Fourth Amendment Searches of Vehicles

Using a Key in a Vehicle as a Fourth Amendment Search

Fourth Waiver Searches and the Probable Cause Requirement

A Fourth Amendment search occurs when a law enforcement officer physically inserts a key into the lock of a vehicle for the purpose of determining a suspect’s ownership of, or control over, that vehicle.  Absent probable cause, such a search is unlawful.  Before officers may conduct a warrantless search of a vehicle pursuant to a Fourth waiver condition, they must first have probable cause to believe that the defendant owns or controls the vehicle to be searched.

Defendant Howard Dixon—a convicted felon on federal “supervised release” with a Fourth waiver—was suspected by the San Francisco Police Department of being involved in an earlier shooting.  SFPD Officer Edward Ochoa began surveilling defendant in January, 2018, observing him as he drove around a particular neighborhood near the Oakdale Apartments in several different vehicles—a black BMW and a blue Honda minivan—on different occasions.  Although defendant reported to his federal probation officer that he lived at the Oakdale Apartments, Officer Ochoa was unaware of this, inexplicably failing to check with defendant’s P.O.  Other databases Ochoa did check listed other possible addresses for where he might be living.  On March 9th, Officer Ochoa observed defendant at the Oakdale Apartments, exiting the building, reentering it, and then exiting it again; this time carrying two garbage bags and walking towards the Blue Honda minivan he’d been observed driving on prior occasions.  Defendant was stopped and detained, prompting him to drop the garbage bags along with a set of keys.  Using these keys, Officer Ochoa entered the apartment from where defendant had come.  In the apartment was discovered illegal drugs and paraphernalia.  Using the same keys, Officer Ochoa unlocked the Honda and searched it, finding a large bag of marijuana in a backpack.  Defendant was transported to SFPD’s Bayview Station where he was searched.  Twenty-one baggies containing cocaine, heroin, and methamphetamine were recovered from his person.  Indicted in federal court for possession with the intent to distribute heroin, cocaine, and methamphetamine, defendant filed a motion to suppress with written declarations in support of his arguments.  The Government filed declarations in response. The federal district court judge ruled on the suppression motion without conducting an evidentiary hearing, relying solely on the opposing declarations.  In defendant’s declaration, he noted that there were two “sky blue” minivans parked side-by-side at the scene of his arrest—a fact that was confirmed by an officer’s body camera—and that the officers first used the keys in an unsuccessful attempt to open one of the minivans that, as it turned out, belonged to someone else.  The district court judge granted defendant’s motion as to the search of the apartment, ruling that Officer Ochoa did not have the necessary “probable cause” (see Note, below) to believe defendant lived there (which, by the way, would not have been an issue had Officer Ochoa checked with defendant’s probation officer first).  The judge denied defendant’s motion as to the search of the Honda, however, reasoning that under the Ninth Circuit’s prior decision in United States v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3rd 1080, the law was that the insertion of the key into the minivan’s lock was not itself a search, and that possession of a key that fit the minivan’s lock amounted to probable cause to believe that defendant exercised control over that minivan.  The trial court further held that this “intervening” lawful search of the Honda minivan, producing a large bag of marijuana, attenuated any taint from the apartment search, and therefore declined to suppress the evidence found on defendant’s person when he was searched at the station.  At trial, somehow the large bag of marijuana found in the Honda got mixed up with the suppressed evidence from the apartment, necessitating the exclusion of that evidence as well.  The jury subsequently hung on the “intent to distribute” charges, convicting defendant only on the lesser included offense of simple possession.  Sentenced to a year and 9 months in prison, defendant appealed.

