CA3: Def’s trespass argument of using key to find door was interesting, but waived

Defendant raises an interesting argument, but it’s raised for the first time on appeal and thus waived: “Wheeler next argues that under the trespass theory of the Fourth Amendment articulated in United States v. Jones, 565 U.S. 400 (2012) and Florida v. Jardines, 569 U.S. 1 (2013), the officers’ use of a key seized from Wheeler first to enter the apartment complex at 500 Mills Avenue and then to ascertain which apartment Wheeler had access to by testing the key in each apartment’s lock, constituted warrantless searches that were per se unreasonable, requiring the suppression of the evidence resulting therefrom. We conclude that Wheeler has waived the Jones-Jardines theory by failing to raise it at trial and that to the extent he presses a claim based on the reasonable expectation of privacy principles announced in Katz v. United States, 389 U.S. 347 (1967), his argument fails.” United States v. Wheeler, 2018 U.S. App. LEXIS 18998 (3d Cir. July 12, 2018).*