E.D.Pa.: Use of a key fob to identify defendant’s vehicle is not a search; it’s commonly available technology under Kyllo

Use of a key fob to identify defendant’ vehicle is not a search invading a reasonable expectation of privacy. United States v. Burgess, 2019 U.S. Dist. LEXIS 206776 (E.D. Pa. Nov. 29, 2019):

Analogizing this case to those in which police physically insert a key into a lock to determine if the key belongs to the car, Burgess argues that using a key fob to identify a vehicle constitutes an “electronic intrusion” because of the transmission of signals into and from the vehicle. We are not persuaded. Indeed, when police use flashlights to illuminate an object, they are transmitting light energy onto the object. However, as the Supreme Court has recognized, “the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” Texas v. Brown, 460 U.S. 730, 740, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983) (plurality opinion) (collecting cases); United States v. Dunn, 480 U.S. 294, 305, 107 S. Ct. 1134, 94 L. Ed. 2d 326 (“Here, the officers’ use of the beam of a flashlight, directed through the essentially open front of respondent’s barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment”); United States v. Hawkins, 646 F. App’x 254, 257 n.5 (3d Cir. 2016) (“it is ‘beyond dispute that [an officer’s] action in shining his flashlight to illuminate the interior of [a] car trenche[s] upon no right secured to the latter by the Fourth Amendment'”) (quoting Brown, 460 U.S. at 739-40).

Burgess’s description of the key fob as “modern technology” and his attempt to bootstrap this case to Kyllo v. United States, 533 U.S. 27, 34, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), is similarly unavailing. In Kyllo, the Supreme Court said of a thermal imaging system used by law enforcement to measure heat inside a home that “obtaining by sense-enhancing technology any information regarding the interior of [a] home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area[] constitutes a search—at least where (as here) the technology in question is not in general public use.” 533 U.S. at 34 (internal quotations and citations omitted). That is not the case here. The “modern technology” at issue here is a key fob, which, unlike a thermal imaging system, is widely available to the public.