top of page
  • Jim Chapman

The Ninth Circuit holds that secret police recording of a gun purchase in a motel room did not constitute a search under the Fourth Amendment.

Author: Jim Chapman


In United States v. Esqueda, 88 F.4th 818 (9th Cir. 2023), Defendant-Appellant Christopher Esqueda pled guilty to possessing a firearm as a felon in violation of federal law. However, Esqueda conditioned his guilty plea on his ability to appeal the United States District Court for the Central District of California’s denial of his motion to suppress to the United States Court of Appeals for the Ninth Circuit.


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 argued that the officers’ secret recording of the encounter exceeded the scope of the “implied license” that he granted when he consented to the officers’ physical entry. Esqueda claimed that the officers conducted a search that violated his Fourth Amendment rights under the United States Supreme Court’s trespassory, unlicensed physical intrusion test outlined in Florida v. Jardines, 569 U.S. 1 (2013), and in United States v. Jones, 565 U.S. 400 (2012). The District Court denied Esqueda’s motion to suppress the audio-video evidence and any evidence derived from the video recording, finding that no Fourth Amendment search had occurred. Esqueda, then, pled guilty and appealed the District Court’s denial of his motion to suppress to the Ninth Circuit.


The Ninth Circuit began its consideration of Esqueda’s appeal by noting that, 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. The Ninth Circuit further noted that it was undisputed that Esqueda’s motel room was a Constitutionally protected area that was entitled to the Fourth Amendment’s protections. However, the Ninth Circuit cautioned that, if the police’s conduct does not amount to a search or seizure, the Fourth Amendment does not regulate that conduct.


Furthermore, the Ninth Circuit stated that the Supreme Court has held that a Fourth Amendment search can occur in one of two ways. First, under the so-called Katz test, a search occurs when the Government violates a subjective expectation of privacy that society recognizes as reasonable. Second, under the “unlicensed physical intrusion” test, a search occurs when the Government physically occupies private property for the purpose of obtaining information to engage in conduct not explicitly or implicitly permitted by the property owner. Each test is independently sufficient to determine whether the Government’s conduct amounts to a Fourth Amendment search. In other words, 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.


Here, Esqueda acknowledged that his argument could not succeed under the Katz test. Instead, Esqueda argued that the officers’ conduct constituted an unlicensed physical intrusion in violation of his Fourth Amendment rights.


The Supreme Court has described the unlicensed physical intrusion test as follows: 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 within the original meaning of the Fourth Amendment has undoubtedly occurred.


Esqueda argued that the District Court and the Ninth Circuit must evaluate the undercover officers’ conduct under the Fourth Amendment’s property framework. Esqueda claimed 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. In turn, the officers conducted a search violative of Esqueda’s Fourth Amendment rights under Supreme Court precedent and the Fourth Amendment’s property test.


But the Ninth Circuit was not persuaded by Esqueda’s arguments. As an initial matter, the Ninth Circuited noted that Esqueda did 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. There was 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, surreptitiously enter any part of the motel room without consent, or leave the recording devices inside the room after they departed. Rather, the officers merely saw and heard precisely what Esqueda contemplated that they would see and hear when he consented to the officers’ entry and voluntarily engaged in an illicit firearms transaction in their presence.


As a result, Esqueda’s Fourth Amendment challenge rested solely on the officers’ secret use of recording devices, which produced evidence that could be used to supplement the officers’ testimony. Esqueda contended that the secret recording transformed the officers’ otherwise permissible physical entry into a Fourth Amendment search. The Ninth Circuit disagreed because, unlike the physical presence of the officers on defendant’s curtilage in the Supreme Court’s Jardines case, the officers’ physical presence in Esqueda’s motel room was not by any means “unlicensed.” In Jardines, the officers had no consent—either express or implied—to snoop about the homeowner’s front porch. 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. Because the  officers’ physical entry was expressly licensed and was, therefore, itself permissible, the Ninth Circuit concluded that the officers’ use of recording equipment once inside did not transform their physical presence into a Fourth Amendment search.


Finally, the Ninth Circuit opined that 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. So long as the defendant invites the officer into the space, no trespass is committed, and no Fourth Amendment violation occurs merely because the officer secretly records the ensuing consensual encounter when inside. In sum, the Ninth Circuit held 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.


That being said, the Ninth Circuit noted that the Court’s holding was a limited one. The Ninth Circuit expressed no view or opinion 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. Nevertheless, 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, the Ninth Circuit found that no Fourth Amendment search had occurred under the trespassory, unlicensed physical intrusion framework as articulated by the Supreme Court. Therefore, the Ninth Circuit affirmed the District Court’s decision, which denied Esqueda’s motion to suppress the video evidence and any evidence derived from the video recording.

83 views0 comments


bottom of page