ScotusBlog: Relist Watch by John Elwood:
To my lights, the next juiciest issue is Wheeler v. United States, 18-7187, which addresses whether law-enforcement officers may constitutionally insert a key they have seized into a locked apartment door to see whether it fits. After arresting Willis Wheeler, who was suspected of being a drug dealer, agents seized keys from his car. Although those keys did not work at Wheeler’s home, the agents took the keys to an apartment complex where Wheeler had been seen once and tested the keys there on various doors until they found a lock that opened, and then performed a protective sweep of that apartment. Using that information, police applied for a search warrant for the apartment with an application that made clear that they’d unlocked the door using seized keys. During the ensuing search, they found heroin inside a locked safe in the apartment. The district court denied Wheeler’s motion to suppress. The U.S. Court of Appeals for the 3rd Circuit affirmed, holding that Wheeler’s assertion of a Fourth Amendment violation under “reasonable expectation of privacy principles” lacked merit, and that he had failed to preserve the theory that the key test constituted a common-law trespass.
Before the Supreme Court, the government acknowledges that “some disagreement exists among the courts of appeals as to whether a key test can violate the Fourth Amendment.” But the government argues that “no circuit has held that evidence” obtained as the fruit of a key test “should be suppressed where, as here, it was ultimately obtained during a search conducted pursuant to a warrant” and the authorizing magistrate was aware of the warrantless key test. The parties also dispute whether a criminal defendant can raise a new Fourth Amendment suppression theory for the first time on appeal. The key-test issue arises frequently and is obviously important; the question here seems to be whether this case is still an attractive vehicle in light of the warrant and the preservation issue.