{"id":7563,"date":"2012-10-04T10:02:18","date_gmt":"2012-08-11T08:40:57","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-08-11T08:40:57","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=7563","title":{"rendered":"Cal.1: Assuming putting a key in the door to test it is a “search,” it was reasonable"},"content":{"rendered":"

Struggling with whether putting a key in the door is a search, the court determines that it doesn\u2019t have to decide that question. Assuming that it is a search, it was reasonable and virtually de minimus. People v. Robinson<\/a>, 208 Cal. App. 4th 232, 145 Cal. Rptr. 3d 364 (1st Dist. 2012):<\/p>\n

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. \u201cThe touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined \u2018by 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.\u2019 [Citation.]\u201d (United States v. Knights (2001) 534 U.S. 112, 118\u2013119 [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).) \u201cWhether an officer’s conduct was reasonable is evaluated on a case-by-case basis in light of the totality of the circumstances.\u201d (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.)<\/p>\n

a. The Minimal Intrusion Exception to Warrant Requirement<\/p>\n

\u201c[I]n most criminal cases,\u201d the balance between an individual’s Fourth Amendment interests and the promotion of legitimate governmental interests \u201cis 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) \u2026.\u201d (Loder v. City of Glendale (1997) 14 Cal.4th 846, 867\u2013868 [59 Cal. Rptr. 2d 696, 927 P.2d 1200].) Nevertheless, the United States Supreme Court has \u201cmade 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.\u201d (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 \u201ceven if the challenged action triggers the protections of the Fourth Amendment, a \u2018minimally intrusive\u2019 action \u2018may be reasonable in view of the government interests it serves.\u2019\u201d (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 \u201cminimal\u201d intrusion]; Hayes v. Florida (1985) 470 U.S. 811, 816\u2013817 [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 \u201cde minimis\u201d 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].)<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-7563","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7563","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=7563"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/7563\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=7563"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=7563"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=7563"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}