The Ninth Circuit Court of Appeal reversed.  Recognizing that defendant was on federal supervised release, a condition of which was that he “submit to a search of his person, residence, office, vehicle, or any property under his control . . . at any time with or without suspicion,” the Court noted that this was not the end of the inquiry.  “(T)his authority is not limitless.”  In addition to having waived his right to warrantless searches “with or without suspicion, . . . the individual subject to (such a condition) must ‘exhibit a sufficiently strong connection to [the property in question] to demonstrate “control” over it.’”  As the trial judge had ruled relative to the apartment, the Government is required to prove by a preponderance of the evidence that the officers had “probable cause” to believe that the Honda minivan belonged to defendant, or at least that he had control over it.  The trial court ruled that sticking defendant’s key into the Honda’s door lock, and finding that it did in deed unlock the door, supplied that necessary probable cause.  United States v. $109,179 in U.S. Currency, supra, does in fact so hold.  However, since the case of $109,179 in U.S. Currency was decided, the U.S. Supreme Court has broadened the grounds for arguing a Fourth Amendment violation from simply having one’s “expectation of privacy” violated, to also including “physical intrusions” onto one’s property; i.e., a “trespassory search.” (See United States v. Jones (2012) 565 U.S. 400, 404-405; and Florida v. Jardines (2013) 569 U.S. 1.)  The Ninth Circuit ruled here that applying Jones’s “property-based analysis,” a Fourth Amendment search occurs when an officer physically inserts a key into the lock of a vehicle for the purpose of obtaining information, as occurred here.  The “information obtained” in this case was whether the Honda was defendant’s or not.  As with the apartment search, the Government must prove that prior to the search at issue (i.e., the insertion of the key into the door lock), and despite defendant’s prior waiver of his search and seizure rights (i.e., the Fourth waiver”), the officers had “probable cause” to believe that the Honda was either defendant’s car, or that he at least had control over it.  This issue was not decided by the trial court, the matter having been decided based upon written declarations only.   Therefore, the case was remanded back to the trial court with instructions to hold an evidentiary hearing (i.e., with live testimony) for the purpose of deciding whether, prior to Officer Ochoa inserting the key into the Honda’s door lock, the officers had sufficient information to establish probable cause to believe that the Honda belonged to defendant, or that he had control over it.

California case authority differs from this decision in at least two respects.  First, California cases have held that even though sticking a key into a door lock is in fact a search, it is so minimally intrusive that it is not a Fourth Amendment violation to do so.  See, for instance, People v. Robinson (2012) 208 Cal.App.4th 232, 246-255; “The minimal intrusion exception to the warrant requirement rests on the conclusion that in a very narrow class of ‘searches’ the privacy interests implicated are ‘so small that the officers do not need probable cause; for the search to be reasonable.’”  (See also United States v. Concepcion (7th Cir. 1991) 942 F.2nd 1170, 1172.)  On whether there is such a thing as a “Minimal Intrusion Doctrine,” it must be noted here that the Ninth Circuit cheats a bit in holding that United States v. $109,179 in U.S. Currency stands for the proposition that sticking a key into a door lock is not a search, taking its quote for that proposition out of context.  Looking at the quote from the case of $109,179 in U.S. Currency that the Ninth Circuit uses here, the Court quoted the decision (at pg. 1088) as saying “that ‘inserting the key into the car door lock for the purpose of identifying [the claimant]’ was not a Fourth Amendment search.”  What the Court really said in $109,179 in U.S. Currency was that it was not an “unreasonable search.” In other words, the Court did not say that it wasn’t a search at all, but only that as a search, it was not “unreasonable.”  Taking in context, the holding in $109,179 in U.S. Currency appears to be consistent with California’s Minimal Intrusion Doctrine.  Nowhere in the Dixon case here does the Court even mention the Minimal Intrusion Doctrine.  Secondly, it is true that the Ninth Circuit’s prior decisions have held that you need “probable cause” to believe the place to be searched belongs to the defendant, or at least that he has control over it. (E.g. see Motley v. Parks (9th Cir. 2005) 432 F.3rd 1072, 1080-1082.)  “Probable cause” is how the Ninth Circuit defines the U.S. Supreme Court’s use of the phrase “reason to believe,” or “reasonable belief.”  (E.g., see Payton v. New York (1980) 445 U.S. 573.)  California, on the other hand, has held in at least one case that only a “reasonable suspicion” is required.  (People v. Downey (2011) 198 Cal.App.4th 652, 657-662; noting that at least five other federal circuits have ruled that something less than probable cause is required, and that the Ninth Circuit is a minority opinion on this issue.)  But until this difference of opinion is revolved by the U.S. Supreme Court, you will be held to the higher standard of proof should your case be filed in federal court as opposed to state court.