D.Mont.: Testing a key in house locks to see if it works was a trespass under Jones and Jardines requiring a SW

Defendant was admitted to a mental hospital after a police call to an erratic person. Because of his apparent mental condition, his backpack was searched by hospital guards. That revealed a knife, a gun, and a house key. ATF was called about the gun. ATF FedExed the key to an ATF agent where defendant was believed to live. The recipient took the key to the house they believed defendant was associated with and tried the key in multiple locks. It didn’t work in doors, but it opened the garage. The office unlocked the door and just barely moved door just to know it could be opened. “The question before the Court is whether the insertion of a key into an attached garage’s lock by a federal agent is a search requiring a search warrant or warrant exception. The Court holds that it is.” United States v. House, 2019 U.S. Dist. LEXIS 215962 (D. Mont. Dec. 16, 2019):

It’s unlikely the Supreme Court would agree the insertion of a key into a home’s lock is a “minimal intrusion” that can be done without a warrant or probable cause in light of its statement that the Fourth Amendment “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.” Jardines, 569 U.S. at 6. Here, Agent Young inserted a key into three different locks on two different doors. While that might not be the epitome of “trawling for evidence with impunity,” it is nonetheless an uninvited physical intrusion of the home for the purpose of obtaining information, which is close enough.

It’s also unlikely the Supreme Court would agree that because the information sought is readily available by other means, no warrant is needed. That reasoning is at odds with what normally constitutes exigent circumstances justifying warrantless intrusions. For instance, the destruction of evidence is considered an exigent circumstance justifying a warrantless search. Illinois v. McArthur, 531 U.S. 326, 331, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001). So, too, is a credible threat of immediate danger. McArthur, 531 U.S. at 331. Contrary to the Seventh Circuit’s reasoning, it’s therefore less justifiable to conduct a warrantless search to obtain information when the information is readily available by other means.

The Court holds the “minimal intrusion” exception argued by the government does not justify the search in this case. Because the government committed a warrantless search and no recognized warrant exception is present, the evidence must be suppressed.

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