D.D.C.: Merely touching a car trying to see inside it with a flashlight wasn’t a trespass

Police touching defendant’s car when the police looked in it and saw a gun wasn’t a trespass under Jones, and then they forced their way in. Jones involved installing a tracking device on the car. This is not a “ringing endorsement” of what happened there, but the court’s not suppressing because the contact with the car was incidental and didn’t involve a trespass. United States v. Gorham, 2024 U.S. Dist. LEXIS 4953 (D.D.C. Jan. 10, 2024):

In this case, Metropolitan Police Department (“MPD”) officers peered into the defendant’s unoccupied parked car with the aid of a handheld flashlight, observed a weapon, and forced the car open in order to recover it. Defendant’s attempt to suppress the firearm began as a vague smorgasbord of theories, but it eventually crystallized into a motion based primarily on the Supreme Court’s decision in United States v. Jones, 565 U.S. 400, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012), and the theory that the officers committed a common-law trespass in violation of the Fourth Amendment by touching the car for the purpose of gathering information. The Court finds that the Jones decision does not go so far as to reach the officers’ non-invasive interactions with the defendant’s car; nor was the unoccupied automobile “seized” by the officers in violation of the Constitution. While this opinion should not be read as a ringing endorsement of the MPD operation at issue, the motion to suppress will be denied.

. . .

The same simply cannot be said here. While the officers’ occasional use of their hands may have facilitated or improved their ability to look inside the car, the body-worn camera footage shows that physical contact was not necessary to enable Officer Schemmel to look inside, and indeed, he was not touching the car when he saw the weapon and signaled “1-800.” Defendant has thus failed to establish that the only alleged constitutional violation — touching the car — communicated any information that was not otherwise available through the officers’ lawful use of their flashlights.

The Court’s decision should not be interpreted as a license for officers to descend on a neighborhood and physically engage with the parked cars in any fashion. Whether other forms of conduct, such as climbing on top of a vehicle to peer inside, would constitute a “search” under Jones is not before the Court. But it should be noted that a court in the District of Columbia recently held that it was. See Tr. of Proceedings, United States v. Alexander, Case No. 2021 CF2 002232 (D.C. Sup. Ct. Oct. 30, 2023), Ex. in Supp. of Def.’s Mot. [Dkt. # 36-8] at 8 (“I therefore find and conclude that by climbing onto the defendant’s car and putting their hands and their faces right up on the windshield to look inside for the purpose of seeing more inside than they had been able to see just from standing on the street, on the outside of the car, that that was a search within the meaning of the Fourth Amendment.”). The Court simply holds today that an officer’s mere touching of a window in the course of a flashlight-enabled visual inspection does not constitute a “search” for purposes of the Fourth Amendment and United States v. Jones.