Undercover officers and their recording devices may lawfully enter a residence so long as the purpose of the entry is not misrepresented. 

• Warrantless entry into a residence by undercover officers 
• Surreptitious recordings by undercover officers 
• Fourth Amendment searches per Katz v. United States 
• Fourth Amendment searches per Florida v. Jardines  

A Fourth Amendment search is illegal under two legal theories: 

(1) where a suspect’s subjective expectation of privacy that society recognizes as reasonable is violated  

(2) when the government physically occupies private property for the purpose of obtaining information while engaging in conduct not explicitly or implicitly permitted by the property owner. 

Undercover Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents, working with the Costa Mesa Police Department and a confidential informant, purchased methamphetamine and firearms from Daniel Alvarado. The transaction took place in room 352 of the Valencia Inn Motel in Anaheim, California, on Jan. 9, 2020. Subsequently, the ATF and CMPD officers—still undercover—made arrangements to buy more meth on Jan. 22. Alvarado, however, directed the officers this time to come to Room 302 of the same motel. It was soon determined that room 302 was rented by defendant Christopher Esqueda, who had already paid for a three-week stay.  

Upon officers’ arrival, Alvarado opened the door and allowed the undercover officers to enter, where he introduced them to Esqueda. Unbeknownst to either Alvarado or Esqueda, the officers were surreptitiously wearing audio-video recording devices that captured the interactions in the motel room. After dealing with Alvarado for the purchase of the meth, the officers asked about firearms, specifically mentioning a “Derringer” Alvarado had earlier told the officers he had. At Alvarado’s direction, Esqueda produced the Derringer—subsequently determined to be a .22- caliber revolver—and handed it to an ATF agent, warning the agent that it was loaded. The ATF agent gave Alvarado $400 for the firearm.  

The officers then left the room, still wearing their recording devices. Esqueda was indicted by a federal grand jury under 18 U.S.C. §922(g)(1) for being a felon in possession of a firearm. (Alvarado is not a part of this prosecution.) Esqueda pled guilty after his motion to suppress was denied. Sentenced to two years in prison (plus three years of supervised release), Esqueda appealed. 

The Ninth Circuit Court of Appeal affirmed.  

On appeal, Esqueda argued that the undercover agents’ warrantless surreptitious use of audio-video recording devices in his motel room was an illegal search and as such, violated the Fourth Amendment and that the results should have been suppressed by the trial court. The issue, therefore, was whether the use of these recording devices amounted to a search or seizure which—accomplished without a search warrant—was illegal.  

The court ruled that it was not illegal, upholding the ruling of the trial court when it denied Esqueda’s motion to suppress the resulting audio-video evidence.  

Over the years, the U.S. Supreme Court has determined that a “search” may occur in one of two ways. Initially, the court established what is now known simply as the “Katz test.” Pursuant to this theory, “a search occurs when the ‘government violates a subjective expectation of privacy that society recognizes as reasonable.’” (Kyllo v. United States (2001) 533 U.S. 27, 33; citing Katz v. United States (1967) 389 U.S. 347, 361.) Forty-five years later, the Supreme Court announced a new rule, often referred to as the “unlicensed physical intrusion test.” By this test, an illegal search occurs when the government “physically occupie[s] private property for the purpose of obtaining information,” while “‘engag(ing) in conduct not explicitly or implicitly permitted’ by the property owner.” (United States v. Jones (2012) 565 U.S. 400, 404; Florida v. Jardines (2013) 569 U.S. 1, 6.)  

The Supreme Court has also referred to this second test as the “common-law trespassory test” under the theory that the Fourth Amendment “embod[ies] a particular concern for government trespass” on constitutionally protected areas. (Jones, at 406.) (I’m going to refer to this as simply the “Jones/Jardines” test, for obvious reasons.)  

Esqueda conceded that the “Katz test” did not provide him with any relief – that the agents did not violate his “subjective expectation of privacy that society recognizes as reasonable” when they entered his motel room with audio-video devices recording what occurred. This concession was likely brought about by the Ninth Circuit having previously 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.” (United States v. Wahchumwah (9th Cir. 2013) 710 F.3rd 862, 868.)  

