UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50170

Plaintiff-Appellee, D.C. No. 8:20-cr-00155- v. JFW-2 CHRISTOPHER MARCEL ESQUEDA, OPINION

Defendant-Appellant.

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 Plaintiff- Appellee. 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 all