CA8: Key fob in pocket, common today, is not RS def was driving a nearby stolen car

A key fob in one’s pocket, common today, is not reasonable suspicion defendant was driving a nearby stolen car. The seizure was suppressed. United States v. Craddock, 2016 U.S. App. LEXIS 20118 (8th Cir. Nov. 8, 2016):

In this case, the key fob’s incriminating character was not immediately apparent upon plain feel. Officer Prichard testified that he was not able to observe the person driving the car or even identify whether the individual was male or female. Officer Prichard did not observe Craddock exit the vehicle, and Officer Prichard had to turn his patrol car around several times in order to locate Craddock, who did not attempt to flee. While Craddock was relatively close to the stolen vehicle and behaving nervously, circumstances which make this question close, feeling an unidentified key fob in Craddock’s pocket did not provide Officer Prichard with probable cause to conclude that the key fob belonged to the stolen Pontiac. Key fobs are extremely common items carried in the pockets of a large portion of the population on a daily basis. As a result, without more information, Officer Prichard could not have reasonably associated the key fob with the stolen Pontiac at that point. See United States v. Bailey, 417 F.3d 873, 877 (8th Cir. 2005) (explaining that a hunch is insufficient to provide reasonable suspicion, much less probable cause). It was not until Officer Prichard removed the key fob from Craddock’s pocket and observed the Pontiac emblem that he had reason to associate the key fob with the stolen vehicle. Thus, as in Minnesota v. Dickerson, the officer required “a further search, one not authorized by Terry or by any other exception to the warrant requirement” to determine the item’s incriminating character. 508 U.S. at 379. Accordingly, the key fob’s seizure violated the Fourth Amendment.