Cal.1st: Putting key into a lock was reasonable under the circumstances

Saying it was a close question, putting a key found in an abandoned car into a lock to see if defendant had access to the property was reasonable without a warrant. People v. Robinson, 200 Cal. App. 4th 552, 133 Cal. Rptr. 3d 307 (1st Dist. 2011):

On that issue, defendant contends that testing the key in the lock was a search that could only be performed pursuant to a warrant. It is a close question whether inserting and turning the key constituted a search. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” (United States v. Jacobsen (1984) 466 U.S. 109, 113, fn. omitted.) The court in U.S. v. Concepcion (7th Cir. 1991) 942 F.2d 1170, 1172 (Concepcion), concluded that testing a key in an apartment door lock was a search, reasoning: “A keyhole contains information—information about who has access to the space beyond. As the [F]ourth [A]mendment protects private information rather than formal definitions of property, [citations], the lock is a potentially protected zone. And as the tumbler of a lock is not accessible to strangers …, the use of an instrument to examine its workings (that is, a key) looks a lot like a search. … [¶] Because the agents obtain information from the inside of the lock, which is both used frequently by the owner and not open to public view, it seems irresistible that inserting and turning the key is a ‘search’.” (See also Arizona v. Hicks (1987) 480 U.S. 321, 324-325 [officer’s act of turning over a turntable to read its serial number constituted a search]; Portillo-Reyes, supra, 529 F.2d at p. 848.)

On the other hand, other courts have concluded that defendants had no reasonable expectation of privacy in external, publicly-accessible locks and/or that insertions of keys into such locks were not searches. The court in U.S. v. Salgado (6th Cir. 2001) 250 F.3d 438, 456 (Salgado), held that “the mere insertion of a key into a lock, by an officer who lawfully possesses the key and is in a location where he has a right to be, to determine whether the key operates the lock, is not a search.” The court emphasized that the defendant’s apartment door was accessible to anyone passing through a hallway open to the public, and the function of the apartment door lock was to protect and keep private the contents of the apartment itself. (Id. at pp. 456-457; see also U.S. v. Hawkins (1st Cir. 1998) 139 F.3d 29, 33, fn. 1 [“insertion of a key into the lock of a storage compartment for the purpose of identifying ownership does not constitute a search”]; United States v. Lyons (1st Cir.1990) 898 F.2d 210, 212-213 (Lyons) [insertion of key into padlock of storage unit for purpose of identifying ownership did not infringe on any reasonable expectation of privacy]; United States v. DeBardeleben (6th Cir. 1984) 740 F.2d 440, 444 (DeBardeleben) [the defendant had no “reasonable expectation of privacy in the identity of his vehicle”]; Mathis v. State (Alaska 1989) 778 P.2d 1161, 1165 [“Insertion of the key did not constitute a search of the locker, but merely an identification of it as belonging to the [defendants].”]; People v. Carroll (1973) 12 Ill.App.3d 869 [299 N.E.2d 134, 139] [insertion and turning of key not a search].)

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. “As a general rule, the question of whether a particular practice is unreasonable, and thus violates the Fourth Amendment, ‘“is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”’ (Skinner v. Railway Labor Executives’ Assn. [(1989) 489 U.S. 602, 619], quoting from Delaware v. Prouse (1979) 440 U.S. 648, 654, and United States v. Martinez-Fuerte (1976) 428 U.S. 543.) ‘Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.’ (Bell v. Wolfish (1979) 441 U.S. 520, 559.)” (People v. King (2000) 82 Cal.App.4th 1363, 1371; see also Concepcion, supra, 942 F.2d at pp. 1172-1173.) Thus, “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.)

. . .

The other critical consideration is the justification for the intrusion. In the present case, testing the key in the lock “served the discrete investigative purpose of confirming that” defendant had access to 321 Sanford. (Moses, supra, 540 F.3d at p. 272; see also Lyons, supra, 898 F.2d at p. 213 [“the insertion of the key into the padlock was merely a means of identifying a storage unit to which [the defendant] had access”]; DeBardeleben, supra, 740 F.2d at p. 443 [“There was therefore a legitimate reason to insert the keys … to see whether they fit in order to identify that automobile as belonging to [the] defendant for purposes of obtaining a search warrant.” (Fn. omitted.)].) Moreover, regardless of whether the police had probable cause to believe that there was evidence inside the residence without trying the key in the lock, the police certainly reasonably suspected the residence was connected to the crime under investigation. …

How can they not take Scalia more seriously? “A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987).