Prior case law on inserting a key in a car door is not a search is contrary to Jones and Jardines. As a parole search, however, it can be reasonable if the car is connected to the parolee. United States v. Dixon, 2020 U.S. App. LEXIS 40827 (9th Cir. Dec. 31, 2020):
Our holding in Currency, however, is clearly irreconcilable with the Supreme Court’s more recent holdings in United States v. Jones, 565 U.S. 400 (2012), and Florida v. Jardines, 569 U.S. 1 (2013). See Miller, 335 F.3d at 893. In the last decade, these cases have confirmed that a search occurs when the government “physically occup[ies] private property for the purpose of obtaining information.” Jones, 565 U.S. at 404. Thus, “Katz did not narrow the Fourth Amendment’s scope.” Id. at 408. Rather, “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test,” and a search may therefore be prohibited under either test. Id. at 409 (emphasis omitted). This common-law protection extends to vehicles notwithstanding lesser expectations of privacy, because “[i]t is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” Id. at 404; see also id. at 411.
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The level of suspicion required to determine whether a vehicle is subject to a warrantless search condition appears to be an issue of first impression in this circuit, although we have squarely addressed the issue in two related contexts. First, to search a residence “pursuant to a parolee’s parole condition, law enforcement officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Id. at 973 (quoting United States v. Howard, 447 F.3d 1257, 1262 (9th Cir. 2006)); see also Motley, 432 F.3d at 1080. And second, we have held that “once validly inside [a residence], [officers] need only ‘reasonable suspicion’ that an item is owned, possessed, or controlled by the parolee or probationer.” Bolivar, 670 F.3d at 1095 (citing United States v. Davis, 932 F.2d 752, 757-58 (9th Cir. 1991)). We have thus yet to address the degree of knowledge that police must have to establish that an object outside of a parolee’s residence is subject to the parolee’s warrantless search condition.
We hold that before conducting a warrantless search of a vehicle pursuant to a supervised release condition, law enforcement must have probable cause to believe that the supervisee owns or controls the vehicle to be searched. Our en banc decision in Motley is instructive. There, we first adopted the rule that before conducting a warrantless search pursuant to a parolee’s parole condition, “officers must have probable cause to believe that the parolee is a resident of the house to be searched.” Motley, 432 F.3d at 1080. We emphasized that this requirement “protects the interest of third parties”—a consideration that carried through our related precedents. Id. For example, we explained that officers “must have ‘reasonable grounds for believing’ that the subject of the warrant resides in the apartment” before executing an arrest warrant. Id. at 1079 (quoting Perez v. Simmons, 884 F.2d 1136, 1140 (9th Cir. 1989), as amended 900 F.2d 213 (9th Cir. 1990), as corrected 998 F.3d 775 (9th Cir. 1993)). This avoided the risk of “diminishing the Fourth Amendment protections owed to [a third party] homeowner.” Id.
We see no reason to depart from this standard with respect to a supervisee’s vehicle. As in Motley, a reasonable suspicion standard runs the risk of officers conducting intrusive searches on vehicles that have no connection to the individual subject to the search condition. This case provides informative examples: Dixon attested that the police initially confused his minivan with another parked next to it, and that they also threatened to break into a nearby Audi. Both of these vehicles belonged to unrelated third parties. Applying a reasonable suspicion standard would place innocent third parties at heightened risk of having their vehicles searched simply because Dixon dropped his car keys next to their locations.
Moreover, requiring probable cause that the vehicle to be searched belongs to or is controlled by the suspect subject to the search condition is consistent with the framework we outlined in Bolivar and Davis, which addressed the level of suspicion required for objects within a residence. In Bolivar, we recognized that under Motley, law enforcement must first determine that there is probable cause that the residence is subject to the parolee’s warrantless search condition. See Bolivar, 670 F.3d at 1095. But once officers have made this initial determination, reasonable suspicion applies to the “downstream issue of the level of certainty that the parolee owns, possesses, or controls a particular item within the home.” Id. (emphasis omitted). For example, in Davis, we applied the reasonable suspicion standard in assessing whether officers had reason to believe that a safe located in a probationer’s bedroom in a shared apartment belonged to the probationer and not to his roommate. 932 F.2d at 758-59. But the minivan here, unlike the safe in Davis, was not found inside Dixon’s residence, such as parked in his garage or in an assigned parking space. Thus, law enforcement had not yet made an initial probable cause determination—in other words, whether Dixon owned or controlled the minivan was not a “downstream” issue. See Bolivar, 670 F.3d at 1095.