After subject requested to remain silent officer improperly asked for passcode to phone


On February 28, 2021, Border Patrol Agent Ryland Brown pulled over a black Chevy Equinox on suspicion of possible alien smuggling due to indicators such as mud and handprints, a low suspension, obstructions in the vehicle, and its high rate of speed. Upon stopping the vehicle he saw Lisandro Guia-Lopez as the driver, codefendant Yesenia Romero in the front passenger seat, and six passengers in the passenger and cargo areas. Agent Brown believed that the six individuals in the backseat and cargo area had illegally crossed the border because they were wet, muddy, nervous, sweating, and unable to provide documentation as to their legal status.

Homeland Security Investigations Agent Anthony Golando interviewed Romero and Guia-Lopez after they were arrested. Romero waived her Miranda rights and provided her account of what transpired and Guia-Lopez’s involvement. Guia-Lopez refused to execute the waiver of rights form and stated he did not wish to speak with Agent Golando. Shortly thereafter, Agent Golando asked Guia-Lopez if he would consent to a search of his cellphone. Guia-Lopez read and signed a consent form to search his cellphone and wrote his cellphone password at the top of the form.

The district court conducted a hearing on Guia-Lopez’s motion to suppress the passcode and contents of his cellphone. After finding Guia-Lopez’s Fifth Amendment invocation of the right to remain silent had not been fully honored, the district court granted Guia-Lopez’s motion in part by suppressing the passcode that Guia-Lopez had given to Agent Golando. The district court, however, denied the portion of Guia-Lopez’s motion requesting the suppression of Guia-Lopez’s consent and the messages found on the cellphone. The 5th affirmed.


Guia-Lopez’s negative response to Agent Golando’s invitation to talk was a sufficient invocation of his right to remain silent. See SCOTUS Berghuis v. Thompkins, 560 U.S. 370 (2010) (stating that simple, unambiguous statements such as an individual stating that he did not want to talk with the police are sufficient to invoke the right to cut off questioning). Accordingly, the questioning of Guia-Lopez should have ceased. See Miranda v. Arizona, 384 U.S. 436 (1996).

Because Guia-Lopez invoked his right to remain silent, whether his statements should be suppressed turns on whether the police scrupulously honored his right to cut off questioning. To determine whether this right was scrupulously honored, the Court considers the specific facts of each case, including

(1) whether the suspect was advised prior to initial interrogation that he was under no obligation to answer questions; (2) whether the suspect was advised of his right to remain silent prior to the re-interrogation; (3) the length of time between the two interrogations; (4) whether the second interrogation was restricted to a crime that had not been the subject of earlier interrogation; and (5) whether the suspect’s first invocation of rights was honored. See Gutierrez.

The district court correctly applied the law to the facts to find that Guia-Lopez’s right to remain silent was not scrupulously honored. An interrogation comprises words or actions by the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. See SCOTUS Rhode Island v. Innis, 446 U.S. 291 (1980). Here, the “responses” sought by Agent Golando during the continued questioning were (1) Guia-Lopez’s consent to search and (2) the password.

Guia-Lopez asserts that asking for consent to search his cellphone comprised an interrogation because Agent Golando knew there would be incriminating information on Guia-Lopez’s cellphone. But we have repeatedly determined asking for consent to search a mobile phone does not seek testimonial evidence as defined by the Fifth Amendment. See Venegas. Accordingly, the district court appropriately denied Guia-Lopez’s motion to suppress Guia-Lopez’s consent.

Using the same reasoning, the district court was correct to suppress the passcode because asking Guia-Lopez to write down his password was a Fifth Amendment violation because this request was likely to, and did, result in testimonial evidence that implicitly showed Guia-Lopez’s ownership of the phone.

When a constitutional violation occurs, the exclusionary rule reaches not only the evidence uncovered as a direct result of the violation, but also evidence indirectly derived from it —so-called fruit of the poisonous tree. But the exclusionary rule applies only where its deterrence benefits outweigh its substantial social costs. See SCOTUS Utah v. Strieff, 579 U.S. 232 (2016). Thus, the exclusionary rule considers the reliability of the evidence, whether the evidence was obtained from severe pressures, and whether suppression is an appropriate sanction.

Here, the deterrence benefits would not outweigh the substantial social costs of suppressing the text messages. The district court correctly found the text messages admissible despite the Fifth Amendment violation because Guia-Lopez provided his consent and passcode based on his free and rational choice and not because of offensive coercive tactics. Even though Agent Golando violated Guia-Lopez’s Fifth Amendment right, Agent Golando mitigated any coercion present from that violation by offering renewed warnings about Guia-Lopez’s right to consent. As discussed, the trustworthiness of the content of these messages is not in question because the text messages were not the result of government coercion. Accordingly, suppressing these text messages does not serve a valid or useful purpose.

Moreover, knowledge of and access to these text messages was not an exploitation of the alleged constitutional violations. At the time of the alleged constitutional violations, Agent Golando had already found Guia-Lopez’s cellphone and interviewed Romero. Guia-Lopez admits Agent Golando knew that there would be incriminating information on Guia-Lopez’s phone before he interviewed Guia-Lopez. In addition, the Government proffered evidence that even if it had not obtained the password, it would have discovered these text messages inevitably using “GrayKey” or “Cellebrite.” See SCOTUS Nix v. Williams, 467 U.S. 431 (1984).

Accordingly, exclusion of these text messages, which Agent Golando knew about from an independent source and would have eventually been discovered, would have added nothing to either the integrity or fairness of Guia-Lopez’s criminal trial.

Accordingly, the district court did not err in admitting the contents of the text messages.