But that doesn’t mean the Jones/Jardines test doesn’t apply. In both Jones and Jardines, the Supreme Court held that “(w)hen the government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the has undoubtedly occurred.”  (pgs. 406, fn.3, and 5, respectively.)  Absent a warrant, such a search is illegal.  This “property based approach” actually existed prior to Katz, it being based upon the common law.  Also, the Court here notes that Katz was not intended to do away with this property based theory, but merely supplement it.  For these reasons, the Court rejected defendant’s arguments that Jones/Jardines was something new, and was intended to replace the Katz theory.  To the contrary, both theories apply, each intending to supplement the other.  Thus: “(T)he Fourth Amendment protects not only reasonable expectations of privacy, but also against (warrantless) physical intrusions by law enforcement onto property.”  But either way, defendant argued that when the agents entered his motel room with functioning audio-video devices recording what occurred therein, they “exceeding the scope of their license to enter the motel room,” violating his Fourth Amendment rights under Jones/Jardines.  The Court disagreed. In making his argument, defendant relied primarily upon the facts in Florida v. Jardines.  In Jardines, the Supreme Court held that when officers brought a drug-sniffing dog onto the front porch of a home for the purpose of investigating drug trafficking, that to do so was an “unlicensed physical intrusion,” and therefore a Fourth Amendment search.  A Fourth Amendment search had occurred, says that Supreme Court, because the officers gathered information “by physically entering and occupying the [curtilage of the defendant’s home] (for the purpose of) engag(ing) in conduct not explicitly or implicitly permitted by the homeowner.” Although there existed an implied license to approach the door and knock because “that is no more than any private citizen might do,” when the officers used a trained drug dog “in the hopes of discovering incriminating information,” that’s another issue.  “There is no customary invitation to do that.”  Defendant’s argument in the instant case was that by coming into his motel room surreptitiously recording everything that occurred without defendant’s knowledge or permission, the agents did the same thing that the officers in Jardines did.  Per the defendant: “(T)he 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.”  The Court disagreed.  Defendant conceded that there is no Fourth Amendment search merely because the agents concealed their true identities for the purpose of obtaining consent to enter the motel room in the investigation of illicit conduct.  The U.S. Supreme Court has long since upheld such surreptitious residential entries.  (Lewis v. United States (1966) 385 U.S. 206, 211.)  “‘(N)o 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.’”  (Hoffa v. United States (1966) 385 U.S. 293, 302.)  Once inside, the agents (using recording devices they brought in with them as opposed to having planted them during a previous illegal entry) then recorded only what they personally could see and hear.  The U.S. Supreme Court has held that a defendant has no Fourth Amendment right to object to such reliable forms of evidence, like recordings, created by an undercover officer who is lawfully present in a space with express consent. (See Lopez v. United States (1963) 373 U.S. 427, at 438-439; and On Lee v. United States (1952) 343 U.S. 747, 751-753.)  In this case, the agents had defendant’s (and Alvarado’s) express consent to enter the motel room for the specific purpose of engaging in the illicit drug and firearms transactions.  The recordings of those transactions provided the most accurate, reliable source of information as to what occurred and what was said.  There is no Fourth Amendment search implicated by these circumstances.  Defendant’s motion to suppress was correctly denied by the trial court.Fourth Amendment has undoubtedly occurred.” (pgs. 406, fn.3, and 5, respectively.) Absent a warrant, such a search is illegal. This “property-based approach” actually existed prior to Katz, since it was based on common law.  

Also, the court here notes that Katz was not intended to do away with this property-based theory, but merely supplement it. For these reasons, the court rejected Esqueda’s arguments that Jones/Jardines was something new and was intended to replace the Katz theory. To the contrary, both theories apply, each intending to supplement the other. Thus: “(T)he Fourth Amendment protects not only reasonable expectations of privacy, but also against (warrantless) physical intrusions by law enforcement onto property.”  

Either way, Esqueda argued that when the agents entered his motel room with functioning audio-video devices recording what occurred, they “exceeding the scope of their license to enter the motel room,” violating his Fourth Amendment rights under Jones/Jardines. The court disagreed. In making his argument, Esqueda relied primarily upon the facts in Florida v. Jardines. In Jardines, the Supreme Court held that when officers brought a drug-sniffing dog onto the front porch of a home for the purpose of investigating drug trafficking, it was an “unlicensed physical intrusion,” and therefore a Fourth Amendment search. A Fourth Amendment search occurred, says that Supreme Court, because the officers gathered information “by physically entering and occupying the [curtilage of the defendant’s home] (for the purpose of) engag(ing) in conduct not explicitly or implicitly permitted by the homeowner.”  

Although there existed an implied license to approach the door and knock because “that is no more than any private citizen might do,” when the officers used a trained drug dog “in the hopes of discovering incriminating information,” that’s another issue. “There is no customary invitation to do that,” the ruling said. 

Esqueda’s argument in the instant case was that by coming into his motel room recording what occurred without his knowledge or permission, the agents did the same thing that the officers in Jardines did. Per the defendant: “(T)he 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.” The court disagreed. Esqueda conceded that there was no Fourth Amendment search merely because the agents concealed their true identities for the purpose of obtaining consent to enter the motel room in the investigation of illicit conduct. The U.S. Supreme Court has long since upheld such surreptitious residential entries. (Lewis v. United States (1966) 385 U.S. 206, 211.) “‘(N)o 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.’” (Hoffa v. United States (1966) 385 U.S. 293, 302.)  

Once inside, the agents, using recording devices they brought in as opposed to having planted them during a previous illegal entry, recorded only what they could see and hear. The U.S. Supreme Court has held that a defendant has no Fourth Amendment right to object to such reliable forms of evidence, like recordings, created by an undercover officer who is lawfully present in a space with express consent. (See Lopez v. United States (1963) 373 U.S. 427, at 438-439; and On Lee v. United States (1952) 343 U.S. 747, 751-753.)  

In this case, the agents had Esqueda’s (and Alvarado’s) express consent to enter the motel room for the specific purpose of engaging in the drug and firearms transactions. The recordings of those transactions provided the most accurate, reliable source of information as to what occurred and what was said. There is no Fourth Amendment search implicated by these circumstances. Esqueda’s motion to suppress was correctly denied by the trial court. 

We’ve been aware of Katz and Jardines for a long time. But this is the first case I’ve seen that explains the history behind these decisions and the relationship between these two legal theories, and how they work together under the Fourth Amendment.  

The law on warrantless undercover, surreptitious residential entries and recordings is important to know and understand. The court placed particular emphasis on the difference between what the officers did here and surreptitious uninvited entries, such as when officers secretly place recording devices inside a residence, a practice that requires a search warrant.  

The court also noted that doing the exact opposite of what was done here—such as identifying yourself as a cop but while misrepresenting the purpose of gaining entry into a suspect’s  residence by claiming to need assistance in some fictitious investigation—is a Fourth Amendment violation. (See fn. 4, and Whalen v. McMullen (9th Cir. 2018) 907 F.3rd 1139.)  

This may sound like splitting hairs, or even backwards, but these are the rules.