The removal of defendant’s key fob from his pocket to locate his car violated a reasonable expectation of privacy and required suppression of the identity of his car. United States v. Fennell, 2018 U.S. Dist. LEXIS 77041 (W.D. Tex, May 8, 2018):
Whether the pressing of a key Fob by a police officer is a search or reasonable is unclear. The Eighth Circuit concluded that an officer’s pressing of a Fob to identify a defendant’s car during the execution of a search warrant did not violate any reasonable expectation of privacy. United States v. Cowan, 674 F.3d 947, 956 (8th Cir. 2012). In United States v. Dasinger, 650 F. App’x 664, 672 (11th Cir. 2016), the Court assumed the defendant had a privacy interest in the identity of his car, but nevertheless concluded that the police officer’s manipulation of the key Fob was not unreasonable because under the totality of the circumstances the officers had a legitimate interest in investigating signs of criminal activity. There does not appear to be any settled law in the Fifth Circuit, but one case appears to allow the taking of keys and pressing on the Fob as reasonable, only if the search was contemporaneous with and incident to a lawful arrest. United States v. Koehler, 790 F.2d 1256, 1260 (5th Cir. 1986).
A recent Eighth Circuit opinion has approached the question slightly differently. In finding that the officer’s use of the key Fob exceeded the scope of a Terry stop and required suppression, the Court concluded that a defendant has a reasonable expectation of privacy in the contents of his pants pockets. United States v. Craddock, 841 F.3d 756, 760 (8th Cir. 2016).
This Court agrees with the Craddock decision that a person has a reasonable expectation of privacy in the contents of his pants pockets. In sum, without the Defendant’s consent, Officer Villanueva should not have removed the contents of the Defendant’s pocket and pressed the key Fob. The notation of the license plate number requires suppression.