United States v. Christopher Esqueda

FOR PUBLICATION

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 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.4 In 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 property-
based 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.”).