical presence into a Fourth Amendment search under 

Jardines. See Jardines, 569 U.S. at 9 n.4 (clarifying that the 

“mere ‘purpose of discovering information’ in the course of 

engaging in . . . permitted conduct does not cause it to 

violate the Fourth Amendment” (quoting id. at 22 (Alito, J., 

dissenting))). After all, Jardines is primarily concerned with 

the scope of an implicitly licensed physical intrusion. Id. at 

7, 11.

Moreover, before Katz—and therefore before the 

Supreme Court “deviated” from the property-based

approach that Esqueda relies on here, see Jones, 565 U.S. at 

405—the Supreme Court had twice held that a defendant has 

no Fourth Amendment right to object to reliable forms of 

evidence, like recordings, created by an undercover officer 

who is lawfully present in a space with express consent. See 

Lopez, 373 U.S. at 438–39; On Lee, 343 U.S. at 751–53. So 

long as the defendant invites the officer into the space, “no 

trespass [is] committed”—and thus no Fourth Amendment 

violation occurs—merely because the officer secretly 

records the ensuing consensual encounter when inside. See

On Lee, 343 U.S. at 751–52. 

For example, in Lopez, an internal revenue agent wearing 

a secret recording device met with the defendant in the 

1147 (citing Lewis, 385 U.S. at 211). Unlike in Whalen, where the 

consent to enter was given only to assist the officer in a fictitious, 

purportedly lawful investigation, the officers here had consent to enter 

the motel room for the purpose of engaging in an illicit purchase of a 

firearm—which is precisely what they did when inside. Whalen, 

therefore, is inapposite. 
USA V. ESQUEDA 17

defendant’s office and pretended to be receptive to a bribe. 

373 U.S. at 430–31. The defendant made incriminating 

statements, was indicted for attempted bribery, and the 

recording was introduced into evidence. Id. at 431–32. The 

defendant argued that the secret recording violated the 

Fourth Amendment because the agent had gained access to 

the “office by misrepresentation and all evidence obtained in 

the office i.e., his conversation with petitioner, was illegally 

‘seized.’” Id. at 437. 

The Supreme Court held that no Fourth Amendment 

violation had occurred. Id. at 439. The agent’s secret use of

recording equipment did not render the consensual

encounter a Fourth Amendment search, because “the 

electronic device [was] not . . . planted by an unlawful 

physical invasion of a constitutionally protected area.” Id. at 

438–39 (citing Silverman, 365 U.S. at 509–11). Instead, the 

device “was carried in and out by an agent who was there 

with petitioner’s assent, and it neither saw nor heard more 

than the agent himself.” Id. at 439. As the Court put it, the 

recording “device was used only to obtain the most reliable 

evidence possible of a conversation in which the 

Government’s own agent was a participant and which that 

agent was fully entitled to disclose.” Id. The Court’s 

reasoning was unequivocal:

Stripped to its essentials, petitioner’s 

argument amounts to saying that he has a 

constitutional right to rely on possible flaws 

in the agent’s memory, or to challenge the 

agent’s credibility without being beset by 

corroborating evidence that is not susceptible 

of impeachment. For no other argument can 

justify excluding an accurate version of a 
18 USA V. ESQUEDA

conversation that the agent could testify to 

from memory. We think the risk that 

petitioner took in offering a bribe to Davis 

fairly included the risk that the offer would 

be accurately reproduced in court, whether by 

faultless memory or mechanical recording.

Lopez, 373 U.S. at 439 (emphases added) (footnote omitted); 

see also On Lee, 343 U.S. at 754 (“It would be a dubious 

service to the genuine liberties protected by the Fourth 

Amendment to make them bedfellows with spurious liberties 

improvised by farfetched analogies which would liken 

eavesdropping on a conversation, with the connivance of one 

of the parties, to an unreasonable search or seizure.”).

Lopez and On Lee, which applied the same propertybased framework that Jardines applied, foreclose Esqueda’s 

Fourth Amendment challenge.

