by Anthony Accurso

The U.S. Court of Appeals for the Ninth Circuit held that the insertion of a car key into a lock of a vehicle’s door by police solely for the purpose of determining its ownership constitutes a search under the Fourth Amendment.

In January 2018, San Francisco Police Officer Edward Ochoa began surveilling Howard Dixon for suspicion of drug-related crimes. On March 9, 2018, Ochoa learned Dixon was on supervised release and subject to “a search of his person, residence, office, vehicle, or any property under his control ... at any time with or without suspicion.”

Ochoa would later testify that he observed Dixon enter and exit a building at the Oakdale Apartments in Bayview. Ochoa said Dixon exited the building carrying two trash bags and walked toward one of two blue minivans in the parking lot at the time.

Officers moved to detain Dixon, whereupon he dropped the bags of trash and a set of keys. Officers accessed the apartment, where they found various illegal drugs. According to body-cam footage, officers then attempted to use Dixon’s keys to access one of the blue minivans, but its owner came out and objected. Officers then tried the other minivan, the key fit, and they located a backpack full of marijuana. Based on the drugs recovered in the apartment and the minivan, Dixon was arrested and more contraband drugs were found on his person.

Dixon admitted to the charge of possession of illegal drugs, but he contested possessing them with the intent to distribute. He also filed a motion to suppress the evidence found in the apartment, vehicle, and on his person.

Without holding an evidentiary hearing, the U.S. District Court for the Northern District of California suppressed the drugs found in the apartment because Ochoa had no confirmation that it was Dixon’s residence and “Ochoa’s observations amounted to information suggesting only Dixon’s presence, but not his residence, there.” Without evidence Dixon controlled the apartment, officers needed a warrant to search the apartment.

But the district court denied suppression of the vehicle’s contents on the grounds that using the key to verify Dixon’s control of the vehicle was not itself a search for Fourth Amendment purposes pursuant to United States v. $109,179 in U.S. Currency, 228 F.3d 1080 (9th Cir. 2000) (“inserting the key into the car door lock for the purpose of identifying [the claimant]” was not a Fourth Amendment search).

The district court later excluded from evidence at trial the marijuana found in the minivan because it had been improperly mixed with the marijuana recovered from the apartment. However, because the search of the minivan resulted in officers finding marijuana, the district court denied suppressing the search of Dixon’s person resulting from his arrest since his arrest was justified.

Dixon was convicted on the possession charge, acquitted on the charge of possession with intent to distribute, and was sentenced to 21 months’ imprisonment. He appealed, contesting the district court’s reliance on Currency was contrary to U.S. Supreme Court decisions since Currency was decided.

The Court observed that the Fourth Amendment to the U.S. Constitution protects citizens from “unreasonable searches and seizures,” which means that, with limited exceptions not applicable here, officers must first obtain a warrant to conduct a search. However, parolees who are “subject to a warrantless, suspicionless search condition have ‘severely diminished expectations of privacy by virtue of their status alone.’” Quoting United States v. Cervantes, 859 F.3d 1175 (9th Cir. 2017).

But such expanded authority to search is not limitless. United States v. Korte, 918 F.3d 750 (9th Cir. 2019). Before conducting a search of a parolee’s home or vehicle, the parolee must “exhibit a sufficiently strong ‘control’ over it.” United States v. Grandberry, 730 F.3d 968 (9th Cir. 2013). Therefore, before authorities could search the vehicle, officers had to have probable cause to believe Dixon controlled it.

The Court explained that its holding in Currency “rested solely on an owner’s reasonable expectation of privacy in his vehicle.” However, subsequently, the Supreme Court issued a reminder in United States v. Jones, 565 U.S. 400 (2012) (officers placing a GPS device on the exterior of a Jeep constitutes a search because “by attaching the device to the Jeep, officers encroached on a protected area”) and again in Florida v. Jardines, 561 U.S. 1 (2013) (intruding on a home’s curtilage constitutes a search), “that the Fourth Amendment protects not only reasonable expectations of privacy, but also against physical intrusions by law enforcement onto property.”

In light of Jones and Jardines’ reiteration that property-based Fourth Amendment analysis persists, the Court announced: “we must conclude that 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.” As such, the Court overturned Currency to the extent it ruled that no search had occurred. 

Applying Jones and Jardines, the Court determined that when officers placed the key into the minivan’s lock, they “intruded on a constitutionally protected area.” Further, it was “for the express purpose of obtaining information, specifically to learn whether Dixon exercised control of the minivan.”

Regarding whether this search was reasonable, the Court cited Motley v. Parks, 432 F.3d 1072 (9th Cir. 2005) (“a condition of parole that permits warrantless search provides officers with the limited authority to enter and search a house where the parolee resides ... [b]ut they have to be reasonably sure that they are at the right house”). This policy protects third parties against unreasonable searches carried out on no other grounds than being under suspicion of association with the parolee.

Thus, because this “degree of knowledge” is a “precondition for a search pursuant to a parole condition,” Grandberry, and there was nothing reliable in the record that officers knew which vehicle belonged to Dixon, the “search” was unreasonable, the Court concluded.

Accordingly, the Court conditionally vacated Dixon’s conviction and remanded the case to the district court to hold an evidentiary hearing for the purpose of determining whether Ochoa had probable cause to know which vehicle Dixon controlled prior to inserting the key into the minivan’s lock. See: United States v. Dixon, 984 F.3d 814 (9th Cir. 2020).

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