Cal.1: Assuming putting a key in the door to test it is a “search,” it was reasonable

Struggling with whether putting a key in the door is a search, the court determines that it doesn’t have to decide that question. Assuming that it is a search, it was reasonable and virtually de minimus. People v. Robinson, 208 Cal. App. 4th 232, 145 Cal. Rptr. 3d 364 (1st Dist. 2012):

Ultimately, we need not determine whether testing the key in the lock was a search because, even assuming it was a search, the search was not unreasonable. “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ [Citation.]” (United States v. Knights (2001) 534 U.S. 112, 118–119 [151 L. Ed. 2d 497, 122 S. Ct. 587] (Knights); People v. Sanders (2003) 31 Cal.4th 318, 333 [2 Cal. Rptr. 3d 630, 73 P.3d 496] (Sanders); see also People v. Boulter (2011) 199 Cal.App.4th 761, 768 [131 Cal. Rptr. 3d 185] (Boulter).) “Whether an officer’s conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances.” (In re Raymond C. (2008) 45 Cal.4th 303, 307 [86 Cal. Rptr. 3d 110, 196 P.3d 810]; see also Knights, at p. 118; Sanders, at p. 333; Boulter, at p. 768.)

a. The Minimal Intrusion Exception to Warrant Requirement

“[I]n most criminal cases,” the balance between an individual’s Fourth Amendment interests and the promotion of legitimate governmental interests “is struck in favor of the procedure described by the warrant clause (viewing a search as reasonable if conducted pursuant to a warrant that has been issued by a neutral magistrate upon a showing of probable cause) ….” (Loder v. City of Glendale (1997) 14 Cal.4th 846, 867–868 [59 Cal. Rptr. 2d 696, 927 P.2d 1200].) Nevertheless, the United States Supreme Court has “made it clear that there are exceptions to the warrant requirement. When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, [it] has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” (Illinois v. McArthur (2001) 531 U.S. 326, 330 [148 L. Ed. 2d 838, 121 S. Ct. 946], italics added.) In the present case, we focus on the minimal nature of the intrusion involved in testing the key, because “even if the challenged action triggers the protections of the Fourth Amendment, a ‘minimally intrusive’ action ‘may be reasonable in view of the government interests it serves.’” (U.S. v. $109,179 in U.S. Currency (9th Cir. 2000) 228 F.3d 1080, 1087, fn. omitted; see also, e.g., New York v. Class (1986) 475 U.S. 106, 117 [89 L. Ed. 2d 81, 106 S. Ct. 960] [officer’s search of car dashboard for vehicle identification number obscured by papers was a “minimal” intrusion]; Hayes v. Florida (1985) 470 U.S. 811, 816–817 [84 L. Ed. 2d 705, 105 S. Ct. 1643] (Hayes) [suggesting in dicta that officers could seize and fingerprint a suspect in the field, a procedure the high court characterized as a nonintrusive search, on the basis of reasonable suspicion]; Pennsylvania v. Mimms (1977) 434 U.S. 106, 111 [54 L. Ed. 2d 331, 98 S. Ct. 330] (Mimms) [order that driver of properly detained vehicle get out of car was “de minimis” intrusion]; Arizona v. Johnson (2009) 555 U.S. 323, 331 [172 L. Ed. 2d 694, 129 S. Ct. 781] [citing Mimms with approval]; United States v. White (9th Cir. 1985) 766 F.2d 1328, 1332 (White) [border patrol agent’s act of pushing down on the trunk of an automobile to determine whether the trunk contained heavy objects requiring further investigation, if a search, was a reasonable minimal intrusion].)