5

B.

Esqueda’s argument that Jardines supersedes On Lee 

and Lopez and creates a new framework for evaluating secret 

recordings in the context of undercover investigations is 

unconvincing. This Court is “bound to follow a controlling 

5 After Katz, the Supreme Court expressly reaffirmed On Lee and Lopez. 

See United States v. White, 401 U.S. 745, 749–53 (1971) (citing Lopez, 

373 U.S. at 438–39) (holding that no Fourth Amendment violation 

occurs when the government, without a search warrant, “sends to 

defendant’s home a secret agent who . . . unbeknown to the defendant, 

carries electronic equipment to record the defendant’s words and the 

evidence so gathered is later offered in evidence”). The Court in White 

again refused to hold that “a defendant who has no constitutional right to 

exclude the informer’s unaided testimony nevertheless has a Fourth 

Amendment privilege against a more accurate version of the events.” Id. 

at 753.
USA V. ESQUEDA 19

Supreme Court precedent until it is explicitly overruled by 

that Court.” United States v. Werle, 35 F.4th 1195, 1201 (9th 

Cir. 2022). As the Supreme Court has explained, moreover, 

“‘[i]f a precedent of this Court has direct application in a 

case’ . . . a lower court ‘should follow the case which 

directly controls, leaving to this Court the prerogative of 

overruling its own decisions.’” Mallory v. Norfolk S. Ry. Co., 

600 U.S. 122, 136 (2023) (quoting Rodriguez de Quijas v. 

Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989)). “This 

is true even if the lower court thinks the precedent is in 

tension with ‘some other line of decisions.’” Id. (quoting 

Rodriguez de Quijas, 490 U.S. at 484).

Here, the Supreme Court’s pre-Katz decisions in On Lee 

and Lopez directly apply and continue to control. As in 

Lopez, the device “was carried in and out by an agent who 

was there with petitioner’s assent, and it neither saw nor 

heard more than the agent himself.”6 See Lopez, 373 U.S. at 

439. Instead, “the device was used only to obtain the most 

reliable evidence possible of a conversation in which the 

Government’s own agent was a participant and which that 

agent was fully entitled to disclose.” See Lopez, 373 U.S. at 

439.

In turn, by consensually interacting with the officers in 

his motel room, Esqueda assumed “the risk that the 

[encounter] would be accurately reproduced in court, 

whether by faultless memory or mechanical recording.” See 

6 We note that the recording did not allow the government to see or hear 

any more than the officers could see and hear, with their natural senses,

by virtue of the consent they received to enter the motel room (e.g., 

Esqueda’s features, the inside of the motel room, and the firearm 

transaction). That makes this case indistinguishable from Lopez. See 373 

U.S. at 439.
20 USA V. ESQUEDA

Lopez, 373 U.S. at 439. Esqueda’s consent need not have 

explicitly extended to the officers’ secret recording, because 

a defendant does not have a “constitutional right to rely on 

possible flaws in the agent's memory, or to challenge the 

agent's credibility without being beset by corroborating 

evidence that is not susceptible of impeachment.” See id.

In fact, in rejecting the claim that an undercover officer’s 

secret recording of a consensual encounter violates the 

Fourth Amendment, Lopez and On Lee applied similar 

property-based concepts to those articulated in Jardines and 

Jones. Compare Lopez, 373 U.S. at 438–39 (reasoning that 

secretly recording a consensual encounter does not involve 

“an unlawful physical invasion of a constitutionally 

protected area”), and On Lee, 343 U.S. at 751, 753 (holding

that “no trespass was committed”), with Jardines, 569 U.S. 

at 7 (holding that a search occurs when the police engage in 

an “unlicensed physical intrusion” on a constitutionally 

protected area), and Jones, 565 U.S. at 406 (noting that the 

Fourth Amendment “embod[ies] a particular concern for 

government trespass”).7 Meanwhile, Jones cited On Lee

without questioning its holding. 565 U.S. at 410 (citing On 

7

Indeed, before Katz, this Circuit relied on the property-based principles 

articulated in On Lee and Lopez to reject Esqueda’s precise argument.

See, e.g., Todisco v. United States, 298 F.2d 208, 209–10 (9th Cir. 1961) 

(reasoning that whether secretly recording an encounter constitutes a 

Fourth Amendment search “is largely dependent upon whether entry 

upon the premises amounted to trespass,” and holding that the fact that 

it does not “is established by On Lee”); Carbo v. United States, 314 F.2d 

718, 738 (9th Cir. 1963) (applying Todisco to a secret recording in a hotel 

room); Jack v. United States, 387 F.2d 471, 472 (9th Cir. 1967) (“There 

is no merit in appellant’s contention ... that it was error to receive 

evidence of a conversation transmitted to a state narcotics agent by 

means of a Fargo device concealed on an informer . . . .” (citing Lopez, 

373 U.S. at 438–39; On Lee, 343 U.S. at 751)).
USA V. ESQUEDA 21

Lee, 343 U.S. at 751–52). Neither Jardines nor Jones, then—

both of which applied the property-based approach that 

governed in the era before Katz—disturb the clear principles 

articulated in On Lee and Lopez. 

In sum, Jardines—a “straightforward” case in which the 

Court applied the property-based test that governed when On 

Lee and Lopez were decided—did not effectuate a sea 

change in over seventy years of precedent concerning 

undercover investigations.8 See Jardines, 569 U.S. at 5.

Instead, On Lee and Lopez establish that an undercover 

officer who enters a space with express consent and secretly 

records only what he can see and hear does not conduct a 

trespass, an unlawful physical invasion, or otherwise engage 

in a search violative of the Fourth Amendment.

C.

Finally, Esqueda argues that On Lee and Lopez do not 

control because the secret recording was made in Esqueda’s 

living space—his motel room—whereas On Lee and Lopez 

involved secret recordings in a business. That argument also 

fails. Although “the home is the first among equals” when it 

comes to the Fourth Amendment, Jardines, 569 U.S. at 6, 

the nature of the constitutionally protected area does not 

affect our analysis of the unlicensed physical intrusion test 

8 We recognize that On Lee and Lopez did not expressly evaluate the 

“habits of the country” with respect to secret recording in undercover 

investigations, a fact which Jardines suggests is relevant to the Fourth 

Amendment search inquiry in certain cases. See Jardines, 569 U.S. at 8. 

But even assuming that there is tension between Jardines, On Lee, and 

Lopez, our duty as an inferior court is to follow the cases with direct 

application—here, On Lee and Lopez—until the Supreme Court says 

otherwise. See Mallory, 600 U.S. at 136; Werle, 35 F.4th at 1201.
22 USA V. ESQUEDA

when the officers have an express license physically to enter

it.

IV.

Our holding today is a limited one. We express no view 

as to whether an undercover agent’s use of other, more 

advanced technologies during a consensual encounter—such 

as those that might allow the government to detect more than 

the agent’s natural senses could detect—might constitute a 

Fourth Amendment search. But where, as here, an officer 

enters a premises with express consent, and secretly uses 

recording equipment to capture only what he can see and 

hear by virtue of that consented entry, no Fourth Amendment 

search occurs under the trespassory, unlicensed physical 

intrusion framework as articulated in Jones and Jardines.

9

We therefore affirm the district court’s decision which 

denied Esqueda’s motion to suppress the video evidence and 

any evidence derived from the video recording.

AFFIRMED.

9 Our holding is in accord with the Seventh Circuit, the only other Circuit

to consider whether an undercover officer who secretly records a 

consensual encounter in a defendant’s living space violates the Fourth 

Amendment under Jardines. See United States v. Thompson, 811 F.3d 

944, 948–49 (7th Cir. 2016) (“That the informant recorded his 

observations on video did not transform the consensual encounter into a 

search for purposes of the Fourth Amendment